Rachel Mitchell, the republican hired prosecutor who asked Ford a number of questions during the recent hearing released her findings to the GOP via memo the other day (link to memo). I want to address it and the claims made within it, concluding with my summation of the nature of Mitchell's appraisal. I'm going to go point for point on the big tickets.
1. Mitchel begins by noting that this would not likely be a case raised by a prosecutor of criminal action.
She is right about that, but who thought a nearly 40 year old testimony without corroboration would be the stuff of favored prosecutorial discretion? No one. So why lead with it? Because it's the sort of excuse that many a non-lawyer will rally behind. "Hey, the prosecutor said she wouldn't advance Ford's claim, why should we believe it?" Well, that's what the hearing was for, to judge the veracity of the accuser and to hear the defense of the accused. And even Fox news pundits, in real time, found her testimony compelling.
Mitchell raising the prosecutorial problem reminded me of Mitch McConnell's attempt to mislead (because he actually is a lawyer) people from the floor of the senate by decrying the lack of presumption of innocence in relation to the hearing. Why is that misleading? Because McConnell knows Judge Kavanaugh isn't supposed to have the presumption of innocence. That was established in prosecutorial actions for criminal activity where the state is a moving/challenging party to protect the rights of the weaker party, us.
In a proceeding like this hearing the state is not the accuser or the defendant, but an interested party and objective trier of fact. To apply the presumption to Kavanaugh would be to begin believing that Ford is lying and has to prove otherwise. Both sides blew that one, but to go further would be a bridge too far, even for Washington.
Back to the report.
2. In asserting, correctly, that a prosecutor wouldn't advance it, Mitchell asserts that the testimony of those witnesses named by Ford, "have either refuted her allegations or failed to corroborate them."
This is true in the same way my saying of you, "These people reading have either been paid assassins at one time or have just read me claiming they were at one time paid assassins." That is to say, it's a glass half full of misleading horsefeathers. And upon this non-rock the embolden Mitchell rests a following charge: "This is even weaker than that (a she said/she said)."
No, no it isn't. It is precisely as weak as a he said she said because the only "witness" to the event who has denied it taking place is the charged party. So why try to make the accused look like a bystander whose inclusion allows for denial? Precisely because it allows Mitchell to then assess the case as one even weaker than the case she only just finished telling us she wouldn't prosecute.
Another reason a prosecutor wouldn't advance the case? Not having the ability to cross examine those named as actual witnesses to the incident and surrounding events. A thing the prosecutor should have noted.
3. Mitchell asserts Ford has "struggled" to name Kavanaugh.
That's about as accurate a depiction as was Kavanaugh's relating, "All four witnesses who were allegedly at the event say it didn't happen." That is to say, neither statement accurately reflects the facts. Not having a name written down on notes is not a struggle. Notes from two different years and sessions that address the subject don't have Kavanaugh's name. As though they were meant to have it but Ford couldn't provide it. But that's not really the case. The absence of evidence here is not the evidence of an absence.
The only other comment Mitchell makes ostensibly to shore up her weak claim to a weaker case is that Ford's husband claims to recall his wife giving Kavanaugh's name around the time when Mitchell asserts Kavanaugh's name had come up as a potential nominee under then Governor Romney's potential administration.
So that's interesting. The other witnesses aren't given the "claim" status. Only the corroborating one. And then Mitchell puts the cherry on a bias leaning confection by letting everyone know how long it took for Ford to name Kavanaugh, before sidling away with the additional note that it isn't unusual for a great deal of time to lapse before accusers come forward (see: Catholic sexual abuse scandals).
She could have referred to the husband's recollection as testimony. She could have begun with the lack of unusualness in late claims. Mitchell didn't. She is at the outset of her report establishing a pattern of putting the detractors of Ford's best foot/interest forward.
4. Mitchell then asserts Ford "changed her description of the incident to become less specific."
That's troubling, but not on the part of Ford. It's troubling that Mitchell assigns a motive in her description. It's troubling because in support of this Mitchell only offers that Ford described the incident as a sexual assault prior to their marriage and as physical abuse early in their marriage. She then notes that Ford was using both to describe the same event.
Mitchell understands that Ford was not at that time nor at any time thereafter a lawyer. It is not unusual at all for laymen to refer to incidents of this sort by any number of descriptions which are not mutually exclusive. A sexual assault is physical abuse. And while the former is more accurate, I think anyone should understand that referring to a groping and having your mouth covered would be well described (and perhaps more inclusively described) as physical abuse.
For Mitchell to rest another doubt on that is remarkable to me as a lawyer. She knows better. But then, she isn't representing a body that's doing what it should be up to and that is clear enough by examining this document, shaped to a task, with the aim of presenting as strong a case for denying Ford's claims as can be cobbled from the meager offerings set out.
5. Mitchell is concerned about the nature of Ford's recollection of the nearly 40 year old event, because Ford can't recall any number of particulars that are broader strokes, like how she got home, while remembering a number of small and particular things related, like the fact she had one beer and wasn't on any medication at the time (or, though unmentioned because it wouldn't help her clients, the laughter of the boys as she was assaulted).
Nothing in that is inconsistent with someone who has been the victim of a traumatic event, let alone one from decades earlier.
6. Mitchell notes that no one named as witness has corroborated her recollections.
Well, she already wrote that at the beginning. So why go back to it? You know why. The same reason she tacks on "[not] even her lifelong friend." Though her lifelong friend has said she believes Ford about the event. Why would anyone at the party recall it some 30 plus years later without having been privy to what allegedly transpired in that one bedroom?
Mitchell's work is the difference between a hired gun and someone putting together her best legal understanding. It's the same mentality that transforms a lack of memory of the events in question into submitted testimony, "denying any memory of the party whatsoever." A subtle but important difference, a lawyerly trick. Place denial in as close and frequent proximity to the events as you can. Clever that, but misleading.
7. Mitchell notes a number of inconsistencies in Ford's accounting.
None of them alter the event or the people present. All of them are consistent with someone recalling a distant, traumatic event. What are these inconsistencies? They break into two camps. The first is inconsistency of the alleged assault. That's troubling. What are they?
Not, as it turns out, a they at all. More an it broken into pieces and only tangentially related to the actual assault. "It" was whether or not after she locked herself in the bathroom she could hear Judge or Kavanaugh talking to other people. In one accounting she hears them talking to people downstairs and in another accounting she assumes they were talking to them. I'd assume the latter is more likely, but in any event Mitchell uses this, if broken into pieces to look a bit like more, as the single hook to hang a charge of inconsistency related to the assault itself. Remarkable.
So what's the second half of the inconsistency proffer? It's about a few things. How many were at the party and whether or not she is inclined to characterize one of them as a bystander or something else. And Mitchell thinks Ford should have recalled a closer friend more readily than one of the other's she recalls as being present. That's it. No, really, read the thing. Though she again manages to break the same thing into several parts, that's all she has to found a larger sense of unreliability upon.
8. Mitchell spends a lot of time deciding that because Ford doesn't recall any number of recent, non-traumatic events, as important as whether or not there was a video recording of her polygraph, or whether she showed a full or partial set of therapy notes to a reporter from the Washington post, that it follows there's reason to question her memory.
If that's the gold standard I have more reason to question Mitchell's, since she seemed to forget that she'd already written about no one named as a witness corroborating the testimony of Ford at the outset of her finding before restating it not all that long after.
A curious bullet point in under that consideration is the refusal of Ford to provide the republicans with her therapy notes. Not something that really has anything to do with the heading, which is Mitchell's contention that Ford's memory is suspect. But it's a great way to imply an inconsistency waiting to happen if only, isn't it?
9. Mitchel states that Ford's relating of the psychological impact of the event raises questions.
What questions and why? Well, she notes that Ford has stated she has a number of issues, some of which make travel difficult. Then she notes the delay in proceedings founded on that difficulty before laying in on the "But she traveled frequently for vacation" as if the two preclude one another. As if doing something difficult to achieve a pleasurable end is the same as forcing yourself to do something difficult in order to undergo something worse.
Mitchell then decides to remind everyone that Ford doesn't appear to have been aware they could have and would have come to her, which seems like it should have gone under the memory section as it isn't a question raised by the psychological impact of the incident.
Maybe it goes back to underscoring my problems with Mitchell's apparent insufficiency of memory. Or maybe she's just making sure she squeezes in her employers' talking points. One of those, to be sure.
10. Mitchell asserts that the democrats and Ford's attorney's "likely affected Ford's account." Which is a pretty significant charge if it goes to the substantial. The implications are entirely accusatory. She then provides a calendar of events with no commentary to support or sum the why and particulars of the charge.
On the whole this couldn't have been a better example of willfully biased examination of partial facts. I'd sum them but I think I've made a fairly large dent going item by item. I'll stop there for now.
1. Mitchel begins by noting that this would not likely be a case raised by a prosecutor of criminal action.
She is right about that, but who thought a nearly 40 year old testimony without corroboration would be the stuff of favored prosecutorial discretion? No one. So why lead with it? Because it's the sort of excuse that many a non-lawyer will rally behind. "Hey, the prosecutor said she wouldn't advance Ford's claim, why should we believe it?" Well, that's what the hearing was for, to judge the veracity of the accuser and to hear the defense of the accused. And even Fox news pundits, in real time, found her testimony compelling.
Mitchell raising the prosecutorial problem reminded me of Mitch McConnell's attempt to mislead (because he actually is a lawyer) people from the floor of the senate by decrying the lack of presumption of innocence in relation to the hearing. Why is that misleading? Because McConnell knows Judge Kavanaugh isn't supposed to have the presumption of innocence. That was established in prosecutorial actions for criminal activity where the state is a moving/challenging party to protect the rights of the weaker party, us.
In a proceeding like this hearing the state is not the accuser or the defendant, but an interested party and objective trier of fact. To apply the presumption to Kavanaugh would be to begin believing that Ford is lying and has to prove otherwise. Both sides blew that one, but to go further would be a bridge too far, even for Washington.
Back to the report.
2. In asserting, correctly, that a prosecutor wouldn't advance it, Mitchell asserts that the testimony of those witnesses named by Ford, "have either refuted her allegations or failed to corroborate them."
This is true in the same way my saying of you, "These people reading have either been paid assassins at one time or have just read me claiming they were at one time paid assassins." That is to say, it's a glass half full of misleading horsefeathers. And upon this non-rock the embolden Mitchell rests a following charge: "This is even weaker than that (a she said/she said)."
No, no it isn't. It is precisely as weak as a he said she said because the only "witness" to the event who has denied it taking place is the charged party. So why try to make the accused look like a bystander whose inclusion allows for denial? Precisely because it allows Mitchell to then assess the case as one even weaker than the case she only just finished telling us she wouldn't prosecute.
Another reason a prosecutor wouldn't advance the case? Not having the ability to cross examine those named as actual witnesses to the incident and surrounding events. A thing the prosecutor should have noted.
3. Mitchell asserts Ford has "struggled" to name Kavanaugh.
That's about as accurate a depiction as was Kavanaugh's relating, "All four witnesses who were allegedly at the event say it didn't happen." That is to say, neither statement accurately reflects the facts. Not having a name written down on notes is not a struggle. Notes from two different years and sessions that address the subject don't have Kavanaugh's name. As though they were meant to have it but Ford couldn't provide it. But that's not really the case. The absence of evidence here is not the evidence of an absence.
The only other comment Mitchell makes ostensibly to shore up her weak claim to a weaker case is that Ford's husband claims to recall his wife giving Kavanaugh's name around the time when Mitchell asserts Kavanaugh's name had come up as a potential nominee under then Governor Romney's potential administration.
So that's interesting. The other witnesses aren't given the "claim" status. Only the corroborating one. And then Mitchell puts the cherry on a bias leaning confection by letting everyone know how long it took for Ford to name Kavanaugh, before sidling away with the additional note that it isn't unusual for a great deal of time to lapse before accusers come forward (see: Catholic sexual abuse scandals).
She could have referred to the husband's recollection as testimony. She could have begun with the lack of unusualness in late claims. Mitchell didn't. She is at the outset of her report establishing a pattern of putting the detractors of Ford's best foot/interest forward.
4. Mitchell then asserts Ford "changed her description of the incident to become less specific."
That's troubling, but not on the part of Ford. It's troubling that Mitchell assigns a motive in her description. It's troubling because in support of this Mitchell only offers that Ford described the incident as a sexual assault prior to their marriage and as physical abuse early in their marriage. She then notes that Ford was using both to describe the same event.
Mitchell understands that Ford was not at that time nor at any time thereafter a lawyer. It is not unusual at all for laymen to refer to incidents of this sort by any number of descriptions which are not mutually exclusive. A sexual assault is physical abuse. And while the former is more accurate, I think anyone should understand that referring to a groping and having your mouth covered would be well described (and perhaps more inclusively described) as physical abuse.
For Mitchell to rest another doubt on that is remarkable to me as a lawyer. She knows better. But then, she isn't representing a body that's doing what it should be up to and that is clear enough by examining this document, shaped to a task, with the aim of presenting as strong a case for denying Ford's claims as can be cobbled from the meager offerings set out.
5. Mitchell is concerned about the nature of Ford's recollection of the nearly 40 year old event, because Ford can't recall any number of particulars that are broader strokes, like how she got home, while remembering a number of small and particular things related, like the fact she had one beer and wasn't on any medication at the time (or, though unmentioned because it wouldn't help her clients, the laughter of the boys as she was assaulted).
Nothing in that is inconsistent with someone who has been the victim of a traumatic event, let alone one from decades earlier.
6. Mitchell notes that no one named as witness has corroborated her recollections.
Well, she already wrote that at the beginning. So why go back to it? You know why. The same reason she tacks on "[not] even her lifelong friend." Though her lifelong friend has said she believes Ford about the event. Why would anyone at the party recall it some 30 plus years later without having been privy to what allegedly transpired in that one bedroom?
Mitchell's work is the difference between a hired gun and someone putting together her best legal understanding. It's the same mentality that transforms a lack of memory of the events in question into submitted testimony, "denying any memory of the party whatsoever." A subtle but important difference, a lawyerly trick. Place denial in as close and frequent proximity to the events as you can. Clever that, but misleading.
7. Mitchell notes a number of inconsistencies in Ford's accounting.
None of them alter the event or the people present. All of them are consistent with someone recalling a distant, traumatic event. What are these inconsistencies? They break into two camps. The first is inconsistency of the alleged assault. That's troubling. What are they?
Not, as it turns out, a they at all. More an it broken into pieces and only tangentially related to the actual assault. "It" was whether or not after she locked herself in the bathroom she could hear Judge or Kavanaugh talking to other people. In one accounting she hears them talking to people downstairs and in another accounting she assumes they were talking to them. I'd assume the latter is more likely, but in any event Mitchell uses this, if broken into pieces to look a bit like more, as the single hook to hang a charge of inconsistency related to the assault itself. Remarkable.
So what's the second half of the inconsistency proffer? It's about a few things. How many were at the party and whether or not she is inclined to characterize one of them as a bystander or something else. And Mitchell thinks Ford should have recalled a closer friend more readily than one of the other's she recalls as being present. That's it. No, really, read the thing. Though she again manages to break the same thing into several parts, that's all she has to found a larger sense of unreliability upon.
8. Mitchell spends a lot of time deciding that because Ford doesn't recall any number of recent, non-traumatic events, as important as whether or not there was a video recording of her polygraph, or whether she showed a full or partial set of therapy notes to a reporter from the Washington post, that it follows there's reason to question her memory.
If that's the gold standard I have more reason to question Mitchell's, since she seemed to forget that she'd already written about no one named as a witness corroborating the testimony of Ford at the outset of her finding before restating it not all that long after.
A curious bullet point in under that consideration is the refusal of Ford to provide the republicans with her therapy notes. Not something that really has anything to do with the heading, which is Mitchell's contention that Ford's memory is suspect. But it's a great way to imply an inconsistency waiting to happen if only, isn't it?
9. Mitchel states that Ford's relating of the psychological impact of the event raises questions.
What questions and why? Well, she notes that Ford has stated she has a number of issues, some of which make travel difficult. Then she notes the delay in proceedings founded on that difficulty before laying in on the "But she traveled frequently for vacation" as if the two preclude one another. As if doing something difficult to achieve a pleasurable end is the same as forcing yourself to do something difficult in order to undergo something worse.
Mitchell then decides to remind everyone that Ford doesn't appear to have been aware they could have and would have come to her, which seems like it should have gone under the memory section as it isn't a question raised by the psychological impact of the incident.
Maybe it goes back to underscoring my problems with Mitchell's apparent insufficiency of memory. Or maybe she's just making sure she squeezes in her employers' talking points. One of those, to be sure.
10. Mitchell asserts that the democrats and Ford's attorney's "likely affected Ford's account." Which is a pretty significant charge if it goes to the substantial. The implications are entirely accusatory. She then provides a calendar of events with no commentary to support or sum the why and particulars of the charge.
On the whole this couldn't have been a better example of willfully biased examination of partial facts. I'd sum them but I think I've made a fairly large dent going item by item. I'll stop there for now.
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