1/ I have a few thoughts about Mitchell’s letter that I wanted to share. Random order. Mitchell says no rational prosecutor would bring a cases based on the evidence before the Committee, but that’s not really the issue here.
2/ I have never, as a prosecutor, concluded I would not move forward because the victim’s statement was uncorroborated, BEFORE investigators had the chance to investigate. That’s not how it works. Decisions about whether to prosecute are made after investigation is complete.
3/ Even if you agree with Mitchell’s assessment that Dr. Ford’s version of events is uncorroborated (& I don’t) it makes no sense to decide against prosecution before you know all the facts.
4/ Not to keep beating a dead horse here, but Mitchell saying she didn’t believe "a reasonable prosecutor would bring this case based on the evidence before the Committee," isn’t a very helpful conclusion when the Comm doesn’t have evidence before it because, no investigation.
5/ So, we’re in Senate confirmation proceedings & Senators must decide whether to hire Kavanaugh for a job he’ll keep for the rest of his life. But Mitchell doesn’t assess the evidence in a way that’s useful for hiring, instead considering whether K should be charged criminally.
6/ Here’s how she explains that decision: 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...in that legal context.
7/ And, here’s her conclusion: “A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them.” I disagree.
8/ This isn't a he said/she said. 2 men were in the room. & there’s no reason for Ford to put Kav’s friend in as a defense witness if she’s making it up. Mitchell mischaracterizes the basic fact pattern & is apparently, unconcerned by the failure to interview a material witness
9/ HS/SS May be hard cases, but not impossible. Investigators work to see what they can corroborate. Here, no effort at corroboration was made before Mitchell reached her conclusion, which is negligent since at a minimum, folks Ford shared her story with could be interviewed.
10/ there is no clear legal standard for assessing misconduct in confirmation hearings. But it has never been proof beyond a reasonable doubt. It's probably a lot closer to this: remove yourself from the process if you can’t disprove credible allegations.
11/ After inserting the criminal standard & saying K can be confirmed in the absence of proof sufficient to convict him on criminal charges, she says witnesses, who haven’t testifed or been cross examined under oath, refute Ford. Or, criminal rules only apply if they benefit K.
12/ Until witness testify under oath and can be cross-examined, it's ridiculous to claim they refute/don't corroborate, if you're going to adhere to the criminal trial standard she uses. Minimum, FBI interviews are necessary.
13/ But even on their face, these statements aren't valuable or even remarkable, as there is no reason anyone except perhaps Judge would remember that night. Of course K, in testimony, dismissed Judge as an alcoholic & drug addict. #loyalty
14/ And Judge’s memory may not be reliable either. It may be that Ford, whose credibility is supported because she told her story before K was nominated ends, up being the most believable person. And the best corroboration may come from K himself.
15/ Kavanaugh’s July 1 Calendar has the boys Ford identifies getting together for (brew)skis & is potentially damaging to him & corroborative of her. It gives investigators lots of leads. No prosecutor would say this case shouldn’t be indicted until they’re all run out.
16/ Beyond this point, any discrepancies are reasons to investigate, not to decline prosecution. EVERY prosecutor knows that and the fact that Mitchell behaves disengenuously in this regard isn't in her favor here.
17/ Kavanaugh himself plays no role in Mitchell’s assessment. The obvious lies about HS yearbook comments he could have owned & regretted, the demeanor, the caginess about drinking - Mitchell ignores it all & concludes there’s no basis to indict in her expert judgment.
18/ Apologies for letting this get so long, but I wanted to point out some of the flaws in the analysis. I could have just said: this isn’t a criminal case & just because there not proof of guilt beyond a reasonable doubt, it doesn’t mean he belongs on the Supreme Court.
