text:
Complainant is Pick Enterprises, Inc. of Yarmouth, Maine, United States of America (the “United States”), represented by the law firm Bernstein Shur, United States.
Respondent is Domains by Proxy, LLC, DomainsByProxy.com of Scottsdale, Arizona, United States / Woman to Woman Healthcare of Norton, Massachusetts, United States / Just Us Women Health Center f/k/a Woman to Woman Health Center of North Attleboro, Massachusetts, United States, internally represented.
The disputed domain name <womantowomanhealthcenter.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 1, 2012. On August 1, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 3, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on August 6, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on August 7, 2012.
The Center verified that the amended Complaint1 satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 8, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 28, 2012. The Response was filed with the Center on August 23, 2012.
The Center appointed Richard G. Lyon as the sole panelist in this matter on September 18, 2012. The Panel finds that it was properly constituted and has jurisdiction to decide this administrative proceeding. The Panel has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant provides health care services to women under the name “Women to Women”. It appears from Complainant’s principal website (though not from the Complaint) that its business involves a wellness program undertaken by its customers, women located throughout the United States, from their homes, using a program devised and tested by Complainant and assisted by personal contact when appropriate. Complainant holds six trademarks registered on the Principal Register of the United States Patent and Trademark Office (USPTO) that include as their dominant feature WOMEN TO WOMEN: one registered in 1997, one in 2001, one in May 2009, two in February 2010, and one in September 2010. The earliest of these has a first use in commerce of 1984. Complainant operates a clinic in Yarmouth, Maine, United States.
Respondent operates a clinic in North Attleboro, Massachusetts, United States, offering certain specified medical services to women. Respondent was founded in 2011 under the name “Woman to Woman Health Center” by two female nurse practitioners who have been duly certified by the Commonwealth of Massachusetts as Women’s Healthcare Nurse Practitioners.
In late 2011 Complainant’s counsel sent Respondent a demand letter, asserting Complainant’s “superior rights” in WOMEN TO WOMEN and notifying Respondent that Complainant intended to contact Respondent about its intellectual property. Following correspondence between counsel for the parties, Respondent agreed to change its business name to Just Us Women Health Center, which Respondent proceeded to do. Other aspects of the settlement discussions are discussed in Section 6-B below. Both parties agree that during their discussions Complainant requested transfer to it of the disputed domain name and that Respondent refused to do so.
When the Panel accessed the disputed domain name he was automatically redirected to <justuswomenhc.com> and viewed a page describing Respondent’s clinic and its services.
As the Panel resolves this case based only upon the Complaint, only Complainant’s contentions are set out in this Decision. Certain factual matters and evidence provided in the Response are noted in Section 6-B.
1. Complainant holds incontestable rights in WOMEN TO WOMEN by reason of its USPTO-registered trademarks. The disputed domain name is confusingly similar to these marks, incorporating as its dominant feature the singular form of the marks.
2. Respondent is not now known as WOMAN TO WOMAN and, because of Complainant’s earlier trademarks, had no right to be known by that name prior to its name change. “Accordingly, it appears that Respondents are intentionally attempting to attract internet users to its site by creating a likelihood of confusion with the Complainant’s trademark as to affiliation and source”.
“As discussed in VI.B. above, Respondents had both constructive and actual knowledge of the Complainant and its trademark rights, and it selected a confusingly similar, nearly identical domain name to market its directly competitive services. These activities demonstrate Respondents’ bad faith in registering and using the womantowomanhealthcenter.com domain.
In this proceeding the Panel looks no further than the Complaint to determine that Complainant has not proven that Respondent registered the disputed domain name in bad faith.
Complainant provides no evidence of any kind that Respondent knew of Complainant or its mark when Respondent registered the disputed domain name in October 2010. The only basis cited in the Complaint besides the legal notion of constructive notice is a reference to Complainant’s demand letter in December 2011, fourteen months after registration of the disputed domain name. While Complainant (as complainants in these cases are wont to do) duly pleads that its mark is “well-known”, it provides no evidence to back up its conclusionary assertion of Respondent’s actual knowledge. In fact Complainant’s mark consists of an everyday phrase that has obvious descriptive qualities – a relatively weak mark for purposes of establishing Respondent’s knowledge of it prior to registration of the disputed domain name.
The Complaint fails for lack of evidence under paragraph 4(a)(iii).
B. Reverse Domain Name Hijacking.
Panel’s Initiative in Considering Reverse Domain Name Hijacking. On his own initiative the Panel considers whether Complainant has engaged in Reverse Domain Name Hijacking (RDNH). This Panel firmly believes a UDRP panel may make this inquiry in an appropriate case even if not so requested by the respondent, and indeed should do so fully to discharge its obligations under the Rules, see Goway Travel Limited v. Tourism Australia, WIPO Case No. D2006-0344 (citation omitted) (“The Rules specifically put the burden on the Panel to determine whether a complainant has tried to use ‘the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name.’“), and to preserve the integrity of the UDRP process, see Credit Europe Bank N. V. v. Peter Yu, WIPO Case No. D2010-0737 (concurring opinion); Bittorrent Marketing GmbH v. Adlntensity Ltd, Adam Smith, WIPO Case No. D2007-1033 (opinion dissenting from denial of RDNH).
Factual Background. To understand the Panel’s discussion of RDNH it is necessary to furnish the pertinent details of the parties’ discussions regarding Respondent’s change of business name. The following is taken from the Response and annexes submitted with the Response, all consisting of email or written communications between counsel for the parties.4 Neither party submitted an agreed settlement agreement and the correspondence indicates that the parties had not yet agreed all terms of a settlement.
RDNH Standard. “Paragraph 15(e) of the UDRP Rules provides that, if ‘after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding’. Reverse Domain Name Hijacking is defined under the UDRP Rules as ‘using the UDRP in bad faith to attempt to deprive a registered domain-name holder of a domain name’. . . WIPO panels have found Reverse Domain Name Hijacking in circumstances including where: the complainant in fact knew or clearly should have known at the time that it filed the complaint that it could not prove one of the essential elements required by the UDRP.” WIPO Overview 2.0, paragraph 4.17.
Ordinarily if the face of the complaint itself demonstrates a settled reason why the complaint must be denied, a panel may make a finding of RDNH. See, for example, Mile, Inc. v. Michael Burg, WIPO Case No. D2010-2011; Liquid Nutrition Inc. v. liquidnutrition.com/Vertical Axis Inc., WIPO Case No. D2007-1598. However a finding of RDNH is always within the Panel’s discretion, see Rudy Rojas v. Gary Davis, WIPO Case No. D2004-1081 (facts justified RDNH but panel determined “to leave the parties as it found them”).
Application to this Case. In his concurring opinion in Credit Europe, cited above, this Panel stated: ““[t]he Policy has been in force for more than a decade and the thousands of cases decided under it now constitute a workable body of (to use a legal term) precedent. In my opinion any complainant, and even more so any professional representative of a complainant, should be at least minimally versed in the Policy, the Rules, their scope, and their limits. It is no excuse that a party or its representative is unfamiliar with clear Policy precedent, much less the clear language of the Policy and the Rules themselves.” In this case Complainant or its representative has simply ignored three longstanding Policy precedents, two of which are recorded as Consensus Views in the WIPO Overview 2.0 and the other of which in this Panel’s opinion approaches that status.
While “Panels have mostly declined to introduce the US concept of constructive (deemed) notice per se into the UDRP” (Id., paragraph 3.4) is not designated a Consensus View it is at the very least a default rule, variation from which requires explication, supported by evidence, from one who pleads it. Notwithstanding its certification in the Complaint, required by paragraph 3(b)(xiv) of the Rules, that “that the assertions in this Complaint are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument,” Complainant offers the Panel no reason why in this proceeding the Panel should depart from or modify Policy precedent.
Maine has a similar provision, see Rule 11(a) of The Maine Rules of Civil Procedure. In this Panel’s opinion in a Policy proceeding paragraph 3(b)(xiv) of the Rules demands no less of an undertaking and no less pre-filing diligence. Honoring any of these undertakings requires at a minimum “an inquiry reasonable in the circumstances” which, as I have stated, includes being or becoming “at least minimally versed” in the relevant precedent and procedure. Complainant’s representative has not met that minimal standard in this case.
The settlement discussions bear on RDNH for two reasons. First, the attorney who signed the Complaint was the same person who was representing Complainant in the discussions, and so was fully aware of the factual background that preceded the filing of the Complaint. There is nothing in the Response that Complainant’s representative was not aware of before making his Rules paragraph 3(b)(xiv) certification; there can be no excuse based upon information solely within the control of Respondent.6 Second, given the circumstances of this case, especially the dearth of evidence supporting the Complaint, it is difficult to avoid an inference that the Complaint was filed at least in part not to obtain the disputed domain name but rather to increase negotiating leverage in the settlement discussions, “a highly improper purpose.” Wall-Street.com, LLC v. Marcus Kocak / Internet Opportunity Entertainment (Sports) Limited, Sportingbet PLC, WIPO Case No. D2012-1193.
These circumstances justify a finding of RDNH in this case, which the Panel accordingly makes.
1 The amended Complaint substituted the name of the domain name holder in place of the proxy service used by Respondent. All references in this Decision to the “Complaint” are to the amended Complaint.
2 While Respondent’s clinic is less than 200 miles from Complainant’s, Complainant does not provide evidence to support direct competition between the two clinics.
3 Respondent asserts that it selected its business name in part because “Woman to Woman” was available both as a business name in the Commonwealth of Massachusetts and as a “.com” domain name.
4 Complainant submitted only its December 12, 2011 demand letter.
5 Registration and use in bad faith must be separately proven (WIPO Overview 2.0, paragraph 3.1, Consensus View).
6 Compare Wall-Street.com, LLC v. Marcus Kocak / Internet Opportunity Entertainment (Sports) Limited, Sportingbet PLC, WIPO Case No. D2012-1193, cited later in the text above, in which the complainant only learned of certain matters from the response.

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The Kansas court denied a motion to dismiss a Medicaid case challenging the denial of eligibility for a nursing home resident due to her husband’s annuity being counted as a resource, instead of income. The court held that two of the three relevant Medicaid provisions could be enforced under 42 U.S.C. § 1983.
The court concluded that sovereign immunity barred a declaration that the past denial of Medicaid was in error but did not bar injunctive relief against state officials, including injunctive relief requiring payment of past benefits. The court postponed a decision on the preemption claim, stating that there was inadequate briefing. Bernard v. Kansas Health Policy Authority, 2011 WL 786145 (D. Kan. Feb. 28, 2011). The judge was appointed by President Clinton.
Tanis Bernard resides in a nursing home. Her husband, Otis, purchased an annuity with over $600,000, and sought Medicaid eligibility for Tanis. The agency denied eligibility, treating the annuity as an available resource.
The court dismissed the claims against the state agency as barred by the Eleventh Amendment. But the court noted that under Ex parte Young, prospective claims against state officials were not barred by sovereign immunity. The court then examined whether the relief sought was prospective or retrospective. The court concluded that plaintiff’s claim for declaratory relief was barred, because it sought a judgment declaring that state officials violated federal law in the past. However, injunctive relief was not barred, because it would require that state officials conform their actions to federal law in the future.
The court then evaluated whether the three statutory provisions upon which the plaintiff relied could be enforced under § 1983. First, the court looked at 42 U.S.C. § 1396p(c)(1)(A), which is phrased in terms of requirements for a state plan. Citing Suter v. Artist M., 503 U.S. 347 (1992), the court held that the provision had an aggregate focus and did not meet the standards for a § 1983 claim under Gonzaga v. Doe, 536 U.S. 273 (2002). The court did not cite the Suter fix statute, 42 U.S.C. §§ 1320a-2, 1320a-10, and perhaps was unaware of it.
Nevertheless, the court held that a claim under § 1983 was permissible for the other two statutory provisions upon which plaintiff relied, 42 U.S.C. § 1396p(c)(2)(B)(i) and 42 U.S.C. § 1396p(d)(2)(B). Neither of those provisions referenced the state plan, and the court concluded that the text made it “clear that Congress intended to confer individual rights on certain individuals.” The court further held that the administrative hearing provided by the Medicaid statute did not constitute a preclusive comprehensive remedial scheme.


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Q: What was Holmes’ dissent on Lochner v. New York (1905) case?
Dissent (Holmes): refused to indulge any assessment of legislative goals or means. Holmes believed this Lochner-type substantive due process review allowed courts the opportunity to second-guess legislative judgments. The court substitutes its own social and economic theories.
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UNIROYAL GOODRICH TIRE COMPANY, Appellee.
David T. Greis, Kansas City, MO (William H. Pickett, on the brief), for appellants.
Michael W. Rhodes, Kansas City, MO (Peter F. Daniel, Alok Ahuja, on the brief), for appellee.
Before WOLLMAN, ROSS and HANSEN, Circuit Judges.
On August 15, 1989, Valerie Sawdon and her minor son, Jesse Durmon, were passengers in a car driven by Sawdon's mother, Yvonne Kirby, when a Uniroyal tire blew out. The car left the road and overturned, with Jesse dying as a result of the accident. Sawdon brought a wrongful death action against the Uniroyal Goodrich Tire Company (Uniroyal), alleging strict liability. The jury returned a verdict in Uniroyal's favor, determining that the tire was not defective at the time of manufacture. See Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277 (8th Cir.) (Sawdon I ), cert. denied, --- U.S. ----, 116 S.Ct. 84, 133 L.Ed.2d 42 (1995).
Sawdon and Kirby filed a motion to amend their complaint in Sawdon I to allege claims for their personal injuries resulting from the accident, which the district court1 denied. As a result, Sawdon and Kirby filed the present suit (Sawdon II ) in Missouri state court, which Uniroyal removed to the district court.
The plaintiffs' complaint contained six counts. Sawdon's claims were in counts one, two, and five. Count one alleged that Sawdon sustained personal injuries as a result of Uniroyal's negligence in designing and manufacturing the tire; count two alleged that Uniroyal was strictly liable for the tire's failure. Count five claimed negligent infliction of emotional distress, alleging that as a result of Uniroyal's negligence Sawdon suffered severe emotional distress from her awareness of Jesse's terror during the accident and from his resulting death. Counts three and four contained Kirby's negligence and strict liability claims that corresponded with Sawdon's claims, and count six contained Kirby's negligent infliction of emotional distress claim.
The district court dismissed counts five and six, concluding that those counts failed to state a claim because Missouri's wrongful death statute does not allow recovery of damages for grief and bereavement. See Mo.Rev.Stat. § 537.090. The court granted Uniroyal summary judgment on counts one and two, concluding that the jury in Sawdon I determined that the tire was not defective and that issue preclusion prevented Sawdon from relitigating the defectiveness of the tire. Kirby voluntarily dismissed counts three and four with prejudice and does not appeal any issues related to those counts.
Sawdon and Kirby first argue that the district court's dismissal of counts five and six was incorrect because their claims for the negligent infliction of emotional distress were personal injuries separate from any wrongful death claim. Rather than discuss an issue of Missouri law that the Missouri courts have not addressed,2 we dispose of Sawdon's and Kirby's claims on a simpler ground. See Dicken v. Ashcroft, 972 F.2d 231, 233 (8th Cir.1992) (court of appeals may affirm district court on any basis supported by the record). In filings with the district court and at oral argument before this court, plaintiffs conceded that they had no evidence that Uniroyal was negligent and that they were proceeding only on a strict liability theory. Consequently, plaintiffs have abandoned all negligence-based counts--counts one, five, and six.
Sawdon argues that the district court erroneously concluded that issue preclusion supported the grant of summary judgment on count two. The only element of issue preclusion seriously contested by the parties is whether Sawdon was a party to Sawdon I. See Oates v. Safeco Ins. Co., 583 S.W.2d 713, 719 (Mo.1979) (en banc) (discussing four elements of collateral estoppel). Sawdon argues that in Sawdon I she sued in the capacity of personal representative of Jesse's estate or as a representative of the class of beneficiaries under the wrongful death statute, both of which she claims are different legal identities from her individual capacity in this suit.
This argument is without merit for several reasons. First, the Missouri Supreme Court has clearly stated that a wrongful death claim does not belong to the deceased and does not vest in the estate's personal representative, but rather is a right of action that vests in the survivors at the moment of death. See Sullivan v. Carlisle, 851 S.W.2d 510, 515 (Mo.1993) (en banc). Second, Sawdon did not represent any class in Sawdon I, but rather sued as the only person authorized by the Missouri wrongful death statute to be a plaintiff in the wrongful death action. See Mo.Rev.Stat. § 537.080.1(1). Furthermore, Sawdon has cited us to no authority stating that her status as a plaintiff in Sawdon I gave her a legal identity distinct from her identity in Sawdon II. Assuming, arguendo, that Sawdon's identities differed, Sawdon is in privity with herself because recovery in both suits depended upon her ability to prove that Uniroyal's tire was defective. See, e.g., Moore v. Swayne-Hunter Farms, Inc., 841 S.W.2d 308, 315 (Mo.Ct.App.1992) (definition of privity); cf. Johnston v. Allis-Chalmers Corp., 736 S.W.2d 544, 549 (Mo.Ct.App.1987) (where jury decided that product was not defective as to husband's injury claim and wife's consortium claim, wife shared common interest in outcome of suit and could not relitigate defectiveness for personal injury claim); Chamberlain v. Mo.-Ark. Coach Lines, Inc., 354 Mo. 461, 189 S.W.2d 538, 540 (1945) (fact issues litigated in action for wife's wrongful death could not be relitigated in husband's personal injury action).
We conclude that Sawdon's constitutional arguments are without merit.


One might have thought that epithet was a clever strategy to ingratiate a stranger at the party to the anointed one’s retinue, pending the results of the FBI investigation. Polls even responded to it.
But “clever” would be wrong. When those long-anticipated FBI results were finally announced on the eve of the July Conventions, the new Bernie Sanders was so distracted doing his “awkward dance” to the tune of that damn Platform that one might even think he was totally unaware of the loss of his last best chance to win the Democratic nomination. It had been snatched from him in broad daylight by an FBI fix, that was signaled a weak earlier by discovery of a Phoenix tarmac meet-up. Sanders did not object.
It has been written that, to Clinton, politics is war. Sanders had already been taken prisoner when he started chattering about the Party platform. Republicans appeared far more disturbed than Sanders about Clinton sewing up the nomination by beating her secret server rap on a highly dubious legal technicality. Polls have consistently shown Sanders, not Clinton, to be the clear favorite to beat their guy. One might have expected not Republicans, but Sanders, and other obsessed Trump-haters, to be out front on this issue. But it’s 2016, when the “progressive” revolutionary has endorsed the establishment plutocrat. Anything can happen. Like Tea Party Republicans effectively investigating a political fix that improved their Party’s electoral chances.
The not-so-super Democrat delegation indicated they still stood with “Crooked Hillary” on the FBI fix by booing unclever Bernie the morning after it was announced. It apparently never occurred to Sanders that these super-Delegate colleagues he was courting for support at the Convention had been fixed themselves. Rather than try to persuade them, Sanders should have gone over their heads to the Convention’s pledged delegates to make them disclose their conflicts of interest and recuse themselves. Instead he arranged for his own formal surrender to Clinton in New Hampshire on July 12 for reasons that did not make much sense.
FBI Director Comey’s unconvincing legal justification for his decision not to indict Clinton opened far more lines of inquiry than it closed. The purpose of this article is to assess that justification in detail, based in part on, but not limited to, Congress’ initial inquiries. His errors are cumulative. They involve both what Comey did and how he did it.
Before going into those details, a useful general introduction to the subject can be provided through Rep. Trey Gowdy, (R- SC), a former federal prosecutor. He walked Director Comey systematically through the false statements that Clinton told his Benghazi Committee in October. This evoked a sworn on-the-record FBI endorsement of what amounted to several counts of a potential criminal indictment of Clinton for making false statements under oath that the FBI had neglected to consider in its investigation. Having virtually framed the indictment of Clinton for lying to Congress, Gowdy then delivered a Socratic lesson to Comey on the subject of how just such “false exculpatory statements” by Clinton, along with Clinton’s pervasive and “complex scheme that was designed for the very purpose of concealing the public record,” could have been used in the “Servergate” case to prove her requisite criminal intent. Intent was the key element of the crime which Comey claimed the FBI could not find.
Gowdy completed his attack on Comey’s central evasion for not indicting Clinton by instructing him of the fact that intent is rarely proven by direct evidence, such as Comey seemed to suggest was needed. “You have to do it with circumstantial evidence,” Gowdy said. Gowdy outlined in less than five minutes for Comey what the FBI was somehow unable to piece together during what Comey proudly claimed was 3 years’ equivalent of investigatory work. The impression given by Comey’s testimony was that more of that time was spent developing the spin for the Obama administration’s political fix than gathering facts to support the criminal case against Clinton.
Many commentators, including Representatives Gowdy, Chaffetz and other oversight committee members, concluded that Comey is operating within the framework of a two-tiered system of justice by providing an evasive justification of insufficient intent that would supposedly be supported by mythical “reasonable prosecutors.” In a pay-to-play plutocracy, the influence-peddling and influence-buying political class shares one kind of law and everyone else has another. See Matt Taibbi, The Divide: American Injustice in the Age of the Wealth Gap (2014). During days that police were killing people in the streets of Baton Rouge and Minnesota, the political elite in the capital were displaying their own impunity to accountability under the law.
It may be only a coincidence that Obama appointed Lynch Attorney General very shortly after Clinton started deleting her “Servergate” files in February 2015. And it may be a coincidence that Comey, who had no prior experience with the Bureau but much experience with politically sensitive legal issues, was appointed its Director shortly after the time in 2013 that Clinton’s potential crime was first coming to light. But was it a coincidence that Obama failed to appoint a State Department inspector general during all four years of Clinton’s tenure as Secretary of State? Or, at least in hindsight, was that grossly negligent, especially in light of the Clinton families’ known conflicts of interest during that whole period? Assigning execution of the fix to Comey kept Obama an intermediating attorney general away from his own involvement in it.
The FBI does not prosecute, and does not evaluate or fire prosecutors. It investigates federal crime, which is a technical and not political process. It is not the FBI’s job to tell prosecutors how to do theirs, but rather to provide the investigation needed for prosecutors to make legal decisions based on reliable and thorough facts. The Federal Bureau of Investigation’s duties do not include making policy, nor inventing novel legal interpretations of the legal elements of crimes.
Comey’s opinion was that commission of the crime detailed in the FBI’s investigation should not be prosecuted because of insufficient evidence of “intent” by Clinton. This opinion was not only based on a failure to marshal available evidence, as Rep. Gowdy pointed out, but also multiple misinterpretations of well-settled law, as discussed in later sections hereof. Comey’s announcement also prejudices any future prosecution the Justice Department might have decided, or may still decide, to pursue in the future, unless Comey’s opinion is firmly discredited as an historic abuse of the FBI Director’s authority.
As judged by Matthew Miller, a former Justice Department official, Comey’s performance was “a gross abuse of his own power,” in part because he “substituted his judgment for that of prosecutors.” The FBI’s autocratic legend and founder who was not shy about expanding the powers of the Bureau, J. Edgar Hoover himself, decreed: “We are a fact gathering organization only. We don’t clear anybody.” Sixty years later, Comey has amended this Hoover rule: except we will clear a Clinton, when necessary to determine the next president.
Comey’s unprecedented polemic (it cannot be dignified as legal analysis) about Clinton’s intent violated the general rule that one does not ever speak publicly about a pending investigation or litigation because that can distort due process in the courtroom. He engaged in dramatically improper conduct for political purposes. This institutional misconduct is one reason why Comey should be at least fired, if not formally reprimanded or impeached by Congress for his historic intervention of the FBI into electoral politics.
The argument for impeaching Comey is that if Comey does not suffer serious consequences in public, the Clinton case cannot be effectively prosecuted. He has spoiled the case, by his unprecedented public advocacy for failing to faithfully execute “the Laws.” (Art. II, Sec. 3.) He has established a dangerous precedent for abuse of FBI power that needs to be soundly rebuked. Since he is not an elected official, that is difficult to do in any other politically responsible manner than the constitutional process for checking inappropriate executive action, an impeachment vote by the House of Representatives. (Art. II, Sec. 4.). His errors in stating the governing law on which he based his institutionally improper opinion provide yet other reasons for disciplinary action. His advice to the American people and Congress on the law of intent was so distorted, however cleverly it may have been presented, as to constitute either malpractice or a breach of his professional duty to serve the interests of the United States, not of the Clinton family political machine.
This impropriety of the chief federal investigator acting as prosecutor, judge, and grand jury arose out of the context where Comey’s boss Loretta Lynch had said she would abdicate to the FBI her duty to make the legal decision on the Clinton case, rather than simply recuse herself for her ethical lapse in holding a secret ex parte meeting with Bill Clinton, a potential target and surrogate of the main target of the investigation.
By making the legal decision himself rather than properly leaving it to senior Justice Department lawyers and Attorney General Lynch, Comey clearly did a political favor not only for Lynch but also for President Barack Obama, who also has a flair for prejudging pending cases, as he did this one. Both Lynch and Obama would otherwise have had to take political responsibility for a distorted legal analysis, before an historically dissatisfied electorate, for an unpopular and controversial partisan political decision, the first of its kind in U.S. history.
Both had conflicts of interest as political partisans of the same stripe as Clinton. Obama would have effectively pardoned his endorsed successor for preserving his plutocratic legacy. Lynch would be exonerating her potential future employer, who may well eventually appoint her to be the first black woman on the Supreme Court, much as her husband had appointed Lynch to be US Attorney. The unknown, nominally Republican, Comey, who has under the radar burnished a false reputation as a technical professional, could more easily take the heat that would otherwise be directed at Lynch and Obama.
AG Lynch’s rehearsed, run-out-the-clock, stonewall demonstration before the Committee of her “prodigious dissimulation skills” (Franks,1:50) in furtherance of her abdication bordered on contempt of Congress. She acted out the purpose of her delegation to absolve herself of, and insulate Obama from, responsibility for the fix. On the merits, Rep. Gowdy, who knows how to conduct cross-examination, could not get a straight answer from Lynch to the simple question of why a “specific intent” standard was applied by the DoJ when the statute does not provide for it. That is the central issue raised by the fix, but Lynch had no opinion on it. Lynch’s riposte to nearly every question was that her sole decision was to, in effect, abdicate her duty and that questions on the details should be referred to Comey. Fingerprints of politicians other than Comey were thus wiped clean.
Loretta Lynch has experience in stonewalling Congress. This would appear to have been her main qualification for her current job. She has yet to give up her records pertaining to DoJ’s similarly fixed prosecutorial decision allowing the money-launderer HSBC to walk with a slap on the wrist. Notwithstanding “a congressional subpoena requiring Attorney General Lynch to timely produce these records” she “remain[s] in default on [her] legal obligation to produce the subpoenaed records to the Committee.” Comey was in the employ of HSBC when Obama hired him.
Comey’s public recitation of facts sufficient to indict denied Clinton the opportunity she would have otherwise had, if indicted on those facts, to controvert those facts in court. This form of state slander was undoubtedly the price Comey had to pay to prevent mutiny from the professionals inside his Bureau. Had he suppressed the facts while performing his political fix, it would have appeared that the FBI had failed to do its job. One former spy who is closely following the case suggested that “there are high-ranking spies who [we]re perfectly willing to leak the sordid details of …. exactly what Hillary Clinton did,” had Comey failed to make a credible accounting. He reconciled the conflict between professionals in the Bureau and the fix by stating the indicting facts while inventing a legal technicality to avoid indictment.
Comey was able to make a political decision appear to be a technical decision of an apolitical branch of government by basing it upon his peculiar views of the evidence necessary to prove intent, at least in this one case. Comey first recited facts that have long been known by the public. These facts supported the conclusion that Clinton had been “extremely careless” with government information. Comey also admitted these facts contradicted exculpatory public statements by Clinton. Comey then delivered the surprise, a contrary operative finding that “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” As Rep. Gowdy explained to Comey, one of the errors behind this technical decision about intent was that it failed to take proper account of the inferences that may be drawn from the circumstantial evidence of Clinton’s intent to break the law.
Among the other lapses of judgment that Comey defended, he did not think it germane to an assessment of her intent that Clinton, and nine of her former top aides, refused to be interviewed by the State Department inspector general. A person of innocent intent would have no reason to avoid such an interview by her former employer on a matter within the legitimate scope of her employment. That her top aides circled the wagons is further such evidence.
Comey’s refusal to comment on the existence or not of a related Clinton Foundation investigation suggests that, contrary to speculation, the very public allegations of Clinton’s handling of her systemic conflicts of interest were not part of the secret server investigation. Such a joint investigation of the two potentially related matters would have justified the long delay of the FBI’s investigation. Not taking into account the Clinton Foundation line of inquiry, however, excluded consideration of a potential motive for Clinton’s prioritizing over keeping the nation’s secrets, instead, keeping her copious “private” emails secret from the government.
About half of the total emails were allegedly private, representing a quite intensive “private” life for someone in such a responsible public office who is not overly into computers, as Comey claimed. This allocation of attention would be consistent with the widespread allegation that Clinton was busy serving her family Foundation fortune at the same time she was serving the public. See Peter Schweizer, Clinton Cash: The Untold Story of How and Why Foreign Governments and Businesses Helped Make Bill and Hillary Rich (2015). Investigator Greg Palast points out that notionally private communications – so designated because addressed to Clinton’s family members and their conflicting business interests — did nevertheless involve the official business of selling the country’s foreign policy in exchange for “contributions” to the Clinton Foundation. Such communications would have been public, not private.
The potential Clinton Foundation motive would have been more nefarious by far than the motives that Comey does approve for prosecution in other cases, such as whistleblowing on matters of mismanagement or torture. The damage done may also have been greater. William Binney, a former high-ranking NSA official, claimed that the “rather devastating compromise of technical capability and a commensurate loss of high value intelligence” from just one 2011 Clinton email released by the State Department may be “difficult for the public to understand and comprehend, but it is … much worse than what Julian Assange or Chelsea Manning or any of the other whistleblowers have done.” This one email wasn’t redacted because it was sent to Clinton by Sid Blumenthal, a private citizen with no security clearance. But as shown in many other emails he sent to Clinton, he somehow had access to the latest top secret NSA information that revealed the NSA’s sources and collection methods.
This inquiry demonstrated that Comey had failed to consider even the obvious circumstantial evidence of intent contained in the FBI’s own interview. But he had already fixed the interview so that he could not effectively “parse” or use it as admissible evidence of intent when he decided to conduct this most important interview in the Bureau’s history essentially off the record, and also subject to unprecedented nondisclosure agreements.
Due to repeated professions of ignorance of this kind, Comey’s formula that he did not “find clear evidence” was less than convincing that he had looked in the right places for that evidence.
Comey’s finding was not that Clinton’s conduct did not possibly violate the law, but rather drawing a legal inference from Clintons’ excuse amounting to “Whoops, sorry, didn’t mean to, didn’t know, won’t do it again.” Voila! For Comey that meant, no intent; no crime. As Gowdy’s questioning suggested, if, when Comey used the word “clear” to describe the quality of evidence of intent that he could not find, he actually meant the legal term “direct,” that kind of evidence almost never happens in the real world of proving intent. The evidence of intent, unless clarified by confession, is always inferential, circumstantial, and indirect, not “clear” in a possible colloquial use of that term that Comey seemed to employ. He admittedly used the same tactic of substituting a colloquial (“common sense”) term when evasively substituting “extremely careless” and other terms for the legal concept of gross negligence, as discussed below.
Since “clear evidence” is not a legal term, the country is left to guess what Comey’s subjective meaning for the term is. The impression left by Comey, which Gowdy forcefully challenged, was that indirect and inferential evidence was not considered by Comey to be “clear” evidence, and therefore Clinton could only be indicted if she confessed. Indeed, Comey suggested what he meant by the term “clear” when he did distinguish the very similar Deutch case from being precedent on the grounds that Deutch had “admitted, ‘I knew I wasn’t supposed to be doing this.’” The idea that no prosecution can be maintained without a confession is of course the most arrant nonsense. Rep. Duncan reported that when he was a judge he “saw many cases where the evidence of criminal intent was flimsier than the evidence in this case.” But Comey has so far, at this initial stage of the inquiry, gotten away with asserting the contrary.
Comey was presumably seeking a kind of clarity that would have dispelled his opinion about, among other things, Clinton’s apparent denial that she understood classification markings within a text of a document: “I think it’s possible — possible that she didn’t understand what a “c” meant.” Then Rep. Meadows questioned whether it is reasonable to accept such a denial of knowledge, i.e., “wouldn’t a reasonable person think that someone who has the highest job of handling classified information would understand that?” Comey replied: “I think that’s the conclusion a reasonable person would draw. It may not be accurate.” One can observe Comey retreating here, from applying the legal reasonable doubt standard into some subjective standard of his own labeled “clear evidence” where what is reasonable might still conceivably not be accurate. But the reasonable doubt standard is designed to exclude just such unfounded, unreasonable speculation that would be permitted by Comey’s improvised “beyond all conceivable doubt” standard.
Provided Clinton did raise a defense of her own ignorance, which no jury would likely accept as reasonable, if Comey was looking for other “clear” evidence of intent than a confession, he was looking for some abstraction that does not exist, and which the law does not require. No matter how much one looks no other direct evidence will be found without extraordinary investigatory measures. Comey was apparently not looking for it by using such surveillance. He did not disclose the existence of wiretaps or bugs to monitor Clinton’s private conversations for which he likely did have probable cause.
To be sure, the public allegations accuse Clinton of treason, selling secrets and favorable decisions to foreign countries. The existence of a secret server would provide circumstantial evidence in an investigation of that question, if the question of intent were legitimately open. Surveillance evidence was not discovered under Comey’s leadership apparently because he did not seek it.
Nothwithstanding his failure to look for the direct evidence he claimed to require, Comey’s apparent reliance on a distinction between “clear” and “circumstantial” would violate the law of evidence which draws no distinction or hierarchy in weight or value between circumstantial and direct evidence for purposes of aiding a jury’s search for the truth.
In addition to Comey’s opinion about the lack of “clear evidence,” which he did not seek, and which lacks any basis in the law of evidence, also departed from the traditional standard of reasonable doubt in favor of a subjective standard of his own, Comey’s new standard is premised upon his personal view that “the conclusion a reasonable person would draw…. may not be accurate.” This application of a super-reasonable doubt standard, “beyond all conceivable doubt,” is only compounded by two major errors in defining the legal element of intent which is discussed in detail below. Before discussing these additional legal errors, first, it should be pointed out that Comey offered his erroneous opinion on these legal matters to support his “judgment … that no reasonable prosecutor would bring … a case” for Clinton’s “potential violations of the statutes regarding the handling of classified information.” As mentioned, this judgment went beyond Comey’s position as FBI director to give, and it was given on the basis of his own idiosyncratically erroneous legal tests on multiple issues which Comey thought all reasonable prosecutors should share. The opposite is true. No informed prosecutor would share any of Comey’s series of erroneous legal opinions. Rejecting any one of his errors would lead to reversing the decision not to indict.
As a general matter Comey is wrong about lack of internal DoJ precedent so far as use of circumstantial rather than direct evidence. Circumstantial evidence has supported convictions in recent cases. In the notorious case of Jeffery Sterling, the Department of Justice was able to imprison a CIA agent on the sole basis of circumstantial evidence amounting to little more than speaking to a reporter (Risen). The case was partially motivated by retribution for Sterling’s racial discrimination claim against the agency. Another entirely circumstantial case was made against a mid-level bureaucrat for talking with another reporter (Rosen) without any direct proof of intent, let alone of any unlawful transfer of particular information. These cases used circumstantial evidence for every element of the case, including intent, whereas Servergate as direct evidence of other elements.
Comey’s specific characterizations of the different categories of precedent that he defines will be discussed separately. Again, Comey probably did not “see those things” because he did not look, mainly because he was looking for the wrong thing or not using surveillance to look for direct evidence he required, as already discussed with regard to his “clearly intentional” legal innovation. Clinton’s server did involve “vast quantities of materials exposed in such a way as to support an inference of intentional misconduct.” It was not just a mistaken channeling of a few emails through her separate personal email. It was systemic and vast removal of her routine official email traffic from secure government channels to her insecure private server domain used for her private/public hdr22@clintonemail.com address.
Clinton deliberately commingled the personal and the public, permitting her at her own and her lawyers’ discretion to later delete the public’s communications under the now unverifiable, and apparently inaccurate, excuse that she only deleted her personal communications. There is no reliable way of knowing all of what she deleted because the data was wiped nearly clean, which provides yet further circumstantial evidence of intent.
What would be enough evidence of intent for a “reasonable prosecutor” to pursue a conviction for this violation is left to Comey’s own subjective standards. An objective standard would be met, first, by restraining the FBI Director within the proper scope of his duties, then appointing a professional unbiased special prosecutor to separately and objectively assess the legal implications of the facts the FBI produced. The prosecutor would be assessing the quality of the FBI’s evidence instead of the FBI assessing the reasonableness of the prosecutor. The prosecutor should be free of political ties and conflicted interests, such as job retention or promotion in a new administration, such as Comey has. Then the case should be presented to a grand jury by the independent prosecutor for possible indictment to determine its objective validity.
This would be the constitutional process that a reasonable prosecutor would use to achieve objectivity in prosecutions of this political kind of matter. But as mentioned above, the case cannot now be prosecuted unless Comey himself suffers consequences for his improper and unprecedented conduct that relegated the legal and policy decision of whether to prosecute to his own subjective standards under the pretext of being a technical decision backed by the prestige of the FBI. That no responsible FBI Director would have acted in this matter tends to discount Comey’s expertise in determining what is reasonable, for prosecutors or anyone else.
The FBI investigated this case as a violation of 18 U.S.C. §1924, and published a press release just one year ago lacking any suggestion that the FBI considered Hobler to be anything but a “reasonable prosecutor” for winning this case. Though not nearly as significant as Clinton’s similar conduct, this case was virtually identical as far as the element of intent goes. Intent was not an issue. In fact, the investigation of the Nishimura case found no motive “to distribute classified information to unauthorized personnel,” which is not quite true of the Clinton case where she assigned her evidence tampering to lawyers. But lack of a wrongful motive was not a problem for the prosecution of Nishimura. Comey contended the Nishimura case could be distinguished when it was raised by a committee member at the hearing, but he did not actually say how.
Congress needs to ask the Director to put together a dossier of similar cases that the FBI has investigated, and reasonable prosecutors prosecuted, and therefore which Comey might have thought could be distinguished although their relevant facts are similar to Clinton’s case. Since in his July 5th presentation Comey said “we cannot find a case that would support bringing criminal charges on these facts,” we need to know if his definition of “these facts” include only facts legally relevant to proof of intent, or if he considers distinctions that are political or otherwise legally unpersuasive.
When Comey produces all the available legal memoranda distinguishing such cases as the Nishimura case, or the John Deutch case, and others, it should be made public so people can determine whether these cases really are so different in principle from Clinton’s case after they have a “complete accounting of the facts” which Comey claimed they do not now have, but which he does have. It is almost certain that none of the cases prosecuted under the relevant statutes prohibiting mishandling of government records could be distinguished from Clinton’s with respect to the legal element of intent.
Comey has not only misled the public by his demand for evidence that Clinton’s violation of the law was “clearly intentional and willful” according to some subjective evidentiary standard of his own. More importantly, in his discussion of precedents, quoted above, he deliberately confuses the legal term “intent” with the separate concept of motive, which Comey refers to colloquially as intent instead of using the proper term motive. Comey’s description of his search for precedent suggests that he was not really looking for intent, but rather different varieties of motives involved in cases where forbidden material had been placed on private computer devices, or otherwise compromised. As established here through other examples Comey’s practice for sowing confusion in what amounted to a PR exercise is to avoid using legal terms. For example “context” is not a legal term. When he mentions the “context of a person’s actions” as an important variable for reasonable prosecutors, Comey is referring to motive, not intent, the term to which he juxtaposes the phrase.
In the Sterling Espionage Act case, proof of an alleged motive for disloyalty to the CIA was virtually substituted for the lack of any direct evidence linking the defendant to the crime. Such trumped up cases invite a jury to illegitimately convict a person for imputed bad thoughts, i.e., motives, when there is insufficient evidence of the defendant’s bad acts. But where motive is not an element of the crime, evidence that one does not have bad thoughts cannot be used for defensive purposes, to exculpate, as Comey suggests in his reference to “context,” meaning motive.
In the end, Comey’s argument amounted to little more than an opinion about the likely success of such a “bad thoughts” case against Clinton. But it ignored that Clinton’s “bad acts” was all he needed to prove. Clinton’s connection to those acts, unlike the Sterling case, are virtually unquestioned. By cleverly diverting his legal analysis of intent to the issue of motive, Comey made an inherently arbitrary political distinction between motives that the administration can tolerate by its friends and motives it disapproves and will land someone else in jail. This is a violation of the rule of law which does not recognize such political preferences but rather defines a crime applicable to everyone irrespective of their friends in high places or the kinds of motives their friends find politically threatening or not threatening to themselves.
This highly limited, solely evidentiary, role of motive in all ordinary criminal prosecutions is shown more clearly to be violated by Comey’s reference to the kind of “intent” that he said was defined by Justice Department precedent concerning “disloyalty to the United States; or efforts to obstruct justice.” “Disloyalty to the United States” was the imputed motive in the Sterling Case, for example. Obstruction of justice – by evidence tampering – may have been Clinton’s actual motive, as discussed above. Such categories involving motives for committing a crime must be distinguished from the element of intent to commit the underlying crime of mishandling the nation’s secrets, and other government information. Whether the criminal conduct was done for reasons of disloyalty, obstruction, evasion of FOIA, convenience, corruption or any other motive is not necessary for proof of intent. These “fundamentally distinct concepts” of motive and intent are jumbled up here on Comey’s list of precedents together with his discussion of “intentional mishandling” or “intentional misconduct,” instead of focusing on the actual element of intent to commit the acts which constitute a crime, whether for any motive or no objectively discernible motive at all.
Comey’s description of the DoJ precedent he consulted thus appears to share a concern more about the motive of the accused to accomplish some specific purpose by means of violating the law, rather than looking to the intent simply to violate a law, which all the precedents have in common with Servergate. Again, intent is an element of a criminal offense which must be proven to obtain a conviction, but motive – with very rare and particular exceptions – is not. Comey suggests the contrary, that some kinds of motive are more punishable than others.
Comey has let Clinton off because he did not find evidence of a motive sufficiently objectionable by his subjective standards, even though under the relevant statutes catalogued below motive is not even an element of the crime that needs be proven at all. It is not necessary to unpack Clinton’s motives in order to convict her of the crime. It is not necessary to make out a bad thoughts case here because it is not a circumstantial case on the other elements of the crime, as were other cases like Sterling. Clinton’s professions of innocent motive can dispute whether she had a more nefarious motive. But it cannot obviate that she had the necessary intent to commit the acts that constitute several crimes.
Clinton said it was for this interest of convenience that she wanted to use only one communications device, which is a somewhat less suspect motive than an unprecedented and unauthorized obsession with personal secrecy. It was Clinton’s decision to put both “the personal” and the public information equally at risk through her insecure server rather than risk disclosure of “the personal” by conveniently depending on the internal security processes of the State Department. This alternative motive raises questions about whether she might be hiding from the public (although not from foreign hackers) information as important to her as the nation’s secrets.
The alleged motive of Clinton wanting to use only one mobile device for convenience appears to be a lie in any case, because the FBI found she actually had used more than one device. Apparently, Clinton bought an iPad in 2010, just one year into her tenure as Secretary of State, while continuing to use her BlackBerry. If Comey’s sworn testimony does disprove Clinton’s convenience motive, that she wanted to have the personal and the public communications all on one device so as to avoid having two devices, then as the former prosecutor Rep. Gowdy pointed out to Comey, lying about her motives would be highly probative evidence of her intent. Rep. Gowdy contends, “if it were convenience Director, she wouldn’t have waited two years to return the documents and she wouldn’t have deleted them four years after they were created.” Comey made no coherent response to this statement.
Comey’s use of the term “willfully” in his “precedent” argument quoted above, as if it, like Comey’s subjective term “clear,” required some proof of motive, or a showing of specific intent, is legally outdated. The Supreme Court long ago rejected the idea that, without more, the term “’willfully’ requires proof of any motive other than an intentional violation of a known legal duty.” United States v. Pomponio, 429 U.S. 10, 11-12, (1976). The sole question that “willfully” can raise is whether Clinton knew she had a legal duty not to “remove and retain” confidential or other national defense information, or otherwise mishandle the public’s information.
It is not necessary to parse Supreme Court decisions to understand the fundamental difference between motive and intent. The distinction is embedded deeply in criminal law. A popular nineteenth century legal handbook edited by a Harvard law professor, for example, stated quite clearly that “motive with which an act was done is immaterial in deciding the question of criminality. A crime can be committed with a good motive…” “Motive may … sometimes be shown in evidence; but it is merely as evidence of intent. Motive must not be confounded with intent.” May’s Criminal Law (Beale, ed., 2d Ed.: 1893) 18.
Comey, in violation of these black-letter law principles, precisely did “confound [motive] with intent.” Though we may not be able to speculate about more than a generalized political career motive for Comey’s doing so, we could conclude from the unprecedented circumstances and extraordinary legal errors and vague terminology recounted here that it was intentional. In saying that Clinton lacked sufficient criminal intent according to the precedent he described, what he was actually saying was that the FBI did not have clear evidence of the kind of motive that Comey himself found sufficiently offensive, but not that he was lacking evidence of the element of intent which Congress required in order to prosecute Clinton’s violation of the law.
Comey’s argument, discussed further below, was that the unprecedented nature of the professed motives for a Secretary of State to commit the crime of systematically mishandling the nation’s secrets on matters of foreign affairs that were entrusted to her was an excuse for exonerating the crime. This argument does not provide a reason not to prosecute, although as the Supreme Court said it may be an appropriate argument at sentencing. But it would likely be another unprecedented feature of Comey’s approach to this case if such an argument were to be made on Clinton’s behalf by the prosecutor or the FBI at sentencing, rather than by her defense counsel.
Clinton clearly intended to give classified information to her lawyers who lacked security clearances, as well as to allow her uncleared tech support to have access to them. Comey had no good answer for such uncontested facts. Rep. Chaffetz asked Comey specifically about when Clinton gave “non-cleared people access to classified information… what do you think her intent was?” But Comey’s answer related solely to a possible motive: “to get good legal representation … to make the production to the State Department.” But Chaffetz accurately rejected Comey’s motive diversion in this instance, instructing him in Criminal Law 101, that “criminal intent [is] the idea that you allow somebody without a security clearance access to classified information. Everybody knows that Director, everybody knows that.” This last point it proven by the fact that Chaffetz is not a lawyer, but he knows the definition of intent does not include motive. The success of Comey’s fix depends on the public not knowing that motive is not the element of intent. By charging the Director’s confusion of motive with intent to be unreasonable, i.e., contrary to what “everybody knows,” Chaffetz is accusing the Director of either deliberate obfuscation or profound ignorance. It is up to his committee and other committees in Congress to resolutely pursue their inquiry so the public will understand Comey’s obfuscation sufficiently to support political action against to undo the fix.
It was not Congress that created such a hierarchy of motives in the relevant statute, a hierarchy that would exonerate the unprecedented motives of corrupt elites but not the quotidian motives of those without such power. In order to achieve the political aim of exonerating Clinton, it was her executive branch political allies, on delegation to the FBI Director, who reinterpreted the law to insert a motive, or specific intent, element of the crime, where none exists.
Even more important than Comey’s consistent confusion of motive and the ordinary intent element of a crime is his related erroneous view of the amount of evidence needed for its proof. The facts of motive, being more or less subjective, can be difficult to prove. The legal element of intent, once it is properly disentangled from motive, is nowhere near as difficult to prove as Comey wants us to believe. Again, it has been long established in criminal law that, “one [who] does an unlawful act … is by the law presumed to have intended to do it, and to have intended its ordinary and natural consequences.” Id. 19. That intent is presumed upon proof of the criminal act is why Comey wanted to divert attention to motive.
When Clinton arranged to have her public business conducted on an unauthorized private email server in her basement against the rules of the State Department, and therefore in violation of a number of federal laws – that act alone was sufficient to prove the intent element of the crime, the same as it would for any mentally competent, sane, adult. The burden is on Clinton, not Comey, to prove by persuasive evidence that she peculiarly lacked the capacity to have the same intent any reasonable person would have in taking the actions she did. Comey therefore misled the public and Congress when he claimed that as a general rule prosecutors are concerned about “the strength of the evidence, especially regarding intent.” Exactly contrary to Comey’s statement, intent is ordinarily the least “especial” element of a crime, since it is the only element that is routinely presumed.
Comey justified his political fix by saying, “I don’t think our investigation established she was particularly sophisticated with respect to classified information.” He is talking about knowledge of the law governing classified information. A predecessor of Clinton as Secretary of State, her election surrogate Madeleine Albright, lectured her employees that “if you are not professional about security, you are a failure.” Even if the kind of ignorance and failure in dealing with the nation’s secrets that apparently persuaded Comey about Yale Law School graduate Clinton’s motives were ever to be believed by a jury, or anyone other than Comey, ignorance of laws (not to mention Comey’s new standard of “lacking sophistication” about laws) concerning such matters is normally not a defense.
When Comey was challenged by Rep. Farenthold on this point that ignorance of the law is not a defense, Comey’s reply was that, however, “you must be aware of the generally wrongful nature of your conduct.” But that does not help Clinton. Comey acquitted her because of lack of very specific knowledge about specific emails, not lack of general awareness, which he admitted, that her server would inevitably contain classified information if she used it exclusively for all her work as Secretary of State. His “not sophisticated” defense does not hold up under even cursory examination.
Clinton’s ignorance defense would be even more difficult to sustain in view of signed documents where she acknowledged her understanding under oath, for example, that “classified information is marked or unmarked classified information.” This precludes, as irrelevant, Clinton’s public defense that the over 100 classified messages found on her server were unmarked, which was itself not entirely true..
There are some obvious exceptions to the general rule that intent is presumed, and evidence of motive, or specific intent, therefore unnecessary to proof of the crime. Specific intent is occasionally required for such crimes as hate crimes, civil rights violations, and treason where an evil motive is an express element of the crime. There are also some less obvious exceptions where “Congress may decree otherwise” by expressly adding a “willful” element for criminalizing “not inevitably nefarious” regulatory offenses, such as involving taxation, or “currency structuring.” See Ratzlaf v. United States, 510 U.S. 135 (1994). Neither has Congress generally created such a motive element for the laws intended to protect the government’s interest in secure communications, nor are such laws normatively neutral regulatory measures of the kind that do require specific intent because most people would not expect the ordinary conduct involved to be a regulatory offense. Moreover the government has not in practice treated these laws as requiring a nefarious specific intent in cases like the Deutch case, where the motive was similarly one of mere convenience, and nothing more. Some of the other relevant statutes described below that the FBI did not take into consideration do require proof of specific intent for, generally, evidence tampering.
One writer who offers legal credentials as authority for rendering political opinion has supported the FBI’s decision to exonerate Clinton. He claims it was justified by “a legal concept called mens rea. As a general rule, most crimes require prosecutors to prove that an individual acted with a particular state of mind before they can be convicted of a specific crime.” This statement is erroneous on several grounds.
First, this statement is misleading to the extent it suggests that “most crimes” require specific (“particular”) intent, or motive to commit a “specific crime.” As mentioned above, contrary to this assertion, very few crimes require specific intent, or proof of motive. “As a general rule,” intent is presumed from the commission of the illegal act, and prosecutors have little concern about difficulties with proving intent.
Unlike the Espionage Act, 18 U.S.C. § 793(a), which applies to anyone and not just public employees, those few laws that Comey selected as within the scope of the FBI inquiry regarding Clinton’s emails, such as § 793(f), do not require a specific motive or knowledge that the mishandled information was “to be used . . . to the advantage of any foreign nation.” Under § 793(f) the material itself only needed to relate to national defense, an element which does not concern motive but rather describes the kind of information protected by that particular statute.
Contrary to Comey’s assertion, the § 793(f) statute does not mention classification. The statute concerning classification is 18 U.S.C. § 1924 which applies when “an officer …of the United States … by virtue of his office … becomes possessed of documents or materials containing classified information … knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location.” The latter statute does not apply to the general public who cannot be expected to know what officials can be expected to know about classification. The public is protected by a specific intent requirement, such as § 793(a)’s.
Similarly § 793(f) applies to a potentially even narrower and better informed group of persons, presumably also officials, who are “entrusted with” or have “lawful possession or control of” a national defense document. It is this statute that lowers the mens rea to gross negligence. Consistent with this rational statutory scheme, the higher the official, and the less comparable to the general public, the less entitled is a defendant to the protection of a specific or even general, intent standard. Knowledge can be more easily presumed of a high official entrusted with and in control of such information than of a member of the public.
Clinton did not have “authority” for removing her materials from the State Department communications system and did retain them at an unauthorized location, which she did until she was forced to return them upon discovery of her server nearly two years after she left office. There is certainly circumstantial evidence of intent to retain and never return the material, had the existence of her server not been discovered. Asked about whether “keeping the servers at home … obviously is not in compliance with the department’s policies,” Comey answered “Yes.” In response to Rep. Buck’s proposition: “that [Clinton] knew that she didn’t have authority to have this server in her basement?” Comey replied: “Yes, that’s true.” Any reasonable person would have known that classified information would be “removed and retained” by Clinton’s secret server operation. Rep. Buck established this fact by asking: “as secretary of state, she also knew that she would be receiving classified information.” Comey replied, “Yes, in general.” On these facts the general intent to commit the crime is presumed. Comey admitted that no other proof of intent is required.
Representative Gowdy concluded his questioning by attacking the lack of precedent excuse that Comey gave for recommending against prosecution. Comey’s lack of precedent argument is about motive, not intent. It stems from the fact that no prior Secretary of State had systematically removed their communications including the nation’s secrets from the State Department to their basement where secrets were insecure. Over their lifetime of scandals and corruption, such as the engine for global conflicts of interest labeled “The Clinton Foundation,” the Clinton’s atrophied ethics have always tended to break new ground. The predatory sleaze that led to Bill Clinton’s historic impeachment was also unprecedented. The fact that there would be no precedent for Clinton’s particular motive for secrecy does not immunize the criminal conduct she committed in pursuit of that secrecy.
Once intent is distinguished from motive, then there is no lack of precedent. Circumstantial evidence similar to Servergate has recently supported other convictions. In the notorious case of Jeffery Sterling, the Department of Justice was able to imprison a CIA agent on the sole basis of circumstantial evidence amounting to little more than speaking to a reporter (Risen). The case was partially motivated by retribution for Sterling’s racial discrimination claim against the agency. Another entirely circumstantial case was made against a mid-level bureaucrat for talking with another reporter (Rosen) without any direct proof of intent, let alone of any unlawful transfer of particular information.
Gowdy and Chaffetz turned Comey’s “no precedent” claim around against Comey, suggesting that instead of lack of precedent being an excuse not to prosecute, that Comey was himself making bad precedent by failing to prosecute on the ground of lack of intent. There is now no disincentive for Clinton or her staff or anyone else with enough influence not to operate the same privatized communications system whether in the presidency or in any other high position of trust, provided they to not confess and have the political clout to fix the FBI Director to abuse official powers as an investigator by usurping the role of prosecutor, to alter the reasonable doubt standard, to confuse motive with intent, to forget the elementary criminal law principle that intent is presumed, to ignore that intent may be proven by circumstantial evidence in the rare cases where it does arise as an issue, and most generally draw a conclusion in public that is not rationally supported by the specific evidence and admissions about the law that he made under oath.
The FBI did not record, transcribe, or take sworn testimony of, its Saturday interview with Clinton, probably the most consequential interview in the history of the FBI. Comey’s subjective judgment that there was no evidence that Clinton made false statements to the FBI, a charge the FBI can usually gin up in such a case, cannot be objectively tested because the interview was so informal and secret. Rep. Mica requested from Comey the “302” account of the interview made from agents’ notes. These notes must be made public, if only as concrete evidence of investigatory negligence by Comey. Since jeopardy has not attached to Clinton, Congress should set up a special prosecutor’s office with full investigatory powers who would, at minimum, conduct a proper interview, suitable to the profound importance of the case.
Comey admitted to the Chairman of the House Oversight Committee that the FBI did not investigate lies told to the Benghazi Committee under oath on the same subject for the unbelievably “see no evil” technical reason that it did not have a “referral” from Congress to do so. Referrals are to apprise the enforcement branch of a possible crime. One would not think deference to Congress for initiating an investigation of crime occurring in its midst would be a legitimate excuse to screen out evidence of an element of a crime already under investigation within the Executive Branch. On hearing this “no referral” excuse, Committee chair Chaffetz responded: “You’ll have one in the next few hours.” One wonders if the FBI will investigate the question whether Clinton intentionally lied to Congress as gingerly and at the same level of competence as the FBI’s first limited investigation, which even non-lawyers on the Oversight Committee were able to effectively criticize. More important, the referral should force Comey to consider Clinton’s lies under oath as circumstantial evidence of intent, as Gowdy instructed.
The FBI’s “thorough” investigation, taking 3 years of workhours, did not cover Clinton’s associates who sent her classified information and who clearly did have specific intent about particular messages, as revealed when Rep. Massie inquired about “someone down the chain being investigated.” The fix was in for the whole Clinton machine, not just Hillary.
Another matter raised at the hearings that Comey did not pursue was that Clinton may have had on her insecure secret server the names of covert CIA officers, the disclosure of which is a felony under the Intelligence Identities Protection Act.
Stein is correct that Section 793(f) punishes anyone “entrusted with … information, relating to the national defense, [who] through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.” No one disputes that the FBI’s “extremely careless” and “reckless” factual findings, which Comey described as common-sense terms that mean “real sloppiness,” precisely satisfy this statute’s reduced standard of “gross negligence.” Comey explained that as a matter of policy he did not wish to apply these literal terms of a statute that reduces the ordinary element of intent to this lower standard. He instead asserted some institutional policy disagreement with the statute, although the law remains on the books to be used to intimidate others.
This stand by Comey, if legally mistaken, would violate the constitutional obligation of the executive branch to “take Care that the Laws be faithfully executed.” (Art. II, Sec. 3). Unless Comey can now produce a cogent constitutional argument that Congress’ requirement of a lesser standard of intention in this “gross negligence” statute governing specially trusted persons is a violation of due process, then his refusal to indict presents a separation of powers crisis. There is no governing precedent permitting the Justice Department, let alone the delegated FBI, not to enforce this law because it disagrees with it. Congress should either amend the statute to conform it to constitutional principles that Comey advocates or alternatively insist that it be enforced on pain of impeachment for failure to execute a valid law, so that the Supreme Court can ultimately decide the due process issue for everyone. Leaving an invalid law on the books after Congress has been formally told that the Justice Department refuses to enforce it is in itself of serious constitutional concern.
Beyond the response of requiring the Justice Department to produce a fully articulated and convincing argument for unconstitutionality of the “gross negligence” standard to Congress (along with a parallel non-political review of the question by the Congressional Research Service), this gross negligence issue is something of a red herring from the real issue. The real issue is that Comey has delivered a political fix outside his proper powers by his confusion of intent with motive, changing the rules of evidence to devalue circumstantial evidence, inventing a new heightened standard for not “reasonable” but “an possible doubt,” and ignoring the presumption of intent. There is obvious existence of sufficient objective evidence necessary to present the element of intent to a grand jury, as a majority understands already. There is almost no possibility that a grand jury representative of the public would not indict.
As Rep. Gowdy accurately pointed out, the problem is that Comey is “reading a specific intent element into a gross negligence statute, not even general intent.” In other words Comey is using the standard deception technique of setting up a false dichotomy, between a kind of specific intent which none of the relevant statutes support, and gross negligence, which 793(f) supports. Comey is thereby trying to ignore the fact that what Gowdy calls “general intent,” which is the ordinary intent element of most crimes, can be easily proven by the evidence of Clinton’s conduct from which her intent to do something the law forbids can be presumed or easily shown by circumstantial evidence.
Comey has, in fact, invented his own statute that would require not just specific intent of some important factor, like evidence tampering, but specific intent with respect to each separate instance of mishandling of classified material rather than only the general intent for a pattern and practice that any reasonable person understands would naturally result in the mishandling of classified information. Meanwhile Comey’s specific intent requirement rewritten to support his conclusion not to indict directly contradicts the “generally wrongful nature of your conduct” standard he acknowledged under oath to be the actual applicable standard.
No reasonable legislator would write such a statute, as Comey did, so far out of the mainstream of criminal law principles. But if they had, maybe Comey would be right about just one thing. No reasonable prosecutor would use it.
It is clear that, by eliminating Sanders’ last best hope for nomination, Comey has significantly changed the course of history and helped elect his future boss, a plutocrat of whichever party. He has protected the plutocracy from progressive reform. Clinton’s history suggests that there is more to this shady bunch of fixers yet to be uncovered. The clearest message uniting the delegates to the Republican Convention is that they want to “lock her up.” With Trump such a weak candidate, Republicans would do better putting pressure on Congress to take the action it can now to impeach those who performed the fix, and have whoever is left standing in the DoJ redo the indictment decision before Clinton wins. November may be too late to rescue the rule of law from the Clinton political machine.


National Labor Relations Act (NLRA), 29 USC §158(a)(1)(3)(4).
Fair Labor Standards Act (FLSA), 29 USC §215(a)(3), 216(b). The FLSA prohibits discharge of employees for exercising rights guaranteed by the minimum wage and overtime provisions of the Act. In general, the FLSA requires employers to pay time and one half to employees who work more than 40 hours per week. Certain employees are exempted from the provisions of the FLSA based upon their executive, administrative or professional status.
Title VII, Civil Rights Act of 1964, 42 USC §2000(e)-23(a).
Age Discrimination Employment Act (ADEA), 29 USC §623, 631, 633(a).
Americans With Disabilities Act (ADA), 42 USC §1201 et seq.
Employee Retirement Income Security Act of 1974 (ERISA), 29 USC §1140, 1141.
Consumer Credit Protection Act (CCPA), 115 USC §1674(a).
Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C.A. §§ 4301 - 4333. The USERRA requires reinstatement of employees who have served in the armed services and prohibits an employer from discriminating against those in the armed services.
The Family and Medical Leave Act (FMLA). Protects employees who need to take time off work for a serious health condition or to care for a family member with a serious health condition.
Elliott Larsen Civil Rights Act (ELCRA), MCLA §37.2101.
Michigan Persons with Disabilities Civil Rights Act (PDCRA), MCLA §37.1101.
The PDCRA prohibits discharge based on a disability which is unrelated to the individual's ability to perform the particular job or position. The statute mirrors in many respects, the Americans With Disabilities Act.
Michigan Whistleblowers' Protection Act (MWPA), MCLA §15.362.
Certain statutes in Michigan also prohibit the discharge of an employee because he or she chooses to exercise rights under that law. e.g. Michigan Occupational Safety and Health Act (MI-OSHA), MCLA §4081001 et seq.
[If] the employers had desired, they could have established a company policy of requiring prospective employees to acknowledge that they served at the will or pleasure of the company and, thus, avoided the misunderstandings that generated this litigation. 408 Mich App 612.
Since the Toussaint decision, Michigan courts have consistently upheld the dismissal of implied employment contract claims on the strength of language which explicitly provides for at-will status. Ironically, the most successful employer in this regard has been a company that drafted an employment application which included the at-will language prior to the court's decision in Toussaint. Sears Roebuck & Company has successfully defended numerous implied contract cases by arguing that it took the precise steps outlined by the Toussaint court to preclude employees from gaining a legitimate expectation of just cause employment. See Reid v Sears Roebuck Co, 790 F2d 453 (6th Cir 1986); Summers v Sears Roebuck & Co, 459 F Supp 1157 (ED Mich 1982); and Eliel v Sears Roebuck & Co, 150 Mich App 137 (1985).
In Lytle v Malady, (On Rehearing), 458 Mich 153 (1998), the court held that the company's employee handbook was insufficient to create a jury question over whether the plaintiff had a legitimate expectation of just cause employment. The particular language involved stated, "no employee will be terminated without proper cause or reason and not until management has made a careful review of all facts." The handbook also contained a disclaimer stating that the text of the book did not constitute a contract between the employer and any group of employees. The court held that the employer's explicit policy statement which forbade discharge except for just cause could not have reasonably created a legitimate expectation of just cause employment. The court accepted the employer's argument that the language providing that the handbook did not create a contract was a sufficient at-will disclaimer. The Lytle case rejected the argument that a jury issue is created when an employer sends "mixed signals" to its work force regarding the nature of the employment relationship. In other words, so long as the employer has an at-will disclaimer in place, it negates any reliance upon other provisions in the handbook which may create a legitimate expectation of just cause employment.
a) Explicit legislative statements prohibiting discharge, discrimination or adverse treatment of employees who act in accordance with the statutory right or duty;b) "Legislative expression of policy" - for example, discharging an employee for refusing to violate the law during employment; or,c) Retaliatory discharge.
The leading case in this area is Trombetta v Detroit, 81 Mich App 49 (1978). Trombetta involved an employee who was terminated for refusing to forge reports on behalf of his employer. Trombetta is somewhat unique in that there was no express legislative provision involved which prohibited retaliatory discharge. In Dudewicz v Norris-Schmid, Inc, 443 Mich 68 (1993), the court held that a claim based on a violation of public policy cannot be raised when an applicable statute prohibits a retaliatory discharge for the plaintiff's conduct. Under those circumstances, the statute provides the plaintiff exclusive remedy.
The statute most involved in retaliatory discharges is the Workers' Disability Compensation Act of 1969 (WDCA), MCLA §418.101 et seq. In Sventko v Kroger Co, 69 Mich App 644 (1976), the court held that cause of action is stated when an employee is discharged in retaliation for having filed a Workers' Compensation claim. In Philip's v Butterball Farms Co, 448 Mich 239 (1995), the Michigan Supreme Court resolved a conflict in the Court of Appeals and held that a claim of retaliatory discharge sounds in tort and not in contract. Consequently, the full tort remedies are available for a retaliatory discharge in violation of public policy. The Whistleblowers' Protection Act (WPA), MCLA §15.361 et seq. is a subset of the public policy exception to the at-will-employment rule. The WPA provides that an employer cannot discharge, threaten, or otherwise discriminate against an employee because the employee reports or is about to report a violation or suspected violation of federal or state statute or regulation to a public body.


text:
610, note; Lingan v. Carroll, 3 Har. & Mch. (Md.) 333, 338; Deford v. Deford, 36 Md. 168, 179.
47. 7 Wm. IV. and 1 Vict. c. 26, Sec. 25; 2 Woerner, Administration, Sec. 438.
48. 1 Stimson's Am. St. Law, Sec. 2822.
49. In re Upham's Estate, 127 Cal. 90, 59 Pac. 315; Drew v. Wakefield, 54 Me. 291; Thayer v.
Wellington, 9 Allen (Mass.) 283, 296; Molineaux v. Raynolds, 55 X. J. Eq. 187, 36 Atl. 276; Cruik-shank v. Home for Friendless, 113 N. Y. 337, 4 L. R. A. 140, 21 N. E. 64; Albany Hospital v. Hanson. 214 N. Y. 135, 108 N. E. 812.
50. Massey's Appeal, 88 Pa. St. 470; Rizer v. Perry, 58 Md. 112. See 2 Woerner, Administration, Sec. 438.
51. 29 Car. II, c. 3, Sec. 6. See Swinton v. Bailey, 4 App. Cas. 70.
52. 1 Stimson's Am. St. Law, Sec.Sec. 2672, 2673.
53. 1 Jarman, Wills, 118; 1 Woerner, Administration, Sec. 48. The statute frequently contains a provision to this effect. 1 Stimson's Am. St. Law, Sec. 2672(C).
54. Burtenshaw v. Gilbert, Cowp. 52; Burns v. Burns, 4 Serg. & R. (Pa.) 295. See Lord's Estate, 106 Me. 51, 75 Atl. 286.
55. Strong's Appeal, 79 Conn. 123, 6 L. R. A. (N. S.) 1107; Semmes v. Semmes, 7 H. & J. (Md.) 388. See, as to dependent relative revocation, post, this section, notes 70-73.
56. Giles v. Warren, L. R. 2 Prob. & Div. 401.
57. Rich v. Gilkey, 73 Me. 595; Brunt v. Brunt, L. R. 3 Prob. & Div. 37; Lang's Estate, 65 Cal. 19; Sprigge v. Sprigge, L. R. 1 Prob. & Div. 608; Forbing v. Weber, 99 Ind. 588; Delafield v. Parish, 25 N. Y. 9. In Billington v. Jones, 108 Tenn. 234, 91 Am. St. Rep. 751, 56 L. R. A. 654, it was held that, in the absence of a statute fixing the mode of revocation, the writing in pencil, below the signature, of a statement that the will was null and void, was sufficient.
In a considerable number of states it is provided that the cancellation or destruction of the will which effects its revocation may be the act of a third person as well as of the testator himself, provided, ordinarily, this is by the testator's direction and in his presence, and in some states the fact of destruction with the testator's consent must be proven by at least two witnesses.
58. Mundy v. Mundy, 15 N. J. Eq. 290; Hoitt v. Hoitt, 63 N. H. 475; Kent v. Mahaffey, 10 Ohic St. 204; Dclifieid v. Parish, 25 N. Y. 9. So in Doe d. Reed v. Harris, 6 Adol. & E. 209, it was decided that throwing the will on the fire, if it was snatched off by another person before more than the envelope was singed, did not constitute a revocation.
59. Trice v. Shipton, 113 Ky. 102, 101 Am. St. Rep. 351, 67 S. W. 377; Rise v. Fincher, 32 N.
C. 139, 51 Am. Dec. 204; Clingan v. Micheltree, 31 Pa. St. 25.
60. Doe d. Perkes v. Perkes, 3 Barn. & Aid. 489; Elms v. Kims. 1 Swab. & Tr. 155.
61. Bibb v. Thomas, 2 W. Bl. 1043; Sweet v. Sweet, 1 ftedf. Surr. (N. Y.) 451; White v. Casten, 46 N. C. 197, 59 Am Dec. 585; Lawyer v. Smith, 8 Mich. 411.
62. Gay v. Cay, 60 Iowa, 415, 46 Am. Rep. 78.

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