“A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that,” Mitchell writes in the memo, sent Sunday night to all Senate Republicans. “Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them.”
Mitchell continued: “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.”
The memo is likely to prompt significant pushback from Democratic senators, who have argued that Ford is not on trial and that Kavanaugh is merely interviewing for a job. But the memo is clearly aimed at assuaging the concerns of a handful of GOP senators who are on the fence about whether to vote to confirm Kavanaugh and are considering whose story — Ford’s or Kavanaugh’s — to believe.
The FBI is now investigating Ford’s accusations, as well as those of a second woman, Deborah Ramirez.
In the memo, Mitchell argued that Ford has not offered a consistent account of the alleged assault, including when exactly it occurred. Mitchell also noted that Ford did not identify Kavanaugh by name as her attacker in key pieces of evidence, including notes from sessions with her therapist — records that Ford’s lawyers declined to provide to the Senate Judiciary Committee.
Ford testified before the panel Thursday that she is “100 percent” sure Kavanaugh was her attacker.
“I believed he was going to rape me,” she told the panel. “I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from yelling. This is what terrified me the most.”
But in the memo, Mitchell also argued that Ford “has no memory of key details of the night in question — details that could help corroborate her account,” nor has Ford given a consistent account of the alleged assault. Noting that Ford did not remember in what house the incident allegedly occurred, or how she left the gathering and got back home, Mitchell said “her inability to remember this detail raises significant questions.”
Mitchell also stressed that nobody who Ford has identified as having attended the gathering — including Mark Judge, Patrick Smyth and Leland (Ingham) Keyser — has been able to directly corroborate Ford’s allegations. Keyser, however, has told the Judiciary Committee that she believes Ford’s account.
Mitchell, whom GOP senators selected to handle the questioning in last week’s hearing with Ford and Kavanaugh, is a registered Republican who is chief of the special victims division of the Maricopa County attorney’s office in Phoenix. Although she asked Ford all of the questions posed by Republican senators, she asked Kavanaugh only two rounds of questions until GOP senators began speaking again.
Mitchell stressed that she was “not pressured in any way to write this memorandum or to write any words in this memorandum with which I do not fully agree.” The memo obtained by The Post does not include any analysis of her questions to Kavanaugh.
“There is no clear standard of proof for allegations made during the Senate’s confirmation process,” Mitchell wrote in the memo. “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.”
The prosecutor joined a private meeting with all Senate Republicans on Thursday after the hearing, where she told the senators that after the eight hours of testimony she heard, she would not have prosecuted Kavanaugh for assault, according to two officials familiar with her remarks.
The committee is also sending to all Senate Republicans a detailed timeline of key events regarding Ford’s accusation, including when she first approached her congresswoman, Rep. Anna G. Eshoo (D-Calif.), with her allegations and the committee’s investigative work.