Monday, October 31, 2016

Equity as the unsung half of justice. James Comey FBI. Suspend directorship.

Update April 2017. Equity in justice. Now, as a practical matter, let Comey finish.

1. What else to do, with ongoing investigations under his directorship. James Comer:  guilty of violations of equity in laches and estoppel. He slept on his rights, and is now estopped from changing the finality of his prior position without material in hand to justify. That argument persuaded noone. So, let him finish but watch.

2. Remedy -- in Equity: Suspend Comer's employment for his triggering unacceptable conditions of unfair exploitation of voters, pending the meeting of conditions to be set by the court.



1.  Overview.

James Comey, Director of the FBI,  is not unsung himself; he has a big resume. And he has just stomped into the hornet's nest of an election with his October 28 Friday Night News Dump (do a search) Some sites already are touting the propriety of his acts according to "law", see https://newrepublic.com/article/138247/james-comey-can-clean-mess-made-hillary-clintons-emails.  That view is truncated and wrong.  It ignores the second half of the law:  equity.  Mere law is not justice.  Yet, that avoidance of an equity analysis in justice is understandable because the US merged the two sides of justice some time ago, see Equity Jurisdiction in the Federal Courts.


Law and equity: both factor into justice. Here, New Egg statute, always changing; and Old Egg equity, principles speaking through centuries in the West. 

2.  What, in equity, did James Comey do wrong, requiring consequence? See  https://www.scribd.com/document/293299051/20-Maxims-of-Equity


a.  Laches.  Sleeping on one's rights until such time has passed as prejudice the other side inequitably. see http://legal-dictionary.thefreedictionary.com/laches. Undue delay in communicating with staff to find out current issues, failure to direct as director, and undue delay in bringing issue to attention of third parties (if indeed those third parties had any interest before 2, below).   Undue delay in even getting a warrant to find out information. 

b.  Estoppel -- The mouth is stopped. Change of mind from earlier binding statements and acts and without presentation of such new specific material as justify a reopening of an issue to change its result.  Director is estopped from altering a prior relied-upon pronouncement unless he has in hand such evidence obtained in a timely way (ASAP)  as justifies a different result.  He failed to get that information in a timely way, is estopped from changing his position or bringing in third parties until he has that in hand.  See http://legal-dictionary.thefreedictionary.com/estoppel

3.  Discussion


a. Result:  Extreme prejudice to individuals, including a presidential candidate and her staff, and voters.

How did equity get so shunted aside that Director Comey's acts could even have been conceivable by his legal team?
  • The idea was that after merging law and equity in courts, equity would still have a role:  its emphasis on context and fairness would be applied where the law is 
    • a) inadequate to provide justice, and 
    • b) shocks the conscience. 
  • Where law is inadequate and there has been such unfairness as shocks the conscience, then, go to equity for balance.  

Law and Equity: Into the fog. Watch law shove equity to the caboose.

b.  Double check the legal rights here. Analysis:

Was Comey authorized to release his own letter to whomever he chose?  Probably. 2008 Attorney General's Guidelines for FBI Investigations, see  Cornell Law Review vol 69, Issue 4, 1984

See also https://www.justice.gov/archive/opa/docs/guidelines.pdf at p. 44, Para N: -- signed by Attorney General Mukasey in 2008"

"SENSITIVE INVESTIGATIVE MATTER: an investigative matter involving the activities of a domestic public official or political candidate (involving corruption or a threat to the national security), religious or political organization or individual prominent in such an organization, or news media, or any other matter which, in the judgment of the official authorizing an investigation, should be brought to the attention of FBI Headquarters and other Department of Justice officials." 

Even legal acts, however, can be rendered culpable by the means in which they were executed.  See the Hatch Act, limiting acts of government employees in the political sphere, or likely to affect that sphere in a partisan way, see https://osc.gov/pages/hatchact.aspx;  and policies at https://osc.gov/Pages/HatchAct-PoliciesProcedures.aspx

Can equity step in if the inquiry against Comer (a Hatch Act complaint has been filed, do a search) looks like it will stop at the legal question:  did he have the right to write that letter? Yes, in a limited legal way; but it will take some rebuilding of education as the structures of equity to make the principles work to remedy the wrong the law leaves.


c. Steps. Examine Equitable Principles in more depth.  See https://www.law.cornell.edu/wex/equity

What did James Comey do wrong, if it is legal for him to write letters. Estoppel and laches, see above, first come to mind. Then comes dereliction of duty to his own staff: if he did not know of the emails three weeks ago, why not.

Equity down the drain if this issue rests only on legal right to write letters.


d.  Additional equitable maxim 2016 to be considered.

A population shall not be gassed up by demagogues with inadequate analyses of the problems they face as voters. 


Conclusion:

Whether a government servant's acts are culpable, requiring a consequence imposed, usually stops at legality. Was the act within the parameters of a mandate. has been eclipsed in the United States by the focus on law.

Whether an act was legal, within the statutory mandate, too often ends the discussion and leaves wrongs unrighted. A literal finding of yes, this is allowed legally fair, must be balanced with examination of the manner, so there is not unfair exploitation  a) of the less educated, less able to vet issues,  and  b) of the educated who are under such time constraints to make a case in time for election, that the timing of bombshells shocks the conscience.

Suspend Comer.  

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