Cain: Politico Had No Documentation of Accusations

Maybe documentation is too specific of a word. Politico had no documentation AND no evidence whatsoever. The who, what, where, when and why of the story were entirely missing.

The burden is on the accuser to prove that the charges are true, not on the accused to prove a negative.

You asked about my feelings on the matter.. who do I believe? Until I see some real evidence, I believe that Cain is probably innocent of the charges, but there is currently no way for any of us to know. I do think it is suspicious that the accuser won't bring forth the agreement that she and her attorney signed.

In the end, I believed Clarence Thomas because not a one of the folks who knew both Thomas and Hill sided with her. And in the end, even if everything she said was true, what's the big deal? I have no patience for women who want to be equal to men in the workplace, but still want to be put on a pedestal. It drives me crazy.

Since I live in CA, my opinion on the election is pretty irrelevant. The candidate will be picked before we even vote, which is OK with me, since most of CA is pretty liberal.

For what it's worth:
1) I hate Romney
2) I don't care for Huntsman or Paul
3) I think a Cain/Gingrich ticket makes a lot of sense, but I could support any of the remaining candidates without reservation. My two cents.

Maybe documentation is too specific of a word. Politico had no documentation AND no evidence whatsoever.

Now you and I are getting closer to agreeing and its time to share a coffee. The headline of the post was 'documentation.' As an attorney (and I apologize to you; I apologize to myself daily), that word has a specific definition. Its use in the headline almost seemed intended to create an "A-AH!" in minds when lack of documentation is often meaningless.

And I wouldn't say Politico had no evidence. We don't know to whom Politico spoke. I'd say that chances are they had very shaky evidence, very thin evidence, and perhaps clearly unreliable evidence. Although we could be quite surprised. There's a tiny, tiny chance that the past President of the National Restaurant Association - a Marriott, if I believe, and Romney friend - was the original source of the "two women' story.

You said "The burden is on the accuser to prove that the charges are true, not on the accused to prove a negative." That's a standard in a court of law for *most" situations. It's not a standard for printing a news story (or a slur story). And even in court, there are some exceptions. In products liability action (and I need to simplify this so I don't write a book here) there is a doctrine of strict liability, and another doctrine in the law called res ipsa loquitur, "the thing speaks for itself", where the fact that something happened is evidence itself. At that point, you're stuck proving a negative.

So all along, I've been arguing not for or against Cain or any candidate on this post.

It all started with an innocent question - can somebody summarize? Because the headline was "no documentation." And the idea that 'no documentation' of that first claim was meaningful didn't seem to be meaningful.

UGH! No Coffee... now, if you wanted to share some Lupicia fine Japanese tea, I could go for that. :-)

You said "The burden is on the accuser to prove that the charges are true, not on the accused to prove a negative." That's a standard in a court of law for *most" situations. It's not a standard for printing a news story (or a slur story).

Of course, even though Cain is a public figure, Politico may still be open to being nailed for printing a story with reckless disregard for the truth.

With regard to the issue of documentation, I find it extremely suspicious that even after the NRA gave permission for the accuser to speak, she still did not produce the "agreement." What does that tell you? I suspect that there is stuff in that agreement that the accuser doesn't want publicized, so I do believe that the fact that the accusers didn't produce those documents to be significant.

It's also suspicious that the accusations have only come from those associated with the NRA (a very short time in Cain's career), and that they came out of Chicago. As you probably know, Obama twice was able to destroy opponents with scandal accusation. Perhaps the GOP establishment and the dems are working together. I have no idea, but, to date, there have been no developments that would lead me to definitively believe one party or the other. We simply don't have enough evidence.

Of course, even though Cain is a public figure, Politico may still be open to being nailed for printing a story with reckless disregard for the truth.

In practice, the "actual malice" is almost impossible to prove. If there were two settlements, we really start getting into an area of - where was the defamation?

With regard to the issue of documentation, I find it extremely suspicious that even after the NRA gave permission for the accuser to speak, she still did not produce the "agreement."

I haven't followed it closely. Did she refuse to give the NRA the right to release the agreement? I will say that long before Obama appeared on anyone's radar screen, I was naturally skeptical of anything that came out of Chicago, Memphis, or Little Rock.

And not Little Rock because of Clinton. Little Rock was the mob and gambling and corruption before Las Vegas existed. Memphis is still a place where I don't think I would trust a politician or a law enforcement agent. When it comes to Memphis in recent years, I have only two words: "Logan Young."

I don't believe in conspiracies, but I'm convinced that man was murdered. Although three days after he was murdered, the Memphis police decided that it was an accidental slip and fall against the bannister of his stairs that caused him initially to be "beaten beyond recognition."

I have no idea who Logan Young was. I presume some kind of a local story.

In practice, the "actual malice" is almost impossible to prove. If there were two settlements, we really start getting into an area of - where was the defamation?

You keep referring to it as a settlement. Cain made a big deal about it being an agreement. Do you see a difference? Also, until we see what the complaints were, how can we judge if there was anything to them? We will probably never know since it is common to pay people to just go away, whether the complaint is justified or not. I've seen it many times.

I haven't followed it closely. Did she refuse to give the NRA the right to release the agreement?

I have followed it reasonably closely. It is my understanding that her attorney hid behind the nondisclosure agreement. Then the NRA released her from the agreement, but she didn't disclose it. Neither did the NRA. Whether the NRA asked her to release them or not, I haven't heard. I suspect that the NRA would like to stay as far away from this as they can.

By the way, I'm sure you've heard the quip that the law is a game that lawyers play using other people's money to keep score. That's certainly been my experience, and a great deal of it was mine. :-/

I have no idea who Logan Young was. I presume some kind of a local story.

I had tossed in Memphis, Tennessee as an example of another historically corrupt city and Logan Young as one very minor possible example of corruption, and clearly not the best example of Memphis corruption. Was it a local story (I don't live in Memphis)? The concept of 'local' is always relative. Viewed in one perspective, Caylee Anthony was a local Orlando, Florida, story. Her disappearance and death, and her mother Casey's trial, were in Orlando.

You keep referring to it as a settlement. Cain made a big deal about it being an agreement. Do you see a difference?

No.

That's the magic of we lawyers. There's no law stating that when you settle a dispute you must call the resolution a "settlement." The resolution is whatever the parties agree it is.

In Chapter 6 of Lewis Carroll's classic, Through the Looking Glass, Alice confronts Humpty Dumpty about using the word "glory" to mean a "nice knock-down argument." In reply:

When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'

When resolving a dispute such as sexual harassment claim, the 'style' (title) of the document resolving the claims, and the description of any payment made in resolution means just what the parties choose them to mean, and the parties are master.

To make this generic, I'll refer to to Company and Employee (because that rolls off the tongue easier than Aggrieved Party), instead of National Restaurant Association and Cain Accuser.

Off the top of my head, I could style the resolution agreement: Agreement; Resolution; Resolution Agreement; Settlement; Settlement Agreement; Termination Agreement (if the Employee agreed to be terminated so she could receive unemployment); Severance Agreement (if the Employee agreed to leave employment with unemployment benefits); Declaration of Rights, Agreements, Covenants, Represents, and Warranties of the Parties; or Agreement Without Title. I could simply not give it a style (in which case people would probably call the agreement). To compound matters, if the agreement (and they're all agreements, even a settlement) provided for nondisclosure, modify the above styles, so that you have styles such as: Resolution and Nondisclosure Agreement; Resolution and Covenant of the Parties Not to Make Disclosures; Resolution and Agreement not to Disclose; and Resolution and Confidentiality Agreement; Resolution and Mutually Beneficial Binding Particulars With Respect to Confidentiality of Its Terms.

We attorneys are (and I say this with admiration and self-loathing) regular Humpty Dumptys.

Now, let's start our heads spinning. This agreement, whatever we may wish to call it, is to provide for a payment by Company to Employee (or maybe not, please follow me). Generally, the Employee is only concerned with receiving the money; if so, then the Employee does not care what the payment is called, and in what terms the payment is couched. It may be a settlement payment or a resolution payment. In most cases, however, the company wishes honestly to be able to say it never paid a settlement to Employee. Or honestly to be able to say in only paid x settlements. So, if the claim was never made public before it was paid, and the employee will no longer be working at the company, the money is paid as a severance payment or a termination payment.

Humpty Dumpty lives! The parties are the master, not the words.

I've seen on situation in which the payment is made to a charity, because the employee is more interested in making certain the employer 'feels the pain' than in receiving the money. And because the payment was a donation to a corporation that was exemption from Federal taxation under Section 501(c)(3) of the IRS Code, the corporation's payment was tax deductible and the employee had the leverage to make the company pay more in settlement.

But the agreement simply indicated that the Company agreed to make a charitable contribution to a specific charity; the Employee agree to a waiver and dismissal of all claims of (in my case, age discrimination) sexual discrimination (using appropriate legalese) arising from or related to her employment by Company during the period of her employment (notice that no particular offending executive is named, serving two purposes; first, it's additional blanket protection for the Company, and second, no executive's name appears); Employee's employment is terminated immediately; and nobody can disclose the terms except as required by law, or in testimony in court (many states have specific legal exceptions to nondisclosure terms in employment contexts). There's a lot of specific waivers under Federal laws, and legalese regarding COBRA, and everything is much more specific and tightly worded than I suggested. There are several pages of boilerplate provisions to address Federal and state employment issues.

The agreement may be styled "Confidential Agreement to Make Charitable Contribution."

Can you imagine how a Company executive who was the subject of a sexual harassment claim could play that in the press years later?

So, after FR's lengthiest lead-in, allow me to return to your question.

Cain made a big deal about it being an agreement. Do you see a difference?

No. As a former Cain supporter, that position either shows that Cain is naive or is playing word games in a style that rivals Bill Clinton. There. Is. No. Difference.