Outside Counsels Never Steal the Spotlight From Senators, Except When They Do

The use of lawyers to question witnesses at hearings is reserved for some of the most sensitive hearings

A career prosecutor, Rachel Mitchell, here in October 2004, leads the Special Victims Division of the Maricopa County attorney’s office in Arizona. If past is prologue, she’s about to become a household name. (Saul LOEB/AFP/Pool)
A career prosecutor, Rachel Mitchell, here in October 2004, leads the Special Victims Division of the Maricopa County attorney’s office in Arizona. If past is prologue, she’s about to become a household name. (Saul LOEB/AFP/Pool)
Posted September 27, 2018 at 5:05am

Rachel Mitchell is about to become a household name.

And if past is prologue, the investigative counsel drafted by the majority side of the Senate Judiciary Committee to question Christine Blasey Ford may become a recurring character long after the current Supreme Court debate comes to a close.

Ford, who was the first to come forward with sexual assault allegations against Supreme Court nominee Brett Kavanaugh, faces Republicans and Democrats on the Judiciary Committee starting Thursday morning, if all goes as planned. Mitchell is expected to be given much — if not all — of the five minutes of GOP question time per senator.

Mitchell is a career prosecutor whose day job is as chief of the Special Victims Division of the county attorney’s office in Maricopa County, Arizona, which includes Phoenix.

“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,” Judiciary Chairman Charles E. Grassley said in a statement announcing the hire.

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Using an outside counsel to question witnesses as part of a confirmation hearing, even for the Supreme Court, seems most unusual, but senators have made similar moves in recent decades for some of the most sensitive allegations of the last half century.

Watergate. The Keating Five. Whitewater.

Those are the three most notable examples in recent history where Senate committees have employed counsel to question witnesses as part of Senate hearings. So, while what’s expected to play out Thursday in the Judiciary Committee’s Dirksen Building hearing room is uncommon, it is certainly not unprecedented.

And the lawyers themselves were notable as well.

Fred Thompson, who would himself become a Republican senator from Tennessee and a noted film and television actor, asked questions during the Watergate hearings on behalf of GOP members of the Select Committee on Presidential Campaign Activities.

thompsonattic1/040402 -- Senator Thompson serving as Chief Minority Counsel on the Watergate Committee, 1973-1974, Fred Thompson seated third from left Seated from left: Sen. Lowell Weicker (R-CT), Sen. Edward Gurney, (R-FL), Chief Minority Counsel Fred Thompson, Sen. Howard Baker (R-TN), Sen. Sam Ervin (D-NC).(Chairman), Chief Counsel Samuel Dash, Sen. Herman Talmadge (D-GA), Sen. Daniel Inouye (D-HI), Sen. Joseph Montoya (D-NM).
Fred Thompson, seated third from left, was the chief minority counsel on the Watergate panel, long before he would become a senator from Tennessee. (CQ Roll Call file photo)

Sam Dash, the chief counsel, became almost universally known for his questioning of witnesses after he was appointed to the post by Chairman Sam Ervin, a North Carolina Democrat.

Robert S. Bennett, the Washington attorney who would later represent President Bill Clinton during the scandal involving his improper relationship with Monica Lewinsky, was the outside counsel for the inquiry into the Keating Five scandal led by Democratic Sen. Howell Heflin of Alabama.

And the committee special counsel for the GOP majority during the Senate Banking Committee’s review of the Whitewater land deal in the 1990s? None other than Michael Chertoff, who later became secretary of Homeland Security.

The lead Democratic counsel was another notable face in Washington legal circles, Richard Ben-Veniste, who had made a name for himself decades earlier on the special prosecution task force for Watergate.

Judiciary Democrats on Wednesday again criticized the scheduling of the Thursday hearing, which will feature testimony from Ford and another round of questioning for Kavanaugh. They called for a delay in a new letter to Grassley.

“The Senate Judiciary Committee is not a court of law. Our job is not to determine whether Brett Kavanaugh is guilty of a crime. Our job is to determine whether Brett Kavanaugh has the character and qualifications to be promoted to the most prestigious and powerful court in the country,” wrote the Democrats, led by Sen. Dianne Feinstein of California. “It would be an unprecedented abuse of power and abdication of our constitutional responsibilities to move forward with this nomination given the concerns about Brett Kavanaugh’s character and actions.”

But the majority intends to go forward Thursday, which Grassley attributed in part to a desire not to delay hearing from Ford.

“We’re doing everything since The Washington Post story to accommodate Dr. Ford with the environment she wanted. She doesn’t want it to be a media circus. She wants to be treated respectfully. She wants breaks, everything like that,” the Iowa Republican told reporters. “The committee meeting is going to go ahead because I don’t feel we should disadvantage Dr. Ford anymore than she’s already been disadvantaged in the sense of people wondering if the hearing was going to be last week or this week or whatever else.”

However, Grassley was noncommittal Wednesday when asked whether the committee would be going forward with a vote to report Kavanaugh’s nomination to the floor Friday, or if there might be follow-up hearings with other accusers.

“We’re going to take this step by step and you’ll have to ask me that question Thursday night,” he said.

Patrick Kelley contributed to this report.