Memorandum
TO: All Republican Senators
FROM: Rachel Mitchell, Nominations Investigative Counsel
United States Senate Committee on the Judiciary DATE: September 30, 2018
RE: Analysis of Dr. Christine Blasey Ford’s Allegations
Please permit me this opportunity to present my independent assessment of Dr. Christine Blasey Ford’s allegations against Judge Brett Kavanaugh. Before I do this, I want to emphasize two important points:
TO: All Republican Senators
FROM: Rachel Mitchell, Nominations Investigative Counsel
United States Senate Committee on the Judiciary DATE: September 30, 2018
RE: Analysis of Dr. Christine Blasey Ford’s Allegations
Please permit me this opportunity to present my independent assessment of Dr. Christine Blasey Ford’s allegations against Judge Brett Kavanaugh. Before I do this, I want to emphasize two important points:
- This memorandum contains my own independent assessment of Dr. Ford’s allegations, based upon my independent review of the evidence and my nearly 25 years of experience as a career prosecutor of sex-related and other crimes in Arizona. This memorandum does not necessarily reflect the views of the Chairman, any committee member, or any other senator. No senator reviewed or approved this memorandum before its release, and I 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 words written in this memorandum are mine, and I fully stand by all of them. While I am a registered Republican, I am not a political or partisan person.
- A Senate confirmation hearing is not a trial, especially not a prosecution. The Chairman made the following statement on September 25, 2018, after he hired me:
As I have said, I’m committed to providing a forum to both Dr. Ford and Judge Kavanaugh on Thursday that is safe, comfortable and dignified. The majority members have followed the bipartisan recommendation to hire as staff counsel for the committee an experienced career sex-crimes prosecutor to question the witnesses at Thursday’s hearing. The goal is to de-politicize the process and get to the truth, instead of grandstanding and giving senators an opportunity to launch their presidential campaigns. I’m very appreciative that Rachel Mitchell has stepped forward to serve in this important and serious role. Ms. Mitchell has been recognized in the legal community for her experience and objectivity. I’ve worked to give Dr. Ford an opportunity to share serious allegations with committee members in any format she’d like after learning of the allegations. I promised Dr. Ford that I would do everything in my power to avoid a repeat of the ‘circus’ atmosphere in the hearing room that we saw the week of September 4. I’ve taken this additional step to have questions asked by expert staff counsel to establish the most fair and respectful treatment of the witnesses possible.
That is how I approached my job. 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.
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In the legal context, here is my bottom line: 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. For the reasons discussed below, 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.
Dr. Ford has not offered a consistent account of when the alleged assault happened.• In a July 6 text to the Washington Post, she said it happened in the “mid 1980s.”• In her July 30 letter to Senator Feinstein, she said it happened in the “early 80s.”• Her August 7 statement to the polygrapher said that it happened one “high school
summer in early 80’s,” but she crossed out the word “early” for reasons she did not
explain.• A September 16 Washington Post article reported that Dr. Ford said it happened in the
“summer of 1982.”• Similarly, the September 16 article reported that notes from an individual therapy session
in 2013 show her describing the assault as occurring in her “late teens.” But she told the Post and the Committee that she was 15 when the assault allegedly occurred. She has not turned over her therapy records for the Committee to review.
• While it is common for victims to be uncertain about dates, Dr. Ford failed to explain how she was suddenly able to narrow the timeframe to a particular season and particular year.
Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name.• No name was given in her 2012 marriage therapy notes.• No name was given in her 2013 individual therapy notes.• Dr. Ford’s husband claims to recall that she identified Judge Kavanaugh by name in
2012. At that point, Judge Kavanaugh’s name was widely reported in the press as a
potential Supreme Court nominee if Governor Romney won the presidential election.• In any event, it took Dr. Ford over thirty years to name her assailant. Delayed disclosure
of abuse is common so this is not dispositive.
When speaking with her husband, Dr. Ford changed her description of the incident to become less specific.
Dr. Ford has not offered a consistent account of when the alleged assault happened.• In a July 6 text to the Washington Post, she said it happened in the “mid 1980s.”• In her July 30 letter to Senator Feinstein, she said it happened in the “early 80s.”• Her August 7 statement to the polygrapher said that it happened one “high school
summer in early 80’s,” but she crossed out the word “early” for reasons she did not
explain.• A September 16 Washington Post article reported that Dr. Ford said it happened in the
“summer of 1982.”• Similarly, the September 16 article reported that notes from an individual therapy session
in 2013 show her describing the assault as occurring in her “late teens.” But she told the Post and the Committee that she was 15 when the assault allegedly occurred. She has not turned over her therapy records for the Committee to review.
• While it is common for victims to be uncertain about dates, Dr. Ford failed to explain how she was suddenly able to narrow the timeframe to a particular season and particular year.
Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name.• No name was given in her 2012 marriage therapy notes.• No name was given in her 2013 individual therapy notes.• Dr. Ford’s husband claims to recall that she identified Judge Kavanaugh by name in
2012. At that point, Judge Kavanaugh’s name was widely reported in the press as a
potential Supreme Court nominee if Governor Romney won the presidential election.• In any event, it took Dr. Ford over thirty years to name her assailant. Delayed disclosure
of abuse is common so this is not dispositive.
When speaking with her husband, Dr. Ford changed her description of the incident to become less specific.
- Dr. Ford testified that she told her husband about a “sexual assault” before they were married.
- But she told the Washington Post that she informed her husband that she was the victim of “physical abuse” at the beginning of their marriage.
- She testified that, both times, she was referring to the same incident.
Dr. Ford has no memory of key details of the night in question—details that could help corroborate her account.
• She does not remember who invited her to the party or how she heard about it.
• She does not remember how she got to the party.
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- She does not remember in what house the assault allegedly took place or where that house was located with any specificity.
- Perhaps most importantly, she does not remember how she got from the party back to her house.
Club. The Club is more than 7 miles from her childhood home as the crow flies,
and she testified that it was a roughly 20-minute drive from her childhood home.
o She also agreed for the first time in her testimony that she was driven somewhere
that night, either to the party or from the party or both.o Dr. Ford was able to describe hiding in the bathroom, locking the door, and
subsequently exiting the house. She also described wanting to make sure that she
did not look like she had been attacked.o But she has no memory of who drove her or when. Nor has anyone come forward
to identify him or herself as the driver.o Given that this all took place before cell phones, arranging a ride home would not
have been easy. Indeed, she stated that she ran out of the house after coming downstairs and did not state that she made a phone call from the house before she did, or that she called anyone else thereafter.
• She does, however, remember small, distinct details from the party unrelated to the assault. For example, she testified that she had exactly one beer at the party and was taking no medication at the time of the alleged assault.
Dr. Ford’s account of the alleged assault has not been corroborated by anyone she identified as having attended—including her lifelong friend.
- Dr. Ford has named three people other than Judge Kavanaugh who attended the party— Mark Judge, Patrick “PJ” Smyth, and her lifelong friend Leland Keyser (née Ingham). Dr. Ford testified to the Committee that another boy attended the party, but that she could not remember his name. No others have come forward.
- All three named eyewitnesses have submitted statements to the Committee denying any memory of the party whatsoever. Most relevantly, in her first statement to the Committee, Ms. Keyser stated through counsel that, “[s]imply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.” In a subsequent statement to the Committee through counsel, Ms. Keyser said that “the simple and unchangeable truth is that she is unable to corroborate [Dr. Ford’s allegations] because she has no recollection of the incident in question.”
o Moreover, Dr. Ford testified that her friend Leland, apparently the only other girl at the party, did not follow up with Dr. Ford after the party to ask why she had suddenly disappeared.
Dr. Ford has not offered a consistent account of the alleged assault.
Judge talking to other partygoers downstairs while she was hiding in the bathroom after the alleged assault. But according to her testimony, she could not hear them talking to anyone.
3
o In her letter, she stated, “I locked the door behind me. Both loudly stumbled down the stairwell, at which point other persons at the house were talking with them.”
o She testified that Judge Kavanaugh or Mark Judge turned up the music in the bedroom so that the people downstairs could not hear her scream. She testified that, after the incident, she ran into the bathroom, locked the door, and heard them going downstairs. But she maintained that she could not hear their conversation with others when they got downstairs. Instead, she testified that she “assum[ed]” a conversation took place.
• Her account of who was at the party has been inconsistent.o According to the Washington Post’s account of her therapy notes, there were four
boys in the bedroom in which she was assaulted.o She told the Washington Post that the notes were erroneous because there were
four boys at the party, but only two in the bedroom.o In her letter to Senator Feinstein, she said “me and 4 others” were present at the
party.o In her testimony, she said there were four boys in addition to Leland Keyser and
herself. She could not remember the name of the fourth boy, and no one has come
forward.o Dr. Ford listed Patrick “PJ” Smyth as a “bystander” in her statement to the
polygrapher and in her July 6 text to the Washington Post, although she testified that it was inaccurate to call him a bystander. She did not list Leland Keyser even though they are good friends. Leland Keyser’s presence should have been more memorable than PJ Smyth’s.
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.
o She testified that Judge Kavanaugh or Mark Judge turned up the music in the bedroom so that the people downstairs could not hear her scream. She testified that, after the incident, she ran into the bathroom, locked the door, and heard them going downstairs. But she maintained that she could not hear their conversation with others when they got downstairs. Instead, she testified that she “assum[ed]” a conversation took place.
• Her account of who was at the party has been inconsistent.o According to the Washington Post’s account of her therapy notes, there were four
boys in the bedroom in which she was assaulted.o She told the Washington Post that the notes were erroneous because there were
four boys at the party, but only two in the bedroom.o In her letter to Senator Feinstein, she said “me and 4 others” were present at the
party.o In her testimony, she said there were four boys in addition to Leland Keyser and
herself. She could not remember the name of the fourth boy, and no one has come
forward.o Dr. Ford listed Patrick “PJ” Smyth as a “bystander” in her statement to the
polygrapher and in her July 6 text to the Washington Post, although she testified that it was inaccurate to call him a bystander. She did not list Leland Keyser even though they are good friends. Leland Keyser’s presence should have been more memorable than PJ Smyth’s.
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.
- Dr. Ford struggled to remember her interactions with the Washington Post.o Dr. Ford could not remember if she showed a full or partial set of therapy notes to
the Washington Post reporter. She does not remember whether she showed the Post reporter the
therapist’s notes or her own summary of those notes. The Washington Postarticle said that “portions” of her “therapist’s notes” were “provided by Ford and reviewed by” the Post. But in her testimony, Dr. Ford could not recall whether she summarized the notes for the reporter or showed her the actual records.
o She does not remember if she actually had a copy of the notes when she texted theWashington Post WhatsApp account on July 6.
Dr. Ford said in her first WhatsApp message to the Post that she “ha[d] therapy notes talking about” the incident when she contacted the Post’s tipline. She testified that she had reviewed her therapy notes before contacting the Post to determine whether the mentioned anything about the alleged incident, but could not remember if she had a copy of those notes, as she said in her WhatsApp message, or merely reviewed them in her therapist’s office. - Dr. Ford refused to provide any of her therapy notes to the Committee.4
- Dr. Ford’s explanation of why she disclosed her allegations the way she did raises questions.
o She claimed originally that she wished for her story to remain confidential, but the person operating the tipline at the Washington Post was the first person other than her therapist or husband to whom she disclosed the identity of her alleged attacker. She testified that she had a “sense of urgency to relay the information to the Senate and the president.” She did not contact the Senate, however, because she claims she “did not know how to do that.” She does not explain why she knew how to contact her Congresswoman but not her Senator. - Dr. Ford could not remember if she was being audio- or video-recorded when she took the polygraph. And she could not remember whether the polygraph occurred the same day as her grandmother’s funeral or the day after her grandmother’s funeral.
o It would also have been inappropriate to administer a polygraph to someone who was grieving.
Dr. Ford’s description of the psychological impact of the event raises questions.
disorder (PTSD).o The date of the hearing was delayed because the Committee was informed that
her symptoms prevent her from flying. But she agreed during her testimony that she flies “fairly frequently for [her] hobbies and ... work.” She flies to the mid- Atlantic at least once a year to visit her family. She has flown to Hawaii, French Polynesia, and Costa Rica. She also flew to Washington, D.C. for the hearing.
o Note too that her attorneys refused a private hearing or interview. Dr. Ford testified that she was not “clear” on whether investigators were willing to travel to California to interview her. It therefore is not clear that her attorneys ever communicated Chairman Grassley’s offer to send investigators to meet her in California or wherever she wanted to meet to conduct the interview.
- She alleges that she struggled academically in college, but she has never made any similar claim about her last two years of high school.
- It is significant that she used the word “contributed” when she described the psychological impact of the incident to the Washington Post. Use of the word “contributed” rather than “caused” suggests that other life events may have contributed to her symptoms. And when questioned on that point, said that she could think of “nothing as striking as” the alleged assault.
The activities of congressional Democrats and Dr. Ford’s attorneys likely affected Dr. Ford’s account.
5
Timeline
Date
|
Event
|
Description/Notes
|
Citation
|
July 6
|
Ford speaks with Rep. Eshoo’s staff.
|
Ford called Eshoo’s office and requested a meeting. A staffer spoke with Ford in advance of the meeting.
In her letter to Senator Feinstein, Ford wrote, “On July 6 I notified my local government representative to ask them how to proceed . . . .” |
Hearing testimony; Casey Tolan, Congresswoman Anna Eshoo First To Hear Blasey Ford’s Story: ‘I Told Her I Believed Her,’ Mercury News (Sep. 18, 2018), https:// www.mercurynews.com/2018/09/18/christine-blasey-ford- first-meeting-anna-eshoo-brett-kavanaugh/; Read the Letter Christine Blasey Ford Sent Accusing Brett Kavanaugh of Sexual Misconduct, CNN (Sep. 17, 2018),https://www.cnn.com/2018/09/16/politics/blasey-ford- kavanaugh-letter-feinstein/index.html.
|
Ford texts the
Washington Post tipline using WhatsApp. |
Identifies “Brett Kavanaugh with Mark Judge” as her attacker and says that “PJ” was a “bystander.” She says she “shouldn’t be quiet” about her allegations.
|
Hearing Testimony; Produced documents
| |
July 9
|
Ford speaks with Eshoo’s staff on the phone.
|
Hearing testimony
| |
July 10
|
Ford contacts theWashington Post again.
|
“Been advised to contact senators or NYT. Haven’t heard back from WaPo.”
|
Produced documents
|
At some point between July 10 and September 16
|
Ford speaks with Emma Brown, aWashington Postreporter.
|
Brown was the reporter who ultimately responded to the WhatsApp entries.
|
Hearing testimony
|
July 18
|
Ford meets with Eshoo’s staff.
|
Hearing testimony
| |
July 20
|
Ford speaks with Eshoo.
|
Ford and Eshoo met for “more than an hour and half” in a “conference room.” Eshoo suggested that she write a letter detailing her claims to Senator Feinstein.
|
Hearing testimony; Casey Tolan, Congresswoman Anna Eshoo First To Hear Blasey Ford’s Story: ‘I Told Her I Believed Her,’ Mercury News (Sep. 18, 2018),https://www.mercurynews.com/2018/09/18/christine- blasey-ford-first-meeting-anna-eshoo-brett-kavanaugh/.
|
July 30
|
The letter, dated July 30, is delivered to Senator Feinstein’s D.C. office.
|
“Eshoo said she hasn’t met with the professor since that July afternoon, although her staff has been in contact with her since she came forward.”
|
Hearing testimony; Casey Tolan, Congresswoman Anna Eshoo First To Hear Blasey Ford’s Story: ‘I Told Her I Believed Her,’ Mercury News (Sep. 18, 2018), https:// www.mercurynews.com/2018/09/18/christine-blasey-ford- first-meeting-anna-eshoo-brett-kavanaugh/.
|
July 31
|
Senator Feinstein writes a return letter to Ford.
|
The letter promises not to share Ford’s letter without her explicit consent. Ford did not provide this letter to the Committee.
|
Hearing testimony
|
Between July 30 and August 7
|
Ford speaks by phone with Senator Feinstein.
|
Hearing testimony
| |
Between July 30 and August 7
|
Ford speaks with Senator Feinstein’s staff, who recommends that she engage Debra Katz.
|
Hearing testimony
| |
Between July 30 and August 7
|
Ford engages Debra Katz to represent her with regard to her allegations.
|
Hearing testimony
| |
August 7
|
Ford takes a polygraph test after she engages Katz.
|
Ford took a polygraph test administered by a former FBI agent. Katz provided the results to the Washington Post. They showed that she “was being truthful when she said a statement summarizing her allegations was accurate.”
|
Hearing Testimony; Emma Brown, California Professor, Writer of Confidential Brett Kavanaugh Letter, Speaks Out About Her Allegation of Sexual Assault, Washington Post (Sep. 16, 2018), https://www. washingtonpost.com/investigations/california-professor- writer-of-confidential-brett-kavanaugh-letter-speaks-out- about-her-allegation-of-sexual- assault/2018/09/16/46982194-b846-11e8-94eb- 3bd52dfe917b story.html.
|
August 20
|
Senator Feinstein meets one-on-one with Kavanaugh.
|
Hearing Testimony; Michael Macagnone & Jimmy Hoover, Kavanaugh Meets Top Senate Dem Opposing His Confirmation, Law360 (Aug. 20, 2018),https://www.law360.com/articles/1075169/kavanaugh- meets-top-senate-dem-opposing-his-confirmation.
| |
August 28
|
Senator Feinstein’s staff participates in the first Background Investigation (BI) call.
|
Senator Feinstein’s staff asked Judge Kavanaugh numerous questions about confidential background information.
|
Committee records
|
August 31
|
Senator Feinstein writes Dr. Ford a letter
|
Senator Feinstein promises that “she would not share [Dr. Ford’s July 30] letter without [Dr. Ford’s] explicit consent.”
|
Hearing testimony
|
September 4- 7
|
SJC holds a public hearing on Kavanaugh’s nomination.
|
Committee records
| |
September 6
|
SJC gives Senators an opportunity to question Kavanaugh about sensitive issues at a closed session.
|
Senator Feinstein does not attend closed session.
|
Committee records
|
September 12
|
The Intercept reports that SJC Democrats have requested to view a “Kavanaugh-related document” in the possession of Senator Feinstein.
|
The article reported that a letter in the possession of Senator Feinstein “purportedly describe[d] an incident that was relayed to someone affiliated with Stanford University, who authored the letter and sent it to Rep. Anna Eshoo, a Democrat who represents the area.”
|
Ryan Grim, Dianne Feinstein Withholding Brett Kavanaugh Document From Fellow Judiciary Committee Democrats, Intercept (Sep. 12, 2018), https://theintercept. com/2018/09/12/brett-kavanaugh-confirmation-dianne- feinstein/.
|
September 12
|
Ford’s attorney Debra Katz is seen leaving Capitol Hill shortly after the Intercept story was published.
|
Lissandra Villa and Paul McLeod, Senate Democrats Have Referred a Secret Letter about Brett Kavanaugh to the FBI, BuzzFeed News (Sep. 13, 2018),https://www.buzzfeednews.com/article/lissandravilla/senat e-democrats-have-sent-a-secret-letter-about-brett.
| |
September 13
|
Senator Feinstein refers the letter to the FBI.
|
Burgess Everett & Edward-Isaac Dovere, Feinstein Asks Feds To Investigate Kavanaugh Claims in Letter, Politico (Sep. 30, 2018), https://www.politico.com/story/ 2018/09/13/feinstein-kavanaugh-investigation-letter- 822902.
| |
September 14
|
The New Yorker reports on an interview with Ford but does not identify her by name.
|
The article described the incident in detail.
|
Ronan Farrow & Jane Mayer, A Sexual-Misconduct Allegation Against the Supreme Court Nominee Brett Kavanaugh Stirs Tension Among Democrats in Congress, New Yorker (Sep. 14, 2018), https://www.newyorker.com/ news/news-desk/a-sexual-misconduct-allegation-against- the-supreme-court-nominee-brett-kavanaugh-stirs-tension- among-democrats-in-congress.
|
September 16
|
The Washington Post reports on an interview with Ford.
|
The article described the incident in detail.
|
Emma Brown, California Professor, Writer of Confidential Brett Kavanaugh Letter, Speaks Out About Her Allegation of Sexual Assault, Washington Post (Sep. 16, 2018),https://www.washingtonpost.com/investigations/california- professor-writer-of-confidential-brett-kavanaugh-letter-
|
speaks-out-about-her-allegation-of-sexual- assault/2018/09/16/46982194-b846-11e8-94eb- 3bd52dfe917b story.html.
| |||
September 17
|
SJC has a follow-up BI call with Kavanaugh on the Ford letter. Senator Feinstein does not participate.
|
Senator Feinstein’s staff did not show up.
|
Committee records
|
September 25
|
SJC speaks with Kavanaugh about the allegations against him.
|
Senator Feinstein’s staff declared that they were present “under protest” and did not participate.
|
Committee records
|
September 26
|
SJC speaks with Judge Kavanaugh about the allegations against him.
|
Senator Feinstein’s staff declared that they were present “under protest” and did not participate.
|
Committee records
|
Letter sent by Blasey Ford
- Multiple fonts everywhere
- Kavanaugh's name appears to have been added after the original draft
- the name Kavanaugh is different. In one, the 'a' is right up against the 'K'. In another, the line of the 'u' is taller than the others. In another, the letters are uneven. Maybe it's just the copy but it seems like a computer or typewriter would always be the same spacing, etc.
- Who sends a sloppy letter like that to a U.S. Senator? And she didn't even sign it with her full legal name, just her maiden name." (Note: Christine Ford, 51, is married to Russell Biddel Ford, 58, a senior director at Zosano Pharma (ceuticals), Fremont, CA. Her maiden name is Christine Margaret Blasey.")
- She vacationed in mid Atlantic until August 7th. Airplane Phobia?
- Ford said the polygraph was done in Maryland because of her grandmother’s funeral and
- Ford said the polygraph was done in Maryland because of her grandmother’s funeral and she was asked if it was done on the same day as her grandmother’s funeral. Ford did not know the answer to that question.
- Mitchell also asked if she paid for the polygraph, which would normally be quite expensive, and again, Ford said she doesn’t know. If Ford doesn’t have a clear memory of big events that happened to her LAST MONTH, how can anyone be sure her memory of what happened 36 years ago is correct? Was Kavanaugh involved?
- You wouldn’t think someone could get confused about something like that, but you’d also think someone would know if she spent thousands of dollars paying for a polygraph last month.
Questions about the Polygraph
Rachel Mitchell, a sex crimes prosecutor in Maricopa County, Arizona, who questioned Ford today, went out on what seems to be a strange tangent about the polygraph that Ford took in August.
Surprisingly, it prompted Ford to say a couple of very strange things.
Surprisingly, it prompted Ford to say a couple of very strange things.
John Hawkins noted weird issues with Professor’s Ford’s answers regarding the polygraph test she took,
- including her inability to say for sure when it happened and who paid for it.
- But, by her testimony, she sounded strangely ignorant of polygraphs, how they work, and was unable to say whether she was recorded, be it by video or audio.
- But, she said she was “asked a lot of questions” and described it as taking “much longer than I anticipated." She also said she“told my whole life story.”
- But, the committee was only provided with the results for two specific questions. Those two questions were based on a handwritten statement, and not multiple, specific questions about the incident.
- The statement also included revisions like cross-outs and added words. Did we only get the results for two questions that referenced her sloppy handwritten statement, because answers to questions regarding specific details were exculpatory?https://pjmedia.com/trending/5-big-problems-with-christine-blasey-fords-testimony-at-the-kavanaugh-hearings/
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