#9 Mitchell’s report clearing Kavanaugh is worse than a joke

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By George H Butcher III

Prosecutor Mitchell’s report cleared Kavanaugh of Blasey Ford’s accusation by using a flawed analysis and ignoring the most crucial evidence

Rachel Mitchell’s report clearing Justice Kavanaugh of Dr. Ford’s sexual-assault allegation is part of the answer to a crucial question. The question isn’t how the Republicans convinced everyone there’s no corroboration of Dr. Ford’s accusation. It’s how they convinced anyone? A predicate for appreciating the flaws in Ms. Mitchell’s report is understanding the certainty that Dr. Ford was at the July 1, 1982 house-party, as explained in Blog #8C.

In an earlier blog, I complimented Ms. Mitchell’s competent questioning of Justice Kavanaugh during his September 27, 2018 confirmation hearing. Unfortunately, that complementary view of her work does not extend to the report she wrote.

Ms. Mitchell’s report is entitled, “An Analysis of Dr. Christine Blasey Ford’s Allegations.” I don’t qualify as an expert in such matters. But, her report was catastrophically flawed for reasons which don’t require an expert to discern.

Ms. Mitchell’s analysis of the facts she considered was flawed, as described below. Moreover, she purposefully ignored the most relevant evidence.

A succinct characterization of Mitchell’s report on Dr. Ford’s sexual-assault allegation is, “it’s a sick joke” on the American people. The American public was the ultimate target of her report. However, it was provided to Republican senators for use in justifying their votes to confirm Justice Kavanaugh.

How did we get to this point in the discussion?

Blogs #1 to #4 describe proof that Justice Kavanaugh is guilty of sexually assaulting Dr. Ford. Blog #2 details the definitive evidence that she attended the July 1, 1982 house-party. Blog #3 and Blog #4 explain his admissions of guilt in 2018 and 1982, respectively.

Blogs #5A, #5B, and #6 describe evidence that Kavanaugh is the leader of a conspiracy among most or all of the other July 1 party attendees. Blog #10 will provide additional insight into that conspiracy.

Blogs #7A and #7B discuss the Republican coverup of the evidence of Kavanaugh’s guilt, particularly Senator Collins’ role. They also discuss various impacts of the coverup.

Blogs #8A and #8B explain the Republicans’ comprehensive systematic approach for undermining and rejecting victims’ allegations. Their systematic approach has eleven pillars or components. This blog post focuses on component number 7.

Blog #8C exposed the claim that the FBI confirmed “there is no corroboration” of Ford’s allegation as falsified or false. Blog #8C restates the proof that Dr. Ford was at the July 1, 1982 house-party. Blog #8D demonstrates that the proof Ford was at the July 1 party decimates Kavanaugh’s defense arguments.

Blogs #7C, #7D, #8A, and #8D describe the critical roles in the Republicans’ systematic approach played by the news media. Blog #8D describes the active roles played by several journalists.

Blog # 9

This is Blog #9 in my series of blog posts. It focuses on a critical component of the Republicans’ systematic approach for rejecting victims’ allegations – pillar 7. That component involves using purportedly independent experts, who really aren’t, to undermine a victim’s accusation. This blog post analyzes Rachel Mitchell’s report on Dr. Ford’s sexual-assault allegation.

Ms. Mitchell’s reached two conclusions, each indefensible!

Ms. Mitchell’s two critical conclusions are:

”… 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.”

“Preponderance-of-the-evidence” and “more-likely-than-not” have the same meaning. I’ll continue to use the latter term.

Neither or Ms. Mitchell’s conclusions could be justified based on an honest and competent analysis of the evidence. I fully explain and justify my viewpoint below.

Ms. Mitchell is undoubtedly competent since her credentials are impeccable. Thus, the outrageous flaws in her report described below are 100% attributable to a lack of honesty on her part.

Her report focused on an irrelevant evidence standard to make Kavanaugh’s defense look stronger

Ms. Mitchell’s report expressly indicates that her reasoning relates to whether a prosecutor would criminally charge Justice Kavanaugh. She does not explain or justify her assertion regarding the “more-likely-than-not” evidence standard.

Ms. Mitchell was fully aware that of the two evidence standards, only one is relevant to the Senate’s deliberations. The more-likely-than-not evidence standard is applicable, and the beyond-a-reasonable-doubt evidence standard is not applicable.

Yet, the more-likely-than-not is evidence standard is the one for which Ms. Mitchell provided no analysis. That disconnect requires an explanation, and I provide one below.

Mitchell’s report was deceptive from the outset regarding the evidence standard she used

According to paragraph #2 of her report, Ms. Mitchell wasn’t given any guidance concerning the evidence standard to use in her analysis. So, she used the legal standard that she would typically use as a prosecutor – beyond-a-reasonable-doubt.

But that’s absurd! The idea that she would have accepted the assignment without receiving such guidance isn’t credible. It likewise isn’t credible that she would have been hired by the Republicans without being given such direction.

Perhaps her statement is literally true in that there was no explicit “direction.” Maybe it was only tacitly agreed that she would use the beyond-a-reasonable-doubt standard.

But that would still make her statement substantively false deceptive in my view. It would also indicate that the Republicans didn’t want to take responsibility for her use of the irrelevant beyond-a-reasonable-doubt standard.

Thus, we can draw two conclusions about the evidence standard. First, Ms. Mitchell’s use of the criminal evidence standard reflects a conscious election by the Republicans. Second, that election wasn’t one that they could easily justify.

Her report was intended to support the Republican con job on the public

So evidently, Ms. Mitchell’s report wasn’t intended to be relevant to an honest determination concerning Kavanaugh’s suitability. The discussion below provides corroboration for that conclusion.

In my opinion, Ms. Mitchell intended her report to be a hit job on Dr. Ford’s accusation and the Democrats. Moreover, the report was intended from its conception by the Republicans to support their con job on the American people. That reflects the implementation of pillar 7 of their systematic approach.

She supported the con job’s two components and then went the extra mile

The con job has two components. The first is that Justice Kavanaugh’s testimony is credible. The second is that there is no corroborative evidence for Dr. Ford’s testimony regarding her allegation.

Ms. Mitchell supported the first component of the con job by completely ignoring the subject of Kavanaugh’s credibility. She unjustifiably ignored the apparent evidence of his lack of credibility. Ignoring the topic of Kavanaugh’s credibility was worse than unjustifiable. It was wholly dishonest in my view.

Ms. Mitchell supported the second component of the Republican con in two principle ways. She ignored the obvious and compelling evidence that corroborates almost all of Dr. Ford’s recollections. She also attempted to undermine Dr. Ford’s prior consistent statements and turn them into a liability.

However, Ms. Mitchell went the extra mile in obscuring the evidence against Justice Kavanaugh. She undermined Dr. Ford’s credibility as though she were a defense counsel with very low standards regarding her own credibility.

That is an accurate description of Ms. Mitchell’s actions in constructing her report, in my view. But she absurdly presented her role as that of an “independent” prosecutor.

Rachel Mitchell’s report ignored the most relevant evidence

This blog post will evaluate Ms. Mitchell’s report from two perspectives. The first focuses on the evidence which she considered in her report and evaluates her analysis from that perspective. The second takes account of all of the relevant evidence and evaluates her report from that perspective.

The evidence Ms. Mitchell consciously ignored

To analyze Ms. Mitchell’s report based on the evidence that she considered, I have to ignore the corroborating evidence for virtually all of Dr. Ford’s recollections. So, I will ignore the evidence that she was present at the July 1 house-party attended by Kavanaugh and Judge.

I will also ignore the evidence of Kavanaugh’s knowingly false and purposefully deceitful testimony, and the implications thereof. And I will ignore his omission of Dr. Ford from his July 1, 1982 calendar entry, and the implications thereof. Those last two sets of evidence represent admissions of guilt by Justice Kavanaugh, thirty-six years apart.

Let’s review the limited subset of the evidence that Ms. Mitchell considered. It ignores all of the evidence that corroborates any details of Dr. Ford’s story. And it ignores everything that constitutes evidence of Justice Kavanaugh’s guilt, except Ford’s testimony.

Bizarrely, Ms. Mitchell’s report never mentions the date July 1, 1982, the house-party on that date, or the details thereof. So in her analysis of Dr. Ford’s allegation, she never mentioned the single most critical piece of evidence.

She even failed to follow the evidence during her questioning of Kavanaugh

Ms. Mitchell’s failure to follow the evidence is highlighted in an article by Phillip Bump of the Washington Post dated September 27, 2018. The article is entitled, “Kavanaugh is pressed on the key July 1 entry in his calendar. But only to a point.” Mr. Bump describes Ms. Mitchell’s questioning as follows:

“This is a central point to Ford’s allegation. Kavanaugh denies knowing her, denies being at a party with her. Here is an event in July where he was with several long-standing friends, two of whom were named by Ford and one of whom she’d been going out with.
But Mitchell’s next question completely fumbles the point.
MITCHELL: Have you reviewed every entry that is in these calendars of May, June, July and August of 1982.
KAVANAUGH: I have.
MITCHELL: Is there anything that could even remotely fit what we’re talking about in terms of Dr. Ford’s allegations?
KAVANAUGH: No.
That was it. Mitchell changed the subject.”

Mitchell failed to ask obvious followup questions about the July 1, 1982, house-party

Mr. Bump makes the following observations about her failure to ask the critical questions about the July 1 house-party. (Emphasis added.)

“There were all sorts of ways that Mitchell could have pressed the issue. How, for example, might Ford have been able to identify by name two of Kavanaugh’s close friends if she didn’t know him or had barely met him? Why isn’t it possible that this July 1 get-together was precisely the sort of event at which Ford alleges she was assaulted? That more than remotely fits the allegation? But she didn’t ask.”

Ms. Mitchell’s failure to pursue this critical line of questions was compounded in her report. She failed even to mention the crucial July 1, 1982 house-party in her report.

Mr. Bump notes that Justice Kavanaugh’s answer to Ms. Mitchell’s question was an obvious lie. That unavoidably false answer was a focus in Blog #3. But she ignored the lie both in her questioning of Kavanaugh and in her report.

The evidence that Ms. Mitchell considered

Ms. Mitchell’s report ignored the highly relevant evidence that is detailed further below, and its implications. So, what evidence did she consider in reaching the conclusions in her report?

The evidence considered by Ms. Mitchell was limited to:

Dr. Ford’s allegations, prior statements, and testimony;
Justice Kavanaugh’s and Mr. Judge’s denials and claims to have no recollection of the event described by Dr. Ford;
Mr. Smyth’s statement that he had no recollection of the event described by Dr. Ford; and
Ms. Keyser’s statement that she had no recollection of the event described by Dr. Ford and no recollection of having met Justice Kavanaugh.

Ms. Mitchell’s report was dishonest from the outset concerning the evidence

Her report dishonestly characterized the subset of evidence that she considered. She described it as “the evidence before the committee.” But that was a blatant lie. The evidence before the committee included all the evidence she ignored.

The evidence Ms. Mitchell ignored in her analysis was not hidden or difficult to discern. It was plainly visible in the record of the confirmation hearings. For example, it was obvious that the July 1 house-party was highly relevant. Kavanaugh’s false testimony was also evident.

Ms. Mitchell’s report, which didn’t mention the July 1 event, was dated September 30, 2018. But Mr. McCormack’s September 29 article attempted to address Kavanaugh’s July 1, 1982 calendar entry. Also, Mr. Benson’s and Mr. French’s October 1, 2018 articles spent considerable effort trying to debunk its importance. Finally, Mr. French did the same in his October 5, 2018 article.

Mr. French even tried to cover up Ms. Mitchell’s failure to consider the relevant evidence. He absurdly characterized her report as “summarizing Ford’s evidence against Kavanaugh.” Ms. Mitchell’s report did the opposite.

There is no honest rationale for Ms. Mitchell to have ignored either the July 1 house-party, Kavanaugh’s false testimony, or the implications thereof. So, I conclude that her report was not honestly constructed.

A group of former prosecutors referenced below charitably characterized her report as “partisan.” But those prosecutors weren’t fully taking account of the critical evidence that she consciously ignored. Thus, “dishonest” is a far more appropriate description of her report in my view.

She fixed the outcome of the beyond-a-reasonable-doubt analysis

Ms. Mitchell limited the evidence of guilt she considered to Ford’s testimony about a 36-year-old sexual assault. She also converted Ford’s prior consistent statements into a detriment by exaggerating the importance of insignificant differences in wording.

Accordingly, she put her thumb on the scale to assist Kavanaugh’s Republican supporters in the Senate, who hired her. The limited subset of the evidence she considered could not possibly have met the beyond-a-reasonable-doubt evidence standard.

By ignoring Kavanaugh’s dishonest testimony and general credibility, Ms. Mitchell put his credibility on par with Dr. Fords. So, her approach assured she would reach the irrelevant conclusion that a reasonable prosecutor would not prosecute him.

No complicated analysis was required to reach that conclusion. Thus, the process Ms. Mitchell went through, of supposedly justifying her conclusion by undermining Dr. Ford’s credibility, was a sham. It was unnecessary, given her assumptions.

She also attempted to fix the outcome of her more-likely-than-not analysis

Viewing the evidence Ms. Mitchell considered fairly, it could have met the more-likely-than-not evidence standard. Dr. Ford’s testimony was measured and highly credible. Justice Kavanaugh’s testimony was neither, even ignoring his false statements about her allegation and other matters.

Even ignoring Kavanaugh’s many lies, a trier-of-fact could have simply found Ford’s testimony to be more credible than his. Thus, it should have been impossible for Ms. Mitchell to conclude the evidence is insufficient to satisfy the more-likely-than-not standard.

So, Ms. Mitchell again put her thumb on the scale to assist Justice Kavanaugh’s supporters. She made a series of weak arguments about the limited evidence that she considered.

Her arguments were framed as if they related to the decision a criminal prosecutor might make. But it was never in doubt that the beyond-a-reasonable-doubt evidence standard wouldn’t be met, given the evidence she considered.

Her arguments were actually intended to create the appearance that the evidence she considered doesn’t meet the more-likely-than-not evidence standard. They were designed to accomplish that objective by creating the illusion that she had undermined Dr. Ford’s credibility.

But Ms. Mitchell’s arguments could have been dismissed in a proceeding using that lower evidence standard. The credibility of Dr. Ford’s testimony could easily have been the dominant consideration, even ignoring Kavanaugh’s lies and accounting for Mitchell’s efforts to undermine Ford’s credibility.

Using the criminal evidence standard helped make Mitchell’s efforts to attack Dr. Ford’s credibility appear to be less unreasonable

Her framing of the arguments, as if they related to a decision whether to prosecute, allowed her to present them as significant. The beyond-a-reasonable-doubt evidence standard permits weak arguments to be made by defense counsel as a potential basis for acquittal.

Ms. Mitchell’s weak arguments are much less effective when measured against the relevant standard – more-likely-than-not evidence. Thus, it shouldn’t have been possible for her to opine that Ford’s testimony alone doesn’t meet the more-likely-than-not evidence standard.

So, in her analysis, Ms. Mitchel ignored the lower evidence standard, i.e., the one that’s relevant to her report. She didn’t measure her arguments against the more-likely-than-not evidence standard and only mentioned it in a single sentence. She completely ignored it in analyzing the limited subset of the evidence that she considered.

Yet, Ms. Mitchell asserted, without analysis, that the evidence against Justice Kavanaugh doesn’t meet that lower evidence standard. There is no justification for her assertion, without even considering the critical evidence she ignored.

Various prosecutors published severely critical analyses of Ms. Mitchell’s report

Multiple prosecutors published severely critical analyses of Mr. Mitchell’s report on Dr. Ford’s sexual-assault allegation. Their criticisms of her poor judgment in accepting the assignment and constructing her report are brutal.

Excerpts from several articles containing such critiques are included in a separate Appendix to this blog post. The articles were published in The Intercept, the Washington Post, AZCentral, and New York Magazine.

These critiques by prosecutors related to whether Kavanaugh could have been criminally prosecuted using the beyond-a-reasonable-doubt evidence standard. Based on their collective analyses of her report, her assertion that no reasonable prosecutor would have charged Kavanaugh is BS.

Ms. Mitchell’s report is far worse than is captured by the prosecutors’ critiques.

The analyses by the various prosecutors of Ms. Mitchell’s report are excellent, and their criticisms are severe. But none of their articles considers that she consciously ignored the July 1, 1982 house-party. Nor do they account for the fact that the relevant evidence standard is more-likely-than-not.

Thus, Ms. Mitchell got off very easily in the prosecutors’ seemingly brutal critiques. Considering the matters their articles ignored, her report is beyond being a joke – its an abomination. An important context for my assessment is that she presented her report as reflecting an analysis by an “independent” prosecutor.

Key takeaways from the prosecutors’ critiques of Rachel Mitchell’s Report

Highlights from the articles critiquing the report are below.

The investigation of Dr. Ford’s allegation was insufficient to support Ms. Mitchell’s memo.
She failed to take account of the issues relating to Justice Kavanaugh’s credibility.
The report sent the message the Republicans wanted, but with the undeserved legitimacy of a “prosecutor’s” report.
Ms. Mitchell’s position was akin to a defense attorney, which disqualified her from delivering a prosecutor’s report.
If this were a trial, she would take the stand to explain her position. Her expert opinion would be subject to cross-examination for its basis and validity. And Dr. Ford would also be represented by an expert.
Ms. Mitchell should have known better than to accept the assignment and known better than to write her report.
The report was slanted, inconsistent with professional standards, and obscured rather than advanced the issue of Justice Kavanaugh’s fitness.
One of Ms. Mitchell’s former longtime deputies characterized her report as “absolutely disingenuous.”
The report was purely partisan and political.

The consistency of the criticisms of her report is damning. Moreover, those criticisms focused on whether the evidence is sufficient to meet the beyond-a-reasonable-doubt standard.

So, her assertion that the evidence doesn’t meet the more-likely-than-not evidence standard is truly outrageous. Her statement doesn’t deserve to be called a conclusion because she offered no analysis to support it. In my opinion, she couldn’t have even gone through a process of justifying the assertion to herself.

Analysis of Rachel Mitchell’s report – based on the evidence she considered in her report

So, what were the arguments that Ms. Mitchell relied on to conclude that the limited subset of evidence which she considered didn’t meet the beyond-a-reasonable-doubt evidence standard? At this point, we’re ignoring the proof the event Ford described was the July 1 house-party and the implications thereof. We’re also ignoring Kavanaugh’s false testimony and the implications thereof.

So, for the analysis in this section, there’s no corroboration of Dr. Ford’s account except her prior consistent statements. Her previous statements confirm that Dr. Ford made her allegation long before Kavanaugh was nominated to the Supreme Court. But they don’t corroborate any details of her account.

Ms. Mitchell made three categories of arguments

Ms. Mitchell’s arguments about the evidence she considered primarily fall into three categories.

First, there are details that Dr. Ford doesn’t recall, and her memory is not perfect.
Second, Dr. Ford didn’t provide certain details initially, like her assailant’s name and the year the assault happened. She didn’t specify the year of the incident before making her allegation against Justice Kavanaugh in 2018.
Third, Dr. Ford may have used slightly different words to describe her experience at various times. But, it’s not clear whether the variations in wording were due to Dr. Ford or the people she told about the incident.

Framing Ms. Mitchell’s arguments in this way highlights the fact that they are make-weights. Each category of argument tries to attack or criticize phenomena that are irrelevant or normal. As such, they could easily be rejected as irrelevant concerning the more-likely-than-not evidence standard. Given Dr. Ford’s superior credibility, they could also be dismissed by a trier-of-fact applying the criminal evidence standard.

Ms. Mitchell’s third category of argument is diabolical. By focusing on irrelevant differences in wording at different times, she turned Dr. Ford’s prior consistent statements into a negative consideration in assessing the evidence in her report. However, considered honestly, those prior consistent statements should be viewed as providing support for Dr. Ford’s account.

Another prosecutor’s analysis confirms the weakness of her second category of arguments

The Intercept article references a comment by a prosecutor about one of the arguments Ms. Mitchell made.

“One thing that particularly disturbed him was Mitchell’s focus on Ford’s inability to narrow down a date for when the alleged assault occurred. That, he said, ‘is absurd. It is offensive. It is laughable, because she knows better.’”

The other prosecutor’s critique was in the context of the beyond-a-reasonable-doubt evidence standard. So, Ms. Mitchell’s comment about narrowing down the date would be even more absurd, offensive, and laughable in the context of the more-likely-than-not evidence standard.

This example illustrates that Ms. Mitchell’s arguments are disingenuous. They don’t justify either her relevant or irrelevant conclusion.

Ms. Mitchell’s assertion that Dr. Ford’s accusation is weaker than a he-said, she-said case

Ms. Mitchell offered the following insidious argument to dishonesty undermine Dr. Ford’s allegations.

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

For the reasons described below, Ms. Mitchell’s statement was both flatly wrong and intentionally deceptive. Moreover, that assessment applies even before taking account of the critical evidence that she ignored.

Ms. Mitchell’s assertion was irrelevant but served as a tool to support the Republican con job

Ms. Mitchell’s statement was explicitly made relative to the “beyond-a-reasonable-doubt” evidence standard with which she works as a prosecutor. So, it was irrelevant to the consideration of Justice Kavanaugh’s nomination.

Then why did she say it? She made no effort to justify her assertion using the more-likely-than-not evidence standard.

She should have anticipated that her irrelevant statement would be misused to undermine Dr. Ford’s accusation against Justice Kavanaugh. That predictably happened in with Anneke E.Green, who may have been misled by Ms. Mitchell’s statement. Ms. Green’s reliance on Ms. Mitchell’s report is covered in Blog #8A.

Since it should have been expected, that outcome should be viewed as deliberate on Ms. Mitchell’s part. To speak plainly, she dishonestly structured her report to facilitate the Republicans’ efforts to undermine Ford’s allegation, in my opinion.

Ms. Mitchell’s assertion was dishonest, even before considering the corroboration of Dr. Ford’s account.

There are problems with Ms. Mitchell’s reasoning, even using the beyond-a-reasonable-doubt evidence standard and only using the evidence that she considered in her report.

The only other witness to the alleged sexual assault was Mr. Judge. He would be characterized as a co-defendant and not a fact witness. His denial, like Kavanaugh’s, was not a refutation of Ford’s allegation. It was a denial by an alleged assailant. So, Ms. Mitchell’s reference to a refutation of Dr. Ford’s allegation was dishonest, in my view.
No fact witness was in a position to corroborate Dr. Ford’s sexual-assault allegation. The fact-witnesses only observed the house-party, not the assault. So, their non-recollections of the house-party were not failures to corroborate her sexual-assault allegation. That characterization by Ms. Mitchell was also dishonest, in my opinion.

Analysis of Rachel Mitchell’s report – based on the relevant evidence

In my opinion, Ms. Mitchell’s report is flawed, even only considering the evidence she used in her analysis. However, those flaws pale compared to the grotesque flaws she created by ignoring the most relevant and probative evidence.

Ms. Mitchell should have accounted for the following considerations

The facts, evidence, and inferences that Ms. Mitchell ignored in her report, but should have considered, include:

Justice Kavanaugh’s blatantly false testimony about Dr. Ford’s allegation. Ms. Mitchell should have viewed it both as a measure of his credibility and an admission of guilt.
The correspondence between the event Ford described and Kavanaugh’s July 1, 1982 calendar entry. Also, his testimony about his practices in keeping his calendars.
That the evidence referenced in paragraph 2 proves that Ford’s event is the same as the July 1 house-party. So, it proves she was present at the house-party. In my opinion, no competent prosecutor, including Ms. Mitchell, could have missed common-sense proof #1, that the two events are the same. Common-sense proof #2, that Dr. Ford was at the July 1, 1982 house-party, should also have been readily evident.
Given paragraphs 2 and 3, no competent prosecutor, including Ms. Mitchell, could have missed Kavanaugh’s omission of Ford from his calendar entry. Such omission constitutes another admission of guilt, which was contemporaneous with the sexual assault.
Since the two events are provably the same, Kavanaugh’s July 1, 1982 calendar entry corroborates virtually all of the details of Ford’s memories of the house-party where she was sexually assaulted.
Accordingly, no witness testimony is necessary to corroborate her recollections about the house-party. Also, the recollections of all of the males who attended the house-party are provably unreliable or dishonest. They claim not to recall an event at which they were provably present.
Since Dr. Ford’s event is provably the July 1 house-party, none of the arguments used to question her recollections and credibility are viable. Those arguments are analyzed below.
Given that Dr. Ford was at the July 1 house-party, her testimony about being in the bedroom and being sexually assaulted is highly credible and almost certainly accurate.
Since Dr. Ford was at the house-party and in the bedroom with him, virtually all of Justice Kavanaugh’s testimony about her allegation was purposefully false. His knowingly false statements about her allegation are substantially greater than 30.

Ms. Mitchell’s failure to reflect any of the above in her report is inconsistent with an honest and competent analysis. I’m not suggesting she is incompetent. In my opinion, she consciously chose not to reflect an honest analysis in her report.

Ms. Mitchell’s arguments in defense of Kavanaugh fall into several categories

The irrelevance of Ms. Mitchell’s arguments in defense of Kavanaugh is established by the proof Ford was at the house-party. Her arguments are even irrelevant in relation to the beyond-a-reasonable-doubt evidence standard.

The six categories of defense arguments are defined and analyzed in Blog #8D. Ms. Mitchell made the following nine arguments in defense of Kavanaugh. The category of each argument is indicated.

“Dr. Ford has not offered a consistent account of when the alleged assault happened.” (Type I argument)
“Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name.” (Type II argument)
“When speaking with her husband, Dr. Ford changed her description of the incident to become less specific.” (Type I argument)
“Dr. Ford has no memory of key details of the night in question—details that could help corroborate her account.” (Type II argument)
“Dr. Ford’s account of the alleged assault has not been corroborated by anyone she identified as having attended—including her lifelong friend.” (Type III argument)
“Dr. Ford has not offered a consistent account of the alleged assault.” (Type I argument)
“Dr. Ford has struggled to recall important recent events relating to her allegations, and her testimony regarding recent events raises further questions about her memory.” (Type II argument)
“Dr. Ford’s description of the psychological impact of the event raises questions.” (Type I argument)
“The activities of congressional Democrats and Dr. Ford’s attorneys likely affected Dr. Ford’s account.” (Uncategorized partisan nonsense)

All of Ms. Mitchell’s arguments are irrelevant given the proof Dr. Ford was present on July 1, 1982

All of Ms. Mitchell’s arguments, except the last one, fall into the Type I, II, and III categories. As demonstrated in Blog #8D, such arguments are irrelevant since the event Ford described is provably the July 1 house-party.

Ms. Mitchell’s argument IX is partisan nonsense. There was no basis to suggest that anyone influenced Dr. Ford’s memories of the event where she was assaulted. Her memories were not affected by others since Kavanaugh’s calendar entry corroborates them.

The apparent purpose of this argument was to enable Ms. Mitchell to include an appendix that criticized the Senate Democrats. Both her argument and the appendix had no conceivable role in a prosecutor’s report.

So, argument IX is a demonstration of Ms. Mitchell’s partisan objectives. By itself, it puts the lie to any claim that her report reflects an independent, nonpartisan assessment of the evidence.

Here is what Ms. Mitchell should have concluded about Kavanaugh’s guilt

Ms. Mitchell should have made no mention of the irrelevant beyond-a-reasonable doubt evidence standard. But, if she did, she should have stated at a minimum that:

She was unable to conclude that a reasonable prosecutor would not decide to prosecute Justice Kavanaugh; and
The evidence against Justice Kavanaugh substantially exceeds that required to meet the more-likely-than-not evidence standard.

A more forthcoming conclusion would have included that a reasonable prosecutor would decide to prosecute Justice Kavanaugh:

for the sexual assault, if he could be charged, since there is compelling evidence of his guilt, and
for repeatedly giving false testimony about Dr. Ford’s allegation, which he unquestionably did.

What were the Republicans looking for from Ms. Mitchell’s report, and what did she think her job was?

The simple answers are that she gave them what they were looking for, and that is the job she thought they hired her to perform. We can infer the motivations and intentions of both the Senate Republicans and Ms. Mitchell from what her report is, what it did, and what they did with it.

We can infer that what the Republicans were looking for was a report that exonerated Justice Kavanaugh by any means necessary. I can’t say precisely when Ms. Mitchell agreed to perform that task. But that is what her report ultimately did, in my view.

For Ms. Mitchell, her report was “Mission accomplished!”

Ms. Mitchell’s report played an essential role in the Republicans’ comprehensive systematic approach for rejecting victims’ accusations. The Republicans relied heavily on her irrelevant and dishonest report to justify dismissing Ford’s sexual-assault allegation and confirming Kavanaugh.

Despite the prosecutor’s articles demonstrating that her report is BS, the dominant media response was acceptance. Initial reporting on Ms. Mitchell’s report occurred without meaningful commentary. Examples include the Washington Post, Axios, Politico, NBC News, and the Washington Times.

Examples of their headlines are:

Axios: “Read prosecutor Rachel Mitchell’s memo about the Kavanaugh-Ford hearing.”
NBC News: “Evidence doesn’t support claims against Kavanaugh, Judiciary Committee questioner says.”
Washington Times: “Rachel Mitchell: ‘No reasonable prosecutor’ would take on Ford’s case based on evidence.”

Some journalists gave the Republicans exactly what they were looking for from Mitchell’s report

Marc A. Thiessen wrote a highly supportive column in the Washington Post dated October 2, 2018. It was entitled, “Rachel Mitchell expertly eviscerates the case against Kavanaugh.” He approvingly echoed many of Ms. Mitchell’s arguments. So, the Washington Post had neutral, highly complementary, and extremely critical articles on her report.

An extreme example of bizarrely favorable commentary on Ms. Mitchell’s report by a widely followed journalist came from Piers Morgan. In an October 1, 2018 tweet responding to her report, he said:

“A steely-eyed, fact-led, emotion-devoid lawyer cuts through wildly partisan political grandstanding to the cold, hard reality (so far… ) of the case vs Kavanaugh.”

It hardly seems possible that Mr. Morgan could have read Mitchell’s report unless he did so without thinking at all. I view his statement as straight propaganda that belongs with the articles by Rothman, McCormack, Benson, and French previously discussed.

First, the flaws in Mitchell’s report are so apparent that I don’t believe a competent observer could have honestly come to his viewpoint. There is a vast chasm between Mr. Morgan’s characterization and recognizing her report as the joke which it is.

Second, even if one accepted the arguments that Mitchell made without analysis, her report couldn’t possibly be viewed as stating the case against Kavanaugh. Mr. Morgan’s comment shares that dishonest characterization of Mitchell’s report in common with Mr. French’s October 1, 2018 article.

There were more insightful views of Ms. Mitchell’s report expressed on Twitter, but

Measured numerically, I estimate that there were many more highly critical articles and comments on her report than favorable ones. Such critical articles are included in the previously referenced Appendix to this blog post.

But, the weight of the media attention was on agnostic or explicitly favorable articles and commentary. Because agnostic reporting simply repeated statements Ms. Mitchell made, it functioned as favorable commentary on her report.

In contrast, the Americans for Progressive Action Alliance tweeted that “RMs a Trumpist Republican hack.” Another party commented, “Prosecutor’s ‘reprehensible’ memo proves GOP aimed to put accuser Christine Ford on trial — not Brett Kavanaugh.”

Also, in an October 3, 2018 tweet, Monte Hamilton stated (emphasis added):

“From a legal perspective, Rachel Mitchell’s memo was a tawdry sham that tried to paint the GOP’s show trial of Dr. Ford as anything else. It wasn’t due process, it wasn’t fair and balanced, it wasn’t complete, and it wasn’t sound. It was a fraud.”

However, Speaker McConnell cited Ms. Mitchell’s report in the Senate to assert that Dr. Ford is not credible. Similarly, the right-wing media pushed the conclusion of the memo about Dr. Ford’s sexual-assault allegation. So, on balance, the Republicans got exactly what they wanted from her report.

The Democrats response to Mitchell’s report was technically impeccable but didn’t get coverage

Senator Feinstein was the ranking Democrat on the Senate Judiciary Committee. She released a response to Ms. Mitchell’s report on behalf of the Democrats.

The response was everything that Mitchell’s memo was not – honest, thoughtful, thorough, and relevant. Her memo explicitly states that July 1, house-party “matches Dr. Ford’s description of the gathering where she was assaulted.” (Emphasis added)

Politico made the response available to the public. The Washington Examiner published a very brief article on the response. The headline was, “Dianne Feinstein offers ‘reality’ check on Rachel Mitchell’s memo on Christine Blasey Ford.”

The article noted two of the fifteen points made in the response. The first point noted was that a reasonable prosecutor would investigate before deciding whether to charge. The second point was that the relevant question wasn’t Kavanaugh’s guilt but his suitability to be a Supreme Court justice.

While the Democrats’ response was substantively effective, it got virtually no attention in the media. In effect, the reporting in the mainstream media about justice Kavanaugh was ultimately defined by Rachel Mitchell’s report. And there was little offsetting impact from either the critiques by prosecutors of her report or from the thoughtful Democratic response.

Ms. Mitchell’s report is so flawed that no Republican senator or media observer should have missed it

No competent observer could have honestly missed three observations

Every senator and media observer had to know that Dr. Ford was at the July 1, 1982 house-party based on common-sense proof #1 (the two events are the same). Common-sense proof #2 (the probability she was there on July 1, 1982, exceeds 99%) should have been readily apparent to any senator or observer who inexplicably overlooked proof #1.

Overlooking both proofs could only have occurred if a senator or observer gave no thought to the significance of the similarities between the two events. However, every senator and media observer necessarily was aware of the similarities. Thus, they were obligated to give significant thought to the matter.

Also, no senator or media observer should have missed that Justice Kavanaugh omitted Dr. Ford from his July 1, 1982 calendar entry, even though she was provably there. That such omission constitutes an admission of guilt in 1982 should have been apparent.

Finally, Kavanaugh’s blatantly false testimony about Ford’s allegation should have been obvious as an admission of guilt in 2018. The fact-reporting by major media outlets may have unjustifiably characterized his lies as exaggerations or ignored them. But that doesn’t relieve either senators or media observers of responsibility to acknowledge the obvious.

Specifically, no assertion that an observer, like Mr. Morgan, viewed Kavanaugh’s testimony as credible should be accepted as honest. Such assertions are laughable, and they should be treated with the derision they deserve. Moreover, they should be aggressively criticized by the media, not passively accepted.

No competent observer could have believed Mitchell’s report was anything but a joke

Thus, every Republican senator and media observer should have known Ms. Mitchell’s conclusions were wrong (both of them) without needing to examine the balance of her report. Even beyond that, the analysis in her report is obviously flawed on two critical points. So, no senator could reasonably have used it to support his or her decision.

Even an unsophisticated observer who read Ms. Mitchell’s report couldn’t have missed two fatal flaws. First, that her report completely ignores Justice Kavanaugh’s credibility issues should have been unmistakable as a severe flaw.

Second, no competent observer could have missed that her report inexcusably never mentions Kavanaugh’s July 1, 1982 calendars entry. It never addresses the most crucial evidence that corroborates Ford’s account. In contrast, the contemporaneous articles by McCormack, Benson, and French each focuses on trying to debunk the relevance of the July 1 calendar entry.

The Republicans in the Senate, the Trump Administration, and the media consciously revictimized an actual victim of sexual assault

Both the Republicans who hired her and Ms. Mitchell knew they were revictimizing Dr. Ford through their dishonest actions. That was the Senate Republicans’ intention in hiring Ms. Mitchell. They planned to use her cross-examination of Dr. Ford and her report to reject Ford’s sexual-assault allegation, without regard to the merits. That is definitively proved by what they did!

Initially, the Republicans expected the case to be primarily a he-said, she-said controversy. So, they expected to be able to semi-plausibly argue that they believed Kavanaugh is innocent, by pretending he was credible.

But when Kavanaugh’s calendar corroborated virtually all of Ford’s testimony, they continued with their plan with one critical adjustment. The adjustment was that they actively covered up the significance of the July 1, 1982 calendar entry.

The significance of the calendar entry in corroborating Ford’s testimony and establishing Kavanaugh’s guilt is readily evident. So, Republican journalists who claimed either that Kavanaugh is credible, that Ford isn’t credible, or that there is no corroborative evidence had to know those assertions were lies. Thus, they knew they were participating in revictimizing a real sexual-assault victim.

The collective lack of morality is stunning and damning!

Ironically, Ms. Mitchell’s report is compelling evidence of the collective dishonesty underlying the Republicans’ efforts to confirm Justice Kavanaugh. Her report evidences the existence and fraudulent purpose of the Republicans’ comprehensive systematic approach for rejecting sexual-assault allegations.

The Republicans’ collective willingness to reject truthful sexual-assault allegations and to revictimize the victims evidences a pervasive lack of morality. While their lack of morality isn’t unique to this context, the clarity of the targets of their conduct is unique – women, all women!

Joe Biden said in his acceptance speech at the Democratic convention, “My father taught us, silence is complicity.” The nonpartisan press has been and continues to be complicit in supporting the Republican con job through their inaction.

They failed to report honestly on Kavanaugh’s pervasive dishonesty during his testimony regarding Ford’s allegation. Moreover, they made editorial decisions after his confirmation to shut down their reporting about his dishonesty and the Republican coverup.

The complicit media reporting about Dr. Ford’s allegation will be the subject of Blog #12. The Republicans claim to be the victims of biased media reporting concerning Ford’s allegation against Justice Kavanaugh. The reality, however, is that they have been the beneficiaries of complicit reporting by the very media entities they criticize.

Perhaps Rachel Mitchell has unintentionally done some good

Ms. Mitchell’s report contains an arsenal of arguments that are used to undermine the accusations of sexual assault victims. But the vast majority of sexual-assault allegations are undoubtedly truthful.

So, even just using common sense, her arsenal of defenses should not be viewed as probative. A methodology that consistently produces false negatives is meaningless. It should be viewed with a great deal of suspicion by the judicial system since it could be used to discredit most truthful victims.

For example, almost all honest witnesses can be shown to have imperfect memories. So, an accuser’s incomplete memory isn’t material evidence of anything. It’s normal.

Perhaps in an actual court proceeding, instructions are given that would put the irrelevant arguments in Ms. Mitchell’s arsenal into an appropriate context. But no such contextualization is evident in Ms. Mitchell’s report. Perhaps in an actual proceeding, the prosecution’s expert witness might have put the value of Mitchell’s arguments into perspective.

However, Dr. Ford’s allegation and Ms. Mitchell’s defenses provide a concrete demonstration of the irrelevance of Mitchell’s arsenal of arguments. Since Dr. Ford was provably at the July 1, 1982 house-party, this fact-pattern offers a tangible demonstration that Ms. Mitchell’s defenses of Kavanaugh had no probative value. Even worse, they had negative value in getting to the truth.

Looking forward

Blog #10 takes a closer look at the alleged conduct of Justice Kavanaugh and Mr. Judge on July 1, 1982. It also examines the possibility that a broader conspiracy existed among house-party attendees, even before the sexual assault occurred.