The outside prosecutor that Senate Republicans hired for Brett Kavanaugh’s hearing on sexual assault allegations is arguing in a memo that Christine Blasey Ford’s claim against him is “weaker” than a “he said, she said” case.
The memo from Rachel Mitchell, an Arizona prosecutor specializing in sex crimes, marks the strongest attempt by the GOP to discredit Ford’s accusation that the Supreme Court nominee sexually assaulted her in 1982. In the nine-page document sent to GOP senators on Sunday evening, Mitchell says Ford’s account has no corroboration, she “has not offered a consistent account of when the alleged assault happened,” has “struggled” to identify Kavanaugh by name, and has “no memory of key details” regarding the event.
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“A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that,” Mitchell wrote to the GOP. “I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-the-evidence standard.”
Mitchell’s memo to the 51 GOP senators mirrors her conclusion delivered on Thursday evening to the caucus just hours after Kavanaugh and Ford testified: That Ford’s accusations would not merit charges when viewed through a legal prism. She says that no senators urged her to write the memo, which deals primarily with Ford’s credibility rather than Kavanaugh, though she also admits in the memo that Kavanaugh’s confirmation is “not a trial.”
“There is no clear standard of proof for allegations made during the Senate’s confirmation process. But the world in which I work is the legal world, not the political world. Thus, I can only provide my assessment of Dr. Ford’s allegations in that legal context,” Mitchell wrote.
Indeed, the ultimate verdict on Kavanaugh will be reached by three Republican senators who sought an FBI probe of the allegations against Kavanaugh rather than base their votes off an emotional committee hearing last week. GOP Sens. Jeff Flake of Arizona, Susan Collins of Maine and Lisa Murkowski of Alaska are all undecided on Kavanaugh and hoping that a one-week investigation will remove the uncertainty over accusations against him from Ford and at least one other woman. Kavanaugh has fiercely denied the accusations.
The trio sought to halt Kavanaugh’s progress in the Senate in order to get an independent probe of the nominee. He will now miss the beginning of the Supreme Court’s new term, which began on Monday.
Democrats have lambasted the White House for putting artificial constraints on the number of witnesses the FBI is permitted to interview for its time-limited Kavanaugh inquiry, although Trump himself asserted on Twitter that the bureau is free to follow any leads it finds. Sen. Dianne Feinstein (D-Calif.) on Sunday asked the White House to release the “written directive” it sent the FBI outlining the parameters for its Kavanaugh investigation, which is not expected to result in any public release on its findings.
Collins said on Sunday that she’s “confident” in the FBI’s ability to conduct the investigation. Flake acknowledged in an interview on “60 Minutes” Sunday that “there’s a chance” the FBI probe doesn’t turn up new information and leaves senators with a difficult choice when Senate Majority Leader Mitch McConnell (R-Ky.) sets up votes on Kavanaugh late this week.
“Some of our colleagues said that ‘we’ll be back here one week from now. It’ll be worse,’” said Flake. “There is a chance that that will happen. I do think that we can make progress.”
GOP leaders warned Flake and other Republicans that more Kavanaugh allegations could appear this week as the FBI probes the Supreme Court nominee.