Nothing recedes like success, and Christine Blasey Ford’s accusations that Brett Kavanaugh was a serial sexual monster when they were teenagers, taken by Democrats as a Gospel account a week ago, have begun to fray at the edges.
Rachel Mitchell, the Arizona prosecutor brought in by the Republicans of the Senate Judiciary Committee to question both Mrs. Ford and Mr. Kavanaugh, has concluded in a 5-page memorandum prepared for the Judiciary Committee that criminal charges against the judge could never be proved and no reasonable prosecutor would attempt to do it.
Mrs. Ford’s case against Mr. Kavanaugh is “even weaker” than a “he said, she said” case, Mrs. Mitchell wrote to the committee. The memorandum was released Sunday but the dominant media has not given it the attention it deserves. Every burp, hiccup and sneeze of the accusation has been treated as the blockbuster of every news cycle. The facts, however, are stubborn and not easily aborted.
“A ‘he said, she said’ case is incredibly hard to prove,” Prosecutor Mitchell told the committee, “but this case is even weaker than that. [Christine] Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. For the reasons [outlined in this memorandum] I do not think that a reasonable prosecutor would bring this case based on the evidence before the committee. Nor do I believe this evidence is sufficient to satisfy the preponderance of the evidence standard.”
The Democrats on the committee may be disappointed but they cannot be surprised. They have seen this coming since the FBI started its seventh background check of Mr. Kavanaugh’s truthfulness and character. The Democrats are at work now figuring out what to say next, perhaps a disclosure that Brett Kavanaugh was a cannibal in middle school, selling sweet and subtly smoky “somethingburgers” in the shadow of the school lunchroom.
Prosecutor Mitchell set out nine problems with the way that Christine Ford described an encounter with Mr. Kavanaugh 36 years ago, when a proceeding growing out of that encounter would have been adjudicated in Juvenile Court.
Mrs. Ford, for one, has not offered a consistent account of what she says happened to her on a summer night in 1982 when she was 15 years old. Or it might have been in 1983. Or perhaps sometime in her “late teens,” as she told The Washington Post. She declined to allow the Judiciary Committee to see her therapy notes, which might answer some of the questions troubling Prosecutor Mitchell.
Mrs. Ford struggled to identify Mr. Kavanaugh by name as the man in the assault incident she described in the therapy sessions, though her husband recalls that it was Mr. Kavanaugh, a name prominently in the news at the time. Prosecutor Mitchell notes that the newspapers were full of accounts that Mitt Romney, a candidate for president, was saying that Brett Kavanaugh might be his man. The husband could have been fishing for a name.
Mrs. Ford further testified that she told her husband about a “sexual assault” before they were married; she told The Washington Post that she “informed” her husband that she was the victim of “physical abuse” at the beginning their marriage.
Though she does not remember from the distance of four decades when or where Mr. Kavanaugh abused her, or how she got there or got home, Prosecutor Mitchell writes that Mrs. Ford recalls that she drank “exactly one beer” and was taking no medication at the time. Some details remembered. Some not.
Neither does she remember whether she took a polygraph test in July on the day before or the day after her grandmother’s funeral, or whether the polygraph was audio-recorded or video-recorded. Prosecutor Mitchell observes that it would have been inappropriate to administer such a test to someone deep in grief.
Prosecutor Mitchell says Christine Ford’s description of the psychological damage of the incident 36 years ago raises several questions. Mrs. Ford said she suffers from anxiety, claustrophobia and post-traumatic stress syndrome, all leading to a fear of flying.
Yet she testified that she flies “fairly frequently for [her] hobbies and work.” She flies from California to the mid-Atlantic states every year to visit family, and to Hawaii, French Polynesia and Costa Rica, and flew to Washington to give testimony. She declined a committee suggestion that an investigator fly to California to hear her story.
It’s reasonable to assume that “something” happened 36 years ago, but it is not reasonable to assume Brett Kavanaugh was there when it did. The Democrats are taking advantage of a troubled woman and her conflicted memories, telling a story remarkable for all the holes in it. It’s reasonable to ask of Chuck Schumer, Dianne Feinstein and the other Democrats the question asked of Joseph McCarthy many years ago: “Have you no decency?”
• Wesley Pruden is editor in chief emeritus of The Times.
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