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Rachel Mitchell, the Arizona state prosecutor hired by the Republicans on the Senate Judiciary Committee to conduct questioning during the Judge Brett Kavanaugh hearing on Sept. 27, has released a memo analyzing the sexual assault allegations by Dr. Christine Blasey Ford. Mitchell concludes that no “reasonable prosecutor would bring this case based on the evidence before the Committee” and that “this evidence” is not “sufficient to satisfy the preponderance-of-the-evidence standard.” As former federal prosecutors in the Southern District of New York who prosecuted and supervised cases involving human and sex trafficking as well as child exploitation, we find her analysis to be incomplete and deeply flawed.

As an initial matter, many questions exist about Mitchell’s claimed independence, including whether and how much she is being paid, and by whom; what Senate Republicans talked to her about before the hearing; and why she ceased asking questions shortly after Kavanaugh began testifying.

Sep.27.201801:03:00

When senators question a witness at a hearing, their political biases are obvious. The same is true when prosecutors question witnesses in court — their client is “the people.” But in this unprecedented scenario, these biases were far less clear. Indeed, although Mitchell cross-examined Ford on behalf of the Republican members of the Judiciary Committee — quite unsuccessfully in our view — committee chairman Chuck Grassley, R-Iowa, cut off her questioning of Kavanaugh shortly after his testimony began. Notably, this happened right after Mitchell questioned Kavanaugh about the possibly incriminating July 1 entry on his calendar. The end result was that Mitchell did not question Kavanaugh in the same way that she did Ford, nor did the Republicans make any attempt to do it for her. This alone severely undermines her assessment.

Moreover, we are stunned that a career prosecutor like Mitchell would not acknowledge that, at least prior to the hearing, no meaningful, independent investigation had yet been conducted. Nor did she call for such an investigation. We can confidently say that no “reasonable prosecutor” in this country — state or federal — would ever assess the merits of a case without conducting a basic investigation. Such an investigation would always include interviewing any other persons alleged to have been in the room at the time of the incident in question.

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