Some scattered thoughts about Mitchell’s memo:
1. A confirmation hearing is not a criminal trial and her declaration that she’s incapable of analyzing any question from a non-criminal perspective is embarrassing.
1. A confirmation hearing is not a criminal trial and her declaration that she’s incapable of analyzing any question from a non-criminal perspective is embarrassing.
2. The presumption of innocence in a criminal trial is a specific policy intervention meant to serve as a counterweight to the overwhelming advantages and resources of the govt relative to an individual defendant. It’s how make the state prove each element of the offense.
+ The presumption of innocence is a bulwark against state power, not a generally applicable maxim of how to conduct your affairs. A scotus nominee, chosen and defended by the executive and on the threshold of huge personal influence, has a healthy claim on state power.
+ Don’t believe it? Try to get the FBI to limit its inquiry into your own wrongdoing to four witnesses that don’t include yourself or two of the alleged victims. SCOTUS nominees don’t need a presumption of innocence. If anything, those seeking to stop them need a boost.
3. Mitchell’s memo considers whether a reasonable prosecutor would charge Kavanaugh based on the evidence before the committee. But no reasonable prosecutor would make a charging decision on such an artificially limited investigative record.
+ On Sunday evening, with no forensic interview of the victim, no serious interview of the alleged perpetrator, FBI still out in the field playing catch up interviewing other possible witnesses ... what reasonable prosecutor sits down to type out her final decision on the case?
4. Mitchell’s memo doesn’t consider all the evidence the committee has, limited as it is. No discussion of Kavanaugh’s evasions and inconsistencies, his calendar, the July 1 entry she pointed to in her own questions. It’s exclusively a sloppy broadside against Ford’s credibility.
5. Lastly, Mitchell’s memo misrepresents Ford’s testimony. This isn’t particularly subtle, though it is tedious to demonstrate. You can see Mitchell posed many of the questions her memo claims Ford failed to answer in the hearing transcript. And you can see Ford answering them.
