Law & the Courts

Rachel Mitchell Explains Why She Wouldn’t Prosecute Kavanaugh in Memo to Senate Republicans

Rachel Mitchell, counsel for Senate Judiciary Committee Republicans (Tom Williams/Pool via REUTERS )

Rachel Mitchell, the Arizona prosecutor tapped by Senate Republicans to question Brett Kavanaugh and Christine Blasey Ford, explained in a memo why she wouldn’t bring criminal charges against the Supreme Court nominee if she were examining the sexual-assault allegations levied against him in her role as a prosecutor.

The five-page memo, obtained by the Washington Post, cites a number of inconsistencies in Ford’s Thursday testimony before the Senate Judiciary Committee in explaining why the allegations would not be sufficient to bring criminal charges absent corroborating evidence.

“A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that,” reads the memo, sent to Senate Republicans on Sunday evening. “Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them.”

“For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the [Senate Judiciary] Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard,” Mitchell added.

Mitchell, who leads the Maricopa County Attorney’s Office special victims division, argued that Ford’s inability to remember key details, including the location of the alleged assault and how she arrived home after fleeing the house, “raises significant questions.”

The memo also cites the disparities between the account of the assault Ford provided to the Washington Post and the account she detailed in a letter to Senator Dianne Feinstein, the ranking Democrat on the Judiciary Committee.

“According to the Washington Post’s account of her therapy notes, there were four boys in the bedroom in which she was assaulted. She told the Washington Post that the notes were erroneous because there were four boys at the party, but only two in the bedroom,” the memo reads. “In her letter to Senator Feinstein, she said ‘me and 4 others’ were present at the party. In her testimony, she said there were four boys in addition to Leland Keyser and herself. She could not remember the name of the fourth boy, and no one has come forward.”

Kavanaugh’s confirmation vote passed the Judiciary Committee along party lines on Friday, but Republicans, at the behest of Senator Jeff Flake of Arizona, have agreed to delay the final confirmation vote pending a one-week FBI investigation.

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