Burdens and Standards of Proof

My sister is a Democrat. The other day, the two of us were discussing the upcoming election and I told her I could not morally support either Trump or Clinton for president. There are many reasons why I cannot support either of them politically, but the moral question comes down to the integrity and competence of the candidates. Politi-fact has given Mr. Trump more "pants on fire" ratings in the run up to the RNC Convention than any other political figure since they started fact checking, he is defending three federal class-action fraud suits, including one involving the Racketeering and Corrupt Organisations statute, for fraud, and he displays symptoms of both a Narcissistic Personality Disorder and a Histrionic Personality Disorder.

Clinton, on the other hand, has been accused of compromising classified State Department information. Both the State Department IG and the FBI Director have said that she was extremely careless. The FBI Director has said there was classified information on Clinton's personal server, that the information reached the highest levels of classification, that it was classified when sent or received, and that there are indications that many thousand emails were deleted by her lawyers - who were not cleared for the information.

My sister's position is the Clinton has been accused, but nothing has ever been proven, so Hillary Clinton is still the best candidate. But is that really the case? This brings up the question of who has the burden of proof, and the question of what standard of proof applies to determining who to vote for. The same standards apply to all candidates.

Burden of Proof

In a court of law, the prosecutor has the burden of proving that the accused defendant is guilty. This is clearly the case in any criminal prosecution of Hillary Clinton, and it is also clearly the case in the three fraud suits against Donald Trump. 

But when it comes to a job interview, the burden of proving that a candidate is qualified for the job falls to the candidate. The hiring manager doesn't have to prove anything. The hiring manager looks at the candidate's resume, his or her history, and any other relevant information that applies to the candidate's ability to do the job. The hiring manager may have a list of "must have" criteria the candidate must satisfy, and there may also be a list of "can't have" items that will immediately disqualify a candidate.  If there is an obvious hole in the must have list or a significant entry on the can't have list, the resume goes into the trash heap before the candidate even gets and interview.

As voters, we are the hiring managers that get to choose who we hire as the next President of the United States of Americal. One the "must have" list is integrity, honesty, competence, and more. On the "can't have" list we can put a history of failed projects, gross negligence, disloyalty and other disqualifiers.

It is up to Donald Trump, HIllary Clinton, Jill Stein, and Gary Johnson to prove to us that they have the qualifications necessary for the job. Not only must each prove he or she has the qualifications, thye must show that their qualification is better than the other candidates. To me, the three fraud suits of Trumps and the gross negligence of Clinton in handling classified information are on the "can't have" list. They are both disqualified for the job.

Standard of Proof

But this isn't just a normal job interview situation. This is a political election, and as such it is - unfortunately - subject to mudslinging and calumny. My sister's position is that the allegations against Hillary are something the Republicans made up. Since there haven't been any criminal charges, the allegations are completely unfounded. Donald Trump, on the other hand, accused the Federal Judge presiding over two of the lawsuits he's facing of racial bias because the suits had not been decided on "summary judgment" in his (Trump's) favor. Do we simply ignore the allegations? Or is there another way to look at them that is relevant to the decision we make as voters?

In a criminal case, the prosecutor must not only prove his case, but he must prove it to the highest standard of proof: "Beyond a reasonable doubt and to a moral certainty." This level of proof must apply to each element of the case. For example, a state statute might list elements of burglary as: (1) Unauthorized entry (2) into a building or structure (3) with the intent to commit a crime. To convict someone of burglary, the prosecutor must prove each of the three elements to beyond a reasonable doubt. 

In a civil case, such a fraud, the standard of proof is less stringent. Depending on the nature of the case, the standard might be either "clear and convincing evidence" or "to a preponderance of the evidence." Again, each element of the alleged tort or wrong doing must be proven to the standard. Fraud, which typically includes the elements (1) giving false or misleading information (2) with the intent to deceive (3) which is believed and acted upon by the victim and (4) causes damage or loss to the victim (and possibly gain to the perpetrator). The standard of proof in fraud cases is "clear and convincing evidence." (If the fraud involves theft by false pretenses, it can be a criminal offense.) 

But what standard applies to an allegation relevant to a job applicant? There are three allegations we need to consider here: 1. Did Hillary Clinton compromise classified national security information through the careless (grossly negligent) use of a personal email server, and if so, does it disqualify her for the job of President; 2. Did Donald Trump commit civil or criminal fraud in connection with any or all of the three Federal class action suits against him, and if so, does that disqualify him for the job of President? and 3.) Are the allegations against Hillary Clinton a smear campaign, and if so, is this relevant to choosing the next president? 

Hillary Clinton's supporters bear the burden of proving the third allegation. They must also prove its relevance. If they can show that the Republicans made the allegations from whole cloth with no substance, then the question is relevant. But that doesn't appear to be the case. If the Republicans are merely using the facts of Clinton's conduct as a political weapon, and there is truth to the allegations, then there is no relevance to the allegation of a Republican smear campaign. We must decide based on the answer to the first question. At best, this is a very weak defense. 

But what standard to apply to the other two questions? 

First, in our list of candidates for the job, is there another candidate that does not have these liabilities and is otherwise qualified for the job? If there is, then the standard of proof is very low. We actually don't need to address either question unless there is some overriding qualification that one of the two candidates possesses that overcomes all of the qualifications of the third candidate and the liability together. So, unless the third candidate is otherwise disqualified or ruled out, then there isn't really a reason to even consider Trump of Clinton. As hiring managers - voters - we need to ask ourselves if Gary Johnson or Jill Stein possess enough qualification to make it unnecessary to consider Trump of Clinton.

I personally think this is the case with Gary Johnson, but for the sake of this article lets continue the discussion, For those of you that think either Trump of Clinton have overriding qualifications that would make either the right choice if the allegations against them are not true, what standard of evidence do we employ? More importantly, has that standard of evidence been met?

To me, the standard is "preponderance of the evidence," but lets consider it to be "clear and convincing evidence." 

Is there clear and convincing evidence that Donald Trump and his Trump University committed fraud? Or should the question be, "is Donald Trump honest enough that we can trust him with the safety and security of the United States?"  What is the evidence:

• There are 2 federal and one state class action lawsuits alleging fraud currently in litigation. (source: Low, et al. v Trump University; Cohen v. Donald J Trump; New York v Trump Entrepreneur Initiative LLC) 
• The facts alleged in the complaints in all three of these suits are straight forward and can be easily verified as true
• The third case was decided against Trump and is now in appeals (New York Court of Appeals 3/1/2016, rejecting Trump's statute of limitations claim)
• The judge in the other have found that there are triable issues of fact in these cases, and have denied summary judgment.
• The State of New York required Trump University to change its name as it didn't qualify to call itself a "university." (source: New York State Dept of Ed, Letter to Donald Trump 5/27/2005, etc.)
• "During the period when Trump University appeared to be active in the marketplace, BBB received multiple customer complaints about this business. These complaints affected the Trump University BBB rating, which was as low as D- in 2010." (Source Better Business Bureau of New York) 
• Trump has the highest number of blatantly false campaign statements (30) of any candidate since Politifact started fact checking.  (source Politifact)

Only a jury, after seeing all of the evidence and hearing all of the testimony can determine if the evidence is clear and convincing on all of the legal elements of fraud, but we can - and we must - examine the evidence of whether Trump is honest enough to be President. 

Each voter will have to make his own decision about this, and about all of the other claims Trump has made. To me, the evidence is overwhelming that he is not honest enough to be the most powerful man in the world. 

But what about Clinton? Clinton is accused of compromising highly classified information by using a personal email server. That she used such a server is fairly well proven. Both the State Department Inspector General and the FBI investigation revealed that there were in fact highly classified emails sent and received on that server. Almost every one of Clinton's claims - not marked classified when sent, classified after the fact, no classified emails, etc., have been shown by the FBI investigation to be false. The FBI's investigation also shows that there is reason to believe - or at least suspect - that there were other emails that were deleted and non-recoverable by the FBI's forensics team, that Clinton allowed her lawyers (who were not cleared for the information) to delete. 

We've already discussed the standard of proof necessary for a criminal prosecution. I won't second guess Director Comey here. The argument that other former Secretaries of State used private email servers, etc. is irrelevant. None of them are running for president. 

Another defense that Clinton's supporters like to present is denial that the compromised information amounts to anything to worry about; that it was "over classified." We do not -- and should not -- know what information was compromised, nor do we know the extent of its disclosure. The kind of information that may have been compromised could put the lives of intelligence assets at risk, could disclose military vulnerabilities, or derail diplomatic initiatives. It could even start a war under the right set of bad circumstances. Trivializing the extent of the potential damage - especially when almost every claim Mrs. Clinton has made has been proven false - is dangerous. 

Director Comey's decision not to pursue criminal charges may be either an indication that he feels the evidence doesn't reach the reasonable doubt standard, or it may be the result of a political deal. (The "chance" meeting of Attorney General Lynch and Mrs, Clinton's husband in Phoenix certainly is cause to suspect a political deal.)  Comey's reasoning that there was no evidence of "intent" to harm the United States is also a bit suspicious in that there is no intent element, merely that Clinton was grossly negligent. In any case, the question will not be put to a jury.

To answer our first question, " Did Hillary Clinton compromise classified national security information through the careless (grossly negligent) use of a personal email server, and if so, does it disqualify her for the job of President?" to the "clear and convincing evidence" standard. The evidence is clear and convincing that Clinton compromised State Department classified information. If she were to be tried and convicted on the possible criminal charge, the conviction was cause her to forfeit any government office and would bar her from holding any future office - it would disqualify her from all federal government offices requiring a security clearance. Here too, each voter will have to make their own decision, but because of the significance of the great risk involved, in my opinion, Clinton's actions disqualify her from holding the office of President. 

For that reason, I cannot morally vote for either Trump or Clinton. This is a case where the lesser evil is unacceptable. Even if we could come up with a way to define which is the lesser. 

The Third Choice

Fortunately, Trump and Clinton are not the only choices. Governor Johnson is fully qualified for the office of President of the United States. In fact, Gary Johnson and his running mate Bill Weld have more experience in government that either Trump of Clinton.

If we truly want to save the United States, and possibly the entire world, then not only is it our moral duty to not vote for Trump or Clinton, but to vote for Johnson. And it is our moral duty to convince our neighbors to do the same.