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The decision not to charge Hillary Clinton for her "extremely careless" handling of classified information is opening a new line of defense for others who stand accused of similar misdeeds.
Mark Zaid, a defense attorney for national security whistleblowers and people accused of mishandling secrets, says he plans to ask for "the Clinton deal" in the future.
And Zaid says he probably can get it.
In 2015, shortly after former CIA Director David Petraeus received a plea deal featuring probation and a fine for sharing highly classified information with his mistress Paula Broadwell, Zaid says he called the Justice Department on behalf of a client accused of taking classified records home.
"We absolutely got on the phone to the prosecutor and said, 'We want the Petraeus sentence. We want the commensurate, parallel sentence.' And we got it!" he says, winning a $5,000 fine and a short probation term instead of possible prison for a now-retired intelligence agency employee.
It's hard to see how this decision makes America safer, and it certainly undermines the rule of law.
Rep. Darrell Issa, the California Republican who is the former chairman of the House Oversight Committee, cited the case of Navy Petty Officer 1st Class Kristian Saucier, who pleaded guilty last week to possession and retention of national security information for taking cellphone photos inside the classified engine room of a nuclear submarine where he worked as a mechanic.
"That person's been prosecuted and he will get five or six years and a dishonorable discharge," Issa told CNN. "There is a double standard."
FBI Director James Comey recommends no charges for Hillary Clinton. She exposed highly classified data to "hostile actors", but there's no "direct evidence" that her servers were hacked -- and none would be expected. Thousands of work-related emails were recovered that weren't turned over in 2014. Hillary was "extremely careless" with highly classified information, but the evidence doesn't show that she was intentionally trying to damage the United States. She broke the law, but "no reasonable prosecutor" would bring a case against her.
Comey seems like an honorable man, and this conclusion seems reasonable to me, even though Comey is clear that there was plenty of evidence to support criminal charges. I don't understand the reasoning for not recommending charges, but it seems that Comey suggests that administrative penalties would be more appropriate. (Of course, no such administrative penalties are now possible.)
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.
Despite the lack of criminal charges, I hope that the American public imposes political consequences on Hillary for her reckless behavior. From a political perspective, Comey's statement was probably the best possible outcome for Trump. Video of the FBI director calling Hillary "extremely careless" is powerful stuff.
My opinion is that the people who are lamenting this result are missing the subtlety of Comey's statement and decision: Hillary has been convicted as dishonorable, dishonest, and careless without the need for a trial. No endless motions, no delays, no jury tampering, no arcane court rules, no backroom deals, no plea bargain. If America wants to elect an incompetent, lying crook, then no indictment will prevent it.
Reason does a super-cut, interposing Comey and Clinton.
I have great respect for the FBI and confidence in their capability -- but they need to wrap up their Clinton investigation soon. I realize that the FBI shouldn't be guided by political concerns... but... but... please finish.
"I hope that this is close to being wrapped up," Clinton said on CBS's "Face the Nation" in May.
But nearly two months later, there have been no reports that an interview with the former top diplomat has taken place.
"I, like other people, am a bit surprised that it hasn't come to a resolution yet," said Douglas Cox, a professor at the City of New York School of Law.
He added that within Clinton's campaign, "I would think internally that there would have to be a little bit of concern."
Like many laws, the Texas regulations on abortion providers were intended to do accomplish something other than their ostensible purpose -- leading the SCOTUS to strike the regulations down.
The justices voted 5-3 in favor of Texas clinics that had argued the regulations were only a veiled attempt to make it harder for women to get abortions in the nation's second-most populous state.
Justice Stephen Breyer's majority opinion for the court held that the regulations are medically unnecessary and unconstitutionally limit a woman's right to an abortion.
Texas had argued that its 2013 law and subsequent regulations were needed to protect women's health. The rules required doctors who perform abortions to have admitting privileges at nearby hospitals and forced clinics to meet hospital-like standards for outpatient surgery.
Breyer wrote that "the surgical-center requirement, like the admitting privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions and constitutes an 'undue burden' on their constitutional right to do so."
There you have it, ladies and gentlemen. The regulatory state should tremble in fear. There is now "no reason to believe" that additional regulations would affect wrongdoers. That means that regulations may not even be able to escape the lowest level of judicial scrutiny -- rational-basis review.
Environmentalists are quaking in their boots. Gun controllers are throwing their hands up in despair.
Financial and business regulators may as well close up shop. Wait. What's that you say? This is an abortion decision? The regulations in questions were deemed responsible for closing substandard abortion clinics?
Never mind. The regulatory state is safe. Everyone knows that the Supreme Court privileges the killing of children above all else. After all, as Justice Ginsburg has said, Roe v. Wade was motivated by "concern about population growth and particularly growth in populations that we don't want to have too many of." The undesired have to die -- the reasoning matters not.
Devin Watkins says that Karl Racine, the Washington, D.C., attorney general, has instructed police officers not to issue concealed carry permits, in violation of a court order. But don't these police officers have individual liability for refusing to follow a court order? Can't they be sued for civil rights infringement, regardless of what the attorney general says? Or does the instruction from the attorney general somehow insulate the police from liability?
After the order, I went to apply for a concealed-carry permit in the District of Columbia. The police officers there told me the D.C. attorney general's office had ordered them to ignore the court order and continue to deny applications. Thinking there might be some kind of mistake, I contacted the AG's office, which explicitly told me if I had a complaint about what they did I could file that complaint online.
said Justin Shur, the former deputy chief of the Justice Department's public integrity section.
"Regardless of whether the charging decision is supported by the facts and the law, there's always someone who will suggest there was a political agenda behind it."
Maybe this wouldn't be true if the bureaucracy hadn't been so politicized during the Obama administration?
Is it too much to ask that the law simply be applied as written, without regard for the political power of the person being investigated?
Republican former Speaker of the House Dennis Hastert has been sentenced to 15 months in prison for "structuring" bank withdrawals to avoid notice by authorities.
Prosecutors say he so badly wanted to hide his past sexual misconduct, he agreed to pay a former student $3.5 million in hush money. Hastert pleaded guilty last fall to withdrawing $952,000 from the bank in increments crafted to avoid notice, in violation of banking laws. Prosecutors say when FBI investigators approached Hastert, he said he was being falsely extorted and even agreed to record a phone conversation with the individual.
"Structuring" shouldn't be a crime at all -- it's illegal to move money around for illegal purposes, and "structuring" makes it illegal to shape your transactions to avoid scrutiny. That's absurd. It's like a law against adhering to speed limit signs because that makes it harder for the police to give you a ticket for speeding.
Anyway, Hastert was guilty of some pretty reprehensible behavior. Not only did he molest a bunch of students when he worked as a wrestling coach, but he falsely told the FBI that one of his victims was extorting him.
[Judge] Durkin called it "deplorable" that Hastert lied to the FBI during an initial investigation. He also said it was "unconscionable" that Hastert initially accused Individual A of extortion, leading the FBI to begin investigating the victim.
"You set him up," Durkin told Hastert.
Hastert was one of the most politically connected people in the country, and he intentionally aimed the FBI at his abuse victim. Awful.
Still to be explained: how did Hastert get millions of dollars?
I agree with law professor Glenn Reynolds: it's bad that American is entirely dominated by lawyers. Put some non-lawyers on the Supreme Court.
But law is supposed to govern everyone's actions, and everyone is supposed to understand it. ("Ignorance of the law," as we are often told, "is no excuse.") But when the Supreme Court is composed of narrowly specialized former judges from elite schools, the likelihood that the law will be comprehensible to ordinary people and non-lawyers seems pretty small. (In addition, a recent book by my University of Tennessee colleague Ben Barton makes a pretty strong case that lawyer-judges systematically favor the sort of legal complexity that, shockingly, makes lawyers rich. He, too, recommends non-lawyer judges, which, as he notes, are common in other nations and were common in colonial America.)
The Supreme Court is one-third of the federal government, and the other two branches, Congress and the presidency, are already dominated by lawyers. But there are hundreds of millions of Americans who aren't lawyers, and surely some of them are smart enough to decide important questions, given that the Constitution and laws are aimed at all of us. Shouldn't we open the court up to a little diversity?
Good for Apple CEO Tim Cook for refusing the order to decrypt an iPhone.
Apple said on Wednesday that it would oppose and challenge a federal court order to help the F.B.I. unlock an iPhone used by one of the two attackers who killed 14 people in San Bernardino, Calif., in December.
On Tuesday, in a significant victory for the government, Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California ordered Apple to bypass security functions on an iPhone 5c used by Syed Rizwan Farook, who was killed by the police along with his wife, Tashfeen Malik, after they attacked Mr. Farook's co-workers at a holiday gathering.
Judge Pym ordered Apple to build special software that would essentially act as a skeleton key capable of unlocking the phone.
But hours later, in a statement by its chief executive, Timothy D. Cook, Apple announced its refusal to comply. The move sets up a legal showdown between the company, which says it is eager to protect the privacy of its customers, and the law enforcement authorities, who say that new encryption technologies hamper their ability to prevent and solve crime.
There's no end to this rabbit hole once it gets opened. American citizens have a right to privacy, and a right to strong encryption.
According to the FBI, St. Louis is the most violent city in America. Great job!
A list of the most violent cities in each state has been released, with St. Louis, Missouri taking the top spot.
Compiled from data released by the FBI charting crime in the first six months of 2015, the 'Gateway City' is followed by Memphis, Tennessee, Detroit, Michigan, Birmingham, Alabama, and Rockford, Illinois, to round out the top five.
The violent crimes listed by the FBI include rape, robbery, aggravated assault, and murder. ...
While people may question whether St Louis' crime rates have been influenced by the turmoil after a white police officer shot and killed unarmed black teenager Michael Brown in August 2014, Richard Rosenfeld, a professor of criminology at the University of Missouri-St Louis debunked the idea.
He told Forbes: 'Homicides were going up in 2014 quite a bit before Michael Brown was killed in Ferguson. So it's hard to attribute it to a so-called Ferguson effect because we began to see those increases before August 9.'
Rosenfeld also pointed out that the figures do not track drug use or the crimes committed in subsequent turf wars.
As Ed Driscoll points out, there may be a pattern. St. Louis City has been exclusively electing Democrats for 73 years.
Former prosecutor Andrew McCarthy has two must-read pieces that describe some of the internal workings of the Department of Justice and explain what is likely going on with the investigation of Hillary Clinton's handling of classified information. The first piece explains why Hillary is not a "subject" or "target" of the investigation.
First, there is one other thing you should know about the designations "target" and "subject" -- one of those things so obvious it is easy to miss. These are not just random words. They indicate that a suspect is a target or a subject of something.
That something is a grand-jury investigation.
In an ordinary case, that would not be a point worth making. The FBI routinely conducts major investigations in collaboration with Justice Department prosecutors -- usually from the U.S. attorney's office in the district where potential crimes occurred. That is because the FBI needs the assistance of a grand jury. The FBI does not have authority even to issue subpoenas, let alone to charge someone with a crime. Only federal prosecutors may issue subpoenas, on the lawful authority of the grand jury. Only prosecutors are empowered to present evidence or propose charges to the grand jury. And the Constitution vests only the grand jury with authority to indict -- the formal accusation of a crime. In our system, the FBI can do none of these things.
The second piece claims that emails between Hillary and President Obama are enough evidence to convict Hillary. This is exactly the crime that General Petraeus was prosecuted for.
If the administration is refusing to disclose the Obama-Clinton e-mails because they involved the secretary of state providing advice and counsel to the president, do you think those exchanges just might touch on foreign-government information, foreign relations, or foreign activities of the United States -- deliberations on which are presumed classified?
Will anyone in the press corps covering the White House and the State Department ask administration officials whether this is the case?
I believe some, if not all, of the communications between Obama and Clinton should be classified. To classify them now, however, would imply wrongdoing on both their parts since they knew they were communicating via private, unsecured e-mail. Essentially, Obama is invoking executive privilege because the effect of doing so -- viz., non-disclosure of the e-mails -- is the same as the effect of classifying them would be . . . but without the embarrassment that classifying them would entail.
Of course, Petraeus did not get executive-privilege treatment. His communications with Obama were deemed classified and he was prosecuted for failing to safeguard them.
Obviously the corruption goes to the top. Seems ripe for a Constitutional crisis.
It seems that Hillary Clinton's team intentionally ignored security markings on highly sensitive information.
The FBI is investigating whether members of Hillary Clinton's inner circle "cut and pasted" material from the government's classified network so that it could be sent to her private email address, former State Department security officials say.
Clinton and her top aides had access to a Pentagon-run classified network that goes up to the Secret level, as well as a separate system used for Top Secret communications.
The two systems -- the Secret Internet Protocol Router Network (SIPRNet) and the Joint Worldwide Intelligence Communications System (JWICS) -- are not connected to the unclassified system, known as the Non-Classified Internet Protocol Router Network (NIPRNet). You cannot email from one system to the other, though you can use NIPRNet to send emails outside the government.
Somehow, highly classified information from SIPRNet, as well as even the super-secure JWICS, jumped from those closed systems to the open system and turned up in at least 1,340 of Clinton's home emails -- including several the CIA earlier this month flagged as containing ultra-secret Sensitive Compartmented Information and Special Access Programs, a subset of SCI.
A Republican-appointed former US Attorney describes what he thinks -- or has heard? -- is going on inside the FBI's investigation of Hillary's secret email server. All speculative and possibly biased, but still interesting to ponder.
But [Joe DiGenova, a Republican U.S. attorney appointed by President Reagan] warned the decision to charge Clinton personally with a crime lies with Attorney General Loretta Lynch, putting the Obama administration in a difficult political position.
"I believe that the evidence that the FBI is compiling will be so compelling that, unless [Lynch] agrees to the charges, there will be a massive revolt inside the FBI, which she will not be able to survive as an attorney general. It will be like Watergate. It will be unbelievable," DiGenova said.
"The evidence against the Clinton staff and the secretary is so overwhelming at this point that if, in fact, she chooses not to charge Hillary, they will never be able to charge another federal employee with the negligent handling of classified information," he added. "The intelligence community will not stand for that. They will fight for indictment and they are already in the process of gearing themselves to basically revolt if she refuses to bring charges."
It's easy to be cynical and brush off the FBI's investigation of Hillary and her cronies -- it's a Democrat administration, so of course there won't be any charges. But all the leaks and chatter from inside the FBI that I've read about indicates that the FBI is taking the investigation seriously. The Justice Department lawyers may ultimately refuse to prosecute, but despite my own cynicism I actually have confidence in the FBI.
Fox News is told agents are looking at U.S. Code 18, Section 1001, which pertains to "materially false" statements given either in writing, orally or through a third party. Violations also include pressuring a third party to conspire in a cover-up. Each felony violation is subject to five years in prison.
This phase represents an expansion of the FBI probe, which is also exploring potential violations of an Espionage Act provision relating to "gross negligence" in the handling of national defense information.
"The agents involved are under a lot of pressure and are busting a--," an intelligence source, who was not authorized to speak on the record, told Fox News.
Maybe I'm naive, but I sincerely hope that our government is capable of carrying out an apolitical investigation of a top official.
Sidney Powell attempts to catalog Hillary's countless crimes, and there are so many it's hard to keep track. He calls for a special prosecutor, but is that really necessary? I won't be surprised if the Obama Justice Department is eager enough to take her down. From what I've seen so far the DoJ has been moving cautiously but steadily forward in their investigation of Hillary. The caution is appropriate -- a slip up in the highest possible profile case would be humiliating. There's plenty of time to sort things out before the election.
If Hillary and her cabal don't end up in jail (or with a presidential pardon) it will be a national embarrassment.
While the FBI and Department of Justice have willfully ignored Hillary Clinton's outrageous conduct, they didn't hesitate a minute to investigate and prosecute former CIA Director and national hero, General Petraeus. He was just tarred, feathered and ridden out of the CIA on a rail for sharing some information (his own notebook) with his biographer who was both in the military and had a top secret clearance. Yet, Petraeus did not have a secret server set up to house his classified and top secret information or digital satellite imagery; he destroyed nothing; and, there was no "leak." But that's not all.
During the same years that Hillary was communicating about national security and world affairs off the grid, the Department of Justice has had no qualms threatening news reporters and prosecuting whistleblowers under the Espionage Act. To hell with the First Amendment and Supreme Court precedent, even the New York Times reported that this administration prosecuted more reporters and whistleblowers for "espionage" than all prior administrations put together.
The inspector general investigation into Hillary's use of a private email server for top secret communications has expanded to her top aides, and Hillary is no doubt looking among them for a scapegoat with enough importance to distract the public from her misdeeds. Who will be sacrificed so that Hillary can go free?
As pressure builds on Hillary Clinton to explain her official use of personal email while serving as secretary of state, she faced new complications Tuesday. It was disclosed her top aides are being drawn into a burgeoning federal inquiry and that two emails on her private account have been classified as "Top Secret." ...
At least four top aides have turned over records, including copies of work emails on personal accounts, to the State Department, which is collecting them in response to a subpoena from Capitol Hill, according to the department. Lawmakers have demanded records, including personal emails, from six other aides, but it's unknown whether they used personal email for work.
And now Hillary has decided she has no choice but to surrender her email server to investigators. A proper forensics investigation will help us understand the use, configuration, and breaches that occurred on the server over the past six years, but it will also be interesting to see what is discovered about about the cover-up that's been going on for the past few months.
Hillary Rodham Clinton's presidential campaign casts her decision to turn over her personal email server to the Justice Department as cooperating with investigators. Her Republican critics suggest that the move and new revelations about classified information points to her malfeasance as secretary of state. ...
Federal investigators have begun looking into the security of Clintons' email setup amid concerns from the inspector general for the intelligence community that classified information may have passed through the system. There is no evidence she used encryption to prevent prying eyes from accessing the emails or her personal server.
Hillary Clinton's handling of classified material is worse than the behavior that led David Petraeus to plead guilty to a criminal charge last year. General Petraeus is a generally honorable man who made some very bad decisions that cost him (and our country) dearly. Hopefully Hillary will act as honorably and plead guilty when she is charged.
The inspector general for the government's intelligence community, I. Charles McCullough III, has found that some of the 30,000 Clinton e-mails turned over to the State Department contain classified material. Taking a random sample of 40 e-mails, he found four with classified information -- material that was classified at the time it was sent and that was extremely vulnerable to hackers and foreign intelligence agencies. A fifth e-mail concerning the 2012 Benghazi attack that left an ambassador and three other Americans dead is already public and appears to have contained classified information. In all likelihood, there are many more.
Not so long ago, the government took that sort of thing seriously. The U.S. Criminal Code states, with regard to documents or materials containing classified information: "It is a crime to knowingly remove such documents without authority and with the intent to retain such documents or materials at an unauthorized location." David Petraeus, the former CIA director and Army general, pled guilty just this year to mishandling classified information after storing sensitive CIA data in an unlocked desk drawer at his home in Arlington, Va. If a desk in a house in Virginia is an unauthorized location, a server in a house in Hillary Clinton's New York home is one, too.
Charles Murray has a novel suggestion for overcoming the suffocating rules our American bureaucracy foists on us free citizens: insure yourself against penalties and ignore the absurd regulations. I'd really like to read an analysis by an expert on insurance and insurance law who can tell us if this proposal is plausible.
Seen in this perspective, the regulatory state is the Wizard of Oz: fearsome when its booming voice is directed against any single target but, when the curtain is pulled aside, revealed as impotent to enforce its thousands of rules against widespread refusal to comply.
And so my modest proposal: Let's withhold that compliance through systematic civil disobedience. Not for all regulations, but for the pointless, stupid and tyrannical ones. ...
The risk in doing so, of course, is that one of the 70-odd regulatory agencies will find out what you're doing and come after you. But there's a way around that as well: Let's treat government as an insurable hazard, like tornadoes.
People don't build tornado-proof houses; they buy house insurance. In the case of the regulatory state, let's buy insurance that reimburses us for any fine that the government levies and that automatically triggers a proactive, tenacious legal defense against the government's allegation even if--and this is crucial--we are technically guilty.
Why litigate an allegation even if we are technically guilty? To create a disincentive for overzealous regulators. The goal is to empower citizens to say, "If you come after me, it's going to cost your office a lot of time and trouble, and probably some bad publicity." If even one citizen says that, in a case where the violation didn't harm anything or anyone, the bureaucrat has to ask, "Do I really want to take this on?" If it's the 10th citizen in the past month who says it and the office is struggling with a backlog of cases, it's unlikely that the bureaucrat's supervisor will even permit him take it on.
It's whack-a-mole, but the government doesn't have enough hammers to hit all of us.
More from Michael Barone.
Jonathan Adler is mostly right but ultimately wrong in his argument that the federal government lacks the power to regulate abortion, and that such power is reserved for the states. However, he seems to slide past the most powerful and obvious counter-argument: the Supreme Court has injected itself into the issue (and it's part of the federal government).
(Obviously I'm not a lawyer, but I believe that abortion is a moral and political question, not primarily a legal one. I'm not trying to create an air-tight legal position that supports any specific abortion restrictions.)
Relevant legal questions -- how to define murder, when to excuse the taking of life as defensible or otherwise permissible, even defining what constitutes the end-of-life for medical and other purposes -- have always been matters of state law. Drawing such lines necessarily involves drawing distinctions that will please some and offend others, but that hardly creates an equal protection problem, let alone justify federal legislation. Again, where protected classes are not involved, a state's decision to draw different distinctions than would the federal government, even on matters involving life and death, is insufficient to justify a federal law.
Note there the invocation of "protected classes" -- who decides what the protected classes are? Can't Congress? Of course it can; Congress (with sign-off from the President) can decide that unborn babies are a protected class. Most of the protected classes were created by the Civil Rights Act of 1964, which was was passed by Congress and signed by President Johnson.
Glenn Reynolds also argues that Republicans should oppose abortion legislation because they support limited government. I respect the Instapundit a lot, but I think he misses the same element that Mr. Adler did.
One such conflict is likely to appear this week, when the House is expected to vote on a 20-week limit on abortions. Such a limit polls well-- Americans are much more supportive of early abortionsthan late-term abortions -- and would still leave the United States with more-liberal abortion laws than nearly all of Europe. Even so, the Republicans need to be asking themselves -- and the Democrats need to be asking them, too -- where, exactly, Congress gets the power to limit abortions to 20 weeks?
Where did the Supreme Court get the power to enable abortions? Article 3, Section 2 of the Constitution says that Congress may limit the jurisdiction of the Supreme Court (except for "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party"). So clearly Congress could remove abortion from the jurisdiction of the Supreme Court if it wanted to. That's de facto power to regulate abortion without interference from the courts, if Congress chose to exercise it.
As I wrote at the top, I'm not skilled enough to make an air-tight legal argument. But I know that if the law allows the slaughter of millions of babies every year then the law is wrong.
It bears repeating: never consent to a search. If the authorities have a legitimate cause to search you they won't need to ask first. If they ask, always say no. Then ask if you're under arrest, and if not then walk away. Don't say anything else.
In a cold consent encounter, a person is stopped if an agent thinks that person's behavior fits a drug courier profile. Or an agent can stop a person cold "based on no particular behavior," according to the Inspector General report. The agent then asks people they have stopped for consent to question them and sometimes to search their possessions as well. By gaining consent, law enforcement officers can bypass the need for a warrant. ...
Moreover, agents can seize cash they find during a cold consent encounter. According to data analysis conducted by the Institute for Justice, half of all DEA cash seizures from 2009 to 2013 were under $10,000. Thanks to civil forfeiture laws, law enforcement can take cash and other valuable property, based on an officer's often subjective determination of probable cause, even from those who have not been charged with a crime. ...
Disturbingly, the Inspector General found that DEA interdiction task force groups have been seizing cash from travelers and then urging them to sign forms disclaiming their own cash and "waiving their rights." In one cold consent encounter, DEA agents stopped another African-American woman in part because she was "pacing nervously" before boarding her flight. After gaining her consent, the agents searched her luggage and found $8,000.
A drug dog then alerted to the cash, and the DEA seized it. However, the Inspector General report did not state if any drugs were actually found or if the woman was ever charged with or convicted of a crime in connection with the seizure. Not to mention that most U.S. currency in circulation has been exposed to drugs.
(HT: Simple Justice.)