Bench Memos

Reviewing the Inconsistencies in Ford’s Testimony

The takeaway from Thursday’s Senate Judiciary Committee hearing is the striking number of inconsistencies and gaps that emerged from Dr. Christine Blasey Ford’s testimony. Rachel Mitchell, the Arizona prosecutor hired by the Committee to question the witnesses, has submitted her analysis, which agrees with my previous post’s conclusion that the evidence against Judge Kavanaugh is insufficient to meet both the evidentiary standard that applies to criminal trials and the preponderance of the evidence standard that applies to civil trials.

None of this is to suggest that Dr. Ford maliciously fabricated a story of sexual assault that never happened. Much of her testimony was compelling, and she seems to have suffered a horrible attack. But the widely acknowledged imperfections of human memory are known to operate even for events that are much more recent than 36 years ago. Here the allegations just do not add up to a reliable case against the particular man she identified as her attacker.

Here in brief is a list of inconsistencies in Dr. Ford’s testimony:

When was the party? To quote from Mitchell’s memo:

  • In a July 6 text to the Washington Post, she said it happened in the “mid 1980s.”
  • In her July 30 letter to Senator Feinstein, she said it happened in the “early 80s.”
  • Her August 7 statement to the polygrapher said that it happened one “high school summer in early 80’s,” but she crossed out the word “early” for reasons she did not explain.
  • A September 16 Washington Post article reported that Dr. Ford said it happened in the “summer of 1982.”
  • Similarly, the September 16 article reported that notes from an individual therapy session in 2013 show her describing the assault as occurring in her “late teens.” But she told the Post and the Committee that she was 15 when the assault allegedly occurred. She has not turned over her therapy records for the Committee to review.
  • While it is common for victims to be uncertain about dates, Dr. Ford failed to explain how she was suddenly able to narrow the timeframe to a particular season and particular year.
  • She alleges that she struggled academically in college, but she has never made any similar claim about her last two years of high school.

Where was the party? How did she get there or home?

  • Was the party near the Columbia Country Club, as she told the Washington Post, or between Ford’s house and the country club (an over seven-mile distance that she testified was an approximately 20-minute drive)?
  • She told the Washington Post she doesn’t remember how she got to the party or how she got home.
  • Upon being shown maps at the hearing, she replied “Correct” to the question, “Would it be fair to say that somebody drove you somewhere, either to the party or home from the party?”
  • Her memory of the attack itself is vivid, but she cannot say what happened after she left the house or identify who effectively rescued her and drove her home.

How many people were at the party? 

  • Ford’s 2012 therapist’s notes (as reported by the Washington Post) said four boys were involved and did not name her attacker. Her initial report to the Post said that was the therapist’s error and that it should have been four boys at the party but only two in the room.
  • She testified that contrary to what she wrote in a July 6, 2018 text to the Washington Post, PJ Smyth was not a “bystander” and was not in the room during the alleged assault.
  • Her July 30 letter: “me and four others” were at the gathering.
  • Written statement for polygrapher: She initially wrote “4 people,” crossed out “people” and changed it to “4 boys and a couple of girls.”
  • She testified before the Committee that at least those people were there, but there could have been others as well.
  • All of the alleged corroborating witnesses she named—Smyth, Mark Judge, and Leland Keyser—denied knowledge of such a gathering in statements to the Committee submitted under penalty of felony (18 U.S.C. § 1001).

Additional issues with Ford’s July 30 letter:

  • She could not confirm under oath that the Feinstein letter was written on July 30.
  • Her letter stated that Kavanaugh pushed her into the bedroom.
  • At her hearing, she backtracked, testifying that “I was pushed from behind, so” she “can’t promise that Mark Judge didn’t assist with that.” That raises the question of how she could be sure Kavanaugh had pushed her at all, if it was from behind.
  • According to her July 30 letter, after the assault, Kavanaugh and Judge were talking to other attendees downstairs while she hid in the bathroom.
  • In her testimony, she said she could not hear their conversation.

Psychological impact:

  • Ford told the Washington Post the attack contributed to her symptoms of anxiety and PTSD. The term “contributed” suggests there were other causes.
  • In her testimony, when asked if anything else contributed to her anxiety and PTSD, she answered, other than “biological predispositions,” as follows: “Environmentally, not that I can think of. . . . Certainly, . . . nothing as striking” as the assault.
  • The first documentation of her memory of the incident was the therapist’s notes, but who has seen those notes? The Washington Post saw at most only excerpts of those notes, and Ford testified she can’t remember whether she provided them the actual notes or only her summary of them.
  • Full documentation of Ford’s treatment and potentially other medical conditions are clearly relevant to explaining how her memory might have been formed or changed. And there is a vast amount of scientific study about the frailty of memory and witness ID. Yet her attorneys refused to turn over any medical records to the Judiciary Committee, including any of her therapy notes.

Fear of flying: 

  • When Chairman Grassley became aware of her allegations on September 16, he instructed his staff to begin an immediate investigation. The next day, her attorney, Debra Katz, appeared on morning shows asking that the Committee hold a public hearing so that her client may testify. The Committee immediately honored that request later that day, scheduling a hearing for one week later.
  • Grassley was incredibly flexible about accommodating her testimony, stating on September 19: “I recognize that testifying publicly about sexual assault allegations may be difficult for Dr. Ford, so I have offered her the opportunity to testify in any of four possible venues: (1) a public hearing; (2) a private hearing; (3) a public staff interview; or (4) a private staff interview. I am even willing to have my staff travel to Dr. Ford in California—or anywhere else—to obtain her testimony.”
  • Nonetheless, Ford’s attorneys represented to the Committee that their client was afraid of flying, and the hearing was unnecessarily delayed.
  • Ford testified before the Committee “it wasn’t clear to me that” she could testify in California instead of having to fly to Washington.
  • She also testified that she flies for work and leisure and flew to Washington to testify.

Other difficulties with her testimony:

  • Ford does not remember the time, place, or how she arrived or got home, but she does remember that she had exactly one beer and was not on any sort of medication.
  • She testified that her longtime friend, Leland Keyser, did not follow up with her to ask why she suddenly disappeared.
  • Ford does not remember if she took the polygraph test in Maryland on the same day as her grandmother’s funeral or the next day. As Mitchell noted in her memo, “It would have been inappropriate to administer a polygraph to someone who was grieving.”
  • Ford’s testimony is inconsistent with Kavanaugh’s calendar, which has him out of town most weekends and records no social event matching her description. Senator Sheldon Whitehouse has posited a theory that maybe the July 1 entry, “Go to Timmy’s [Gaudette] for Skis w/ [Mark ]Judge, Tom [Kane], PJ [Smyth], Bernie [McCarthy], Squi [Chris Garrett]” refers to that event, but for numerous reasons, it clearly does not:
    • Neither Ford nor Keyser is mentioned in the calendar.
    • Ford never mentioned Gaudette, Kane, McCarthy, or Garrett in her account.
    • If Garrett, to whom she was closest, was present, it is odd that he would be the boy whose name she did not recall.
    • Before testifying, she never acknowledged more than one unnamed attendee, and her testimony that there could have been others present at the party came only after Kavanaugh’s calendar was released.
    • She testified the house was “in the Bethesda area,” and Gaudette’s house was in Rockville, at an address over 10 miles away from the Columbia Country Club.
    • Ford testified that the assault occurred “[e]arly in the evening” at “kind of a pre-gathering” and that Kavanaugh and Judge were “extremely inebriated, they had clearly been drinking prior.” But the July 1 entry followed another entry that day indicating a workout, and Kavanaugh testified workouts usually ran from about 6:00 to 8:00 p.m.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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