Prosecutor’s Memo Is Senators’ New Rorschach Test in Kavanaugh Process

Democrats and Republicans not swayed from original positions by five-page memo

Rachel Mitchell, counsel for Senate Judiciary Committee Republicans, questions Dr. Christine Blasey Ford on Thursday as, from left, Republican Sens. Mike Crapo, Jeff Flake, Ben Sasse, Ted Cruz, Mike Lee, and John Cornyn listen. (Tom Williams/CQ Roll Call/POOL)

The Arizona prosecutor hired by Republicans on the Senate Judiciary Committee to question Supreme Court nominee Brett Kavanaugh and a woman who has accused him of sexually assaulting her when they were in high school issued a memo Sunday concluding that a “reasonable prosecutor” would not bring the woman’s case against Kavanaugh in court.

But Rachel Mitchell, a sex crimes prosecutor for the Maricopa County attorney’s office that includes Phoenix, also pointed out that a Senate confirmation hearing “is not a trial, especially not a prosecution.”

The memo — and those two salient points — did not appear to offer a path toward reconciliation between Democrats and Republicans about whether or not they should vote to confirm Kavanaugh. The two parties are reading it through their own lenses — or, in the case of some Democrats, outright dismissing it.

“Mitchell didn’t interview the alleged perpetrator or the only witness, and she is working for the Senate Republicans,” Sen. Brian Schatz of Hawaii tweeted Sunday after the prosecutor issued her memo. “It doesn’t matter what ‘conclusions’ she draws. The fix is in.”

But Republicans largely agreed Mitchell’s observations backed up their belief that Kavanaugh has been the victim of a smear campaign of false allegations from decades ago that are impossible, at this point, to either prove or refute.

GOP Sens. Orrin G. Hatch of Utah and John Cornyn of Texas, who both sit on the Judiciary panel overseeing Kavanaugh’s confirmation process, retweeted media links to stories about Mitchell’s memo on Sunday.

Mitchell described her legal “bottom line” as follows:

“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.”

Democratic Sen. Sheldon Whitehouse of Rhode Island has said previously that Mitchell’s conclusions would not carry much weight because she did not conduct a full investigation, which should predate any decision about prosecution.

“Obviously, you wouldn’t ordinarily make a declination decision — a decision not to prosecute — before you did the investigation,” Whitehouse tweeted Friday. “And Republicans stopped the investigation. Self-fulfilling prophecy, not credible point,” he wrote.

Senate Majority Leader Mitch McConnell of Kentucky agreed on Friday to delay the vote on Kavanaugh’s confirmation for seven days while the FBI conducts a “supplemental” background investigation into Kavanaugh regarding his alleged sexual misconduct.

Sen. Jeff Flake of Arizona and a Democratic cohort including Sen. Chris Coons of Delaware reached an agreement to delay a planned floor vote on the nomination to allow the FBI, acting under a directive from President Donald Trump, to complete the probe no later than Oct. 5.

Watch: ‘Gentlemen and Women’s Agreement’ on FBI Probe of Kavanaugh

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