Your Work Product Isn’t Yours

My older brother is a genius. No hyperbole, a legit genius. During the time he was working for Hewlett-Packard, eventually ending up as the head of one of Hewlett-Packard’s two research labs, he made a number of discoveries and advances which were patented.

However, none of the patents were in his name. Instead, because they were part of what is called his “work product”, they belonged to his employer. His patents were done in the normal course of Hewlett-Packard’s business, created on company time by a company employee using company computers and resources, so guess what?

They belonged to Hewlett-Packard, not to my brother.

This is pretty much standard in the world of business and government. The work you do on your employer’s time in the course of doing your employers business and typically using your employer’s offices, cars, computers and the like is called your “work product”, and in most situations, it is the property of your employer.

And that can extend even to work that you might do in your own home on your own computer on your own time. For example, my brother could have written up the patent applications on his own computer at home after work hours, but that would have made no difference. The patents were created in the normal course of his job and his work, and because of that, they are work product owned by the company regardless of where and how he wrote them down.

I bring this up because I watched Jim Comey spin his tales yesterday, and it was fascinating. Among other things, he said that he himself leaked the content of one of his memos to the media. So the question comes up … who owns the Comey memos?

comeyHere was his story. He said he started the memos after his first meeting with the President. He said that he wrote the first memo immediately after the meeting, on a government computer in a government car.

So … the memo was done on FBI time on an FBI computer in an FBI car in the course of his normal FBI business duties … yes, folks, the Comey memos are clearly a part of Comey’s work product. And as such, they do NOT belong to Jim—they are US Government property.

As a result, was it legal for him to take the memos with him when he left the FBI, to convert the memos into political tools for his own use and gain, and to leak them as and when he sees fit?

Absolutely not. Here is the relevant statute.

18 U.S. Code § 641 – Public money, property or records

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—

Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

Ten years in the slammer, even if the documents aren’t classified … that indicates how seriously this can be taken.

However, it gets worse. In addition to the US Code 8 USC 641 making his taking and leaking of the memos illegal, the FBI Director also signs confidentiality documents just like any other FBI agent. Inter alia, they say that what happens in the FBI, MUST stay in the FBI. The FBI Employment Agreement starts as follows:

1. Unauthorized disclosure, misuse, or negligent handling of information contained in the files, electronic or paper, of the FBI or which I may acquire as an employee of the FBI could impair national security, place human life in jeopardy, result in the denial of due process, prevent the FBI from effectively discharging its responsibilities, or violate federal law. I understand that by being granted access to such information, I am accepting a position of special trust and am obligated to protect such information from unauthorized disclosure.

2. All information acquired by me in connection with my official duties with the FBI and all official material to which I have access remain the property of the United States of America. I will surrender upon demand by the FBI, or upon my separation from the FBI, all materials containing FBI information in my possession.

3. I will not reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of my official employment to any unauthorized recipient without prior official written authorization by the FBI.

4. Prior to making any disclosure, I will seek a determination of whether the information may be disclosed.

A couple of points. Comey is prohibited from revealing any information acquired by virtue of his official employment with the FBI … which obviously includes the memos. Also, you can see in there that nothing changes when you leave the agency. Everything remains the property of the US Government.

Here are the things that an FBI employee cannot release.

PROHIBITED DISCLOSURES

Employees shall not disclose the following types of information to unauthorized recipients, except in the performance of official duties or as authorized under the Prepublication Review process.

Information protected from disclosure by the Privacy Act of 1974, as amended;

Information that is classified or the disclosure of which could harm national security;

Information that reveals sensitive law enforcement, intelligence, counterintelligence, or counterterrorism techniques,sources, or methods of the FBI or any other governmental entity;

Information that would reveal grand jury material protected from disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure;

Information that would tend to reveal the identity of a confidential source or the identity of a government agency or authority or private institution which furnished information on a confidential basis;

Information that relates to any sensitive operational details or the substantive merits of any ongoing or open investigation or case;

Proprietary information and trade secrets;

Information pertaining to wiretaps or intercepts, electronic communications (including storage mechanisms), or foreign intelligence protected or regulated by Title III (Title 18, United States Code, Sections 2510 -2520) or F.I.S.A. (Title 50, United States Code, Sections 1801-1862);

Information pertaining to currency transaction reports regulated or protected by Title 31, United States Code, Section 5313-5319;

Tax return information regulated or protected by Title 26, United States Code, Section 6103;

Information pertaining to contractor bids or proposals or source-selection information before the award of the procurement contract to which the information relates;

Any other information the disclosure of which is prohibited by law, Executive Order, or regulation; or

Any other information that the FBI would have discretion to withhold from disclosure pursuant to civil discovery obligations, the Freedom of Information Act and Privacy Act, or any other statute, law, or regulation.

Assuredly, records of a confidential meeting between the FBI Director and the President fall under the category of “PROHIBITED DISCLOSURES”, for the last listed reason if for no other.

Now, I keep hearing that Comey did nothing wrong because it was not classified information. This is not true at all. Both 8 USC 641 and the FBI Employment Agreement clearly say that it doesn’t matter if the information is classified or not. An FBI employee can’t take their work product with them, nor can they reveal it. It’s not theirs to take, nor is it theirs to reveal. It belongs to the government, classified or not.

And I keep hearing “It’s not leaking, he’s a private citizen.” But his FBI Employment Agreement, which he signed, says that no, he cannot take whatever he wants with him when he leaves the employ of the US. What happens in the FBI is legally required to stay in the FBI, even after he leaves the agency. Otherwise, any ex-agent could reveal anything they wished, and that wouldn’t work at all.

Now, what Comey did are CRIMES. Read the quoted sections of the law and the FBI Agreement, they’re quite clear. It was a CRIME for Comey to take the memos with him, whether or not they are classified. It was a separate CRIME to reveal them to the public, whether or not they are classified. And if you want what is called “consciousness of guilt” as an element of the crime … consider that Comey didn’t stand up and expose the memos himself. Instead, he took the secret path of passing them to a friend (who also broke the law) with instructions to pass them to the media. Brings up my rule of thumb that if a man is hiding something … it’s because he has something to hide.

Look, if we say Comey was innocent of leaking because he wrote the memos, it would mean that anybody could write up their own notes of any confidential Government meeting and LEGALLY leak them to the media under the bogus claim that the notes were their own personal property. Surely nobody thinks that is the case.

Let me close by quoting a bit more from the FBI Employment Agreement (emphasis mine) signed by Comey:

7. Violations of this employment agreement may constitute cause for revocation of my security clearance, subject me to criminal sanction, disciplinary action by the FBI, including dismissal, and subject me to personal liability in a civil action at law …

It’s not just a good idea … it’s the law, with both criminal and civil sanctions.

I do find it hugely ironic that James Comey, who unilaterally said that it was no problem for Secretary Clinton to mishandle classified documents, sees no problem with his purloining FBI-owned notes of confidential Presidential meetings and leaking them to the public. Talk about hubris and arrogance! But I suppose that for the man who illegally appointed himself the Prosecutor, Judge, and Jury on the Clinton server case, this is just another day in the life.

Will Comey pay the price for his crimes? Likely not. There’s one law for the rich and one for the poor, and the Democrats have enfolded him to their bosom. So he’ll probably skate.

Ah, well. Meanwhile, in the real world, we got a very late storm yesterday with an inch and a half (40 mm) of rain. So despite man’s multifold insanities and inanities, the rain continues to fall on the just and the unjust alike, the grass continues its forgiving growth, and the universe is most probably unfolding just as it should …

My best to everyone,

w.

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41 thoughts on “Your Work Product Isn’t Yours

  1. Thanks for spelling all of this out, it didn’t seem anything close to reasonable that he could do what he is claiming

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  2. Comey brazenly asserted this crazy theory in hearing as follows:

    “BLUNT: So you didn’t consider your memo or your sense of that conversation to be a government document. You considered it to be, somehow, your own personal document that you could share to the media as you wanted through a friend?

    COMEY: Correct. I understood this to be my recollection recorded of my conversation with the president. As a private citizen, I thought it important to get it out.”

    Liked by 1 person

    • I question if the man’s memos to himself are the truth or a cover your ass action on his part.
      Their is no way to verify what is in the memos as being accurate. Of course he himself describes them as “my recollection”, another weasel phrase to cover his ass again just in case Trump did have recordings of the conversations. I have no faith in the truth of those memos.

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      • You are spot on, Tom. Even if the notes were contemporaneous there is no way to know they are also accurate. I have a feeling that Trump is playing the man, and when he has played enough he will produce the recordings (‘tapes’ is so passe) and show Comey’s recollections for the fairy tales that they are.

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    • Comey’s brazen assertions in his testimony were breathtaking. Your article, Willis, makes clear the illegality of his actions. But, the contrast between how he regarded and responded to Loretta Lynch’s requests/ orders and how he regarded and responded to Donald Trump’s hopes is equally breathtaking.

      What is clear is that he was not worried that Lynch might turn on him and cause him discomfort, but he was worried that Donald Trump might not forbear such action. So, it was all about protecting himself irrespective of whether what he did was right or not.

      Comey is smart, but his actions suggest he is without good character. Yet, he apparently believes he has acted properly in the interests of the country. So my judgment is he is blind to his chief character flaw. Like Colonel Nathan Jessup, the Jack Nicholson character in “A Few Good Men,” he believes what he did was right because it served a greater purpose. But at least in Jessup’s case the greater purpose was the protection of our country; in Comey’s case, the “higher purpose” that he cannot see is his own status. He didn’t fear Lynch on that account; he did fear Trump.

      Rather than write memos to protect himself (and ensnare Trump), he should have said, “Mr. Trump, I cannot have this conversation. For our mutual benefit, I am going to ignore and forget what was said here because we would not want anyone to claim obstruction of justice had occurred in this case. Any further conversation must include Mr. Sessions. I will with all fairness and speed bring the Mile Flynn investigation to a close. You have my word on that.”

      Then, if he were fired as a result, he would have preserved his good name and would have protected the President, something any loyal subordinate would do. Something anyone with good character would have done.

      Now, is there any basis to the claim that Trump’s words to Comey, if they are as Comey has testified, could be construed as obstruction of justice?

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    • An excellent quote. Amazing what passes for “intelligence” – even for a top intelligence officer – these days. No wonder U.S. spies in Beijing are being massacred. And these clowns publicly release an unverified document accusing Trump of being blackmailed by Russia – why? “Out of abundance of caution.” That’s what so-called “intelligence” is about. I guess the only reason why U.S. spies in Russia are nor being massacred is that they have been massacred a long time ago.

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  3. Comedy in his declaration comes across as one of these James Bond villains who, thinking that they have 007 helpless, feel obliged to share their devilish master plan with him.

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  4. I learned this small fact firsthand, in 1981, in US Army, over a vehicle logbook. Was tasked over a three day weekend with delivering various supplies to troops in AIT training courses at Ft Sill. First two runs I did in a 5 ton, it being 155 howitzer ammo, next day was chow runs, used a GammaGoat since it was just 24 mermite cans and 2 coffee urns. Used the 5 ton again Saturday afternoon to run projos and powder, Goat in evening for supper chow run. I kept to logbook for the 5 ton, did not lock it in the motor pool office since I was going to be using it again and did not want to have to get Battalion CQ NCO to go down and open it each time. Sunday was only chow runs, Monday morning, bright and early at 0:500, CSM tasked a detail to go police 2 softball fields used for battalion softball tourney the day and night before, PFC he pegged as driver comes back and says “no logbook, Sargent Major”, that particular 5 ton being listed on the duty board for the weekend. I get back from morning chow run at 0:630, CSM is waiting for me and we have a very long conversation about just who owns USG documents and the specific manner in which they are to be handled. The primary point being that these strictures apply to ALL USG documents, no matter how mundane. He then instructed me to do a thorough research on this subject and bring my typed conclusions to him within 24 hours. Not as punishment, as training. Put me in good stead later on when I handled a great many Secret and Top Secret documents and manuals.

    He could have Article 15ed me, loss of rank and pay and confinement. So, yea, when working for USG, at any level, your “work product” paperwork wise is USG property and you disseminate it, reveal it or lose it at your peril.

    And all of this applies to Hillary Rodham Clinton as well.

    Liked by 1 person

  5. A question came to mind in reading your account. Will Comey be held to the same standard as Petreaus or “Scooter Libby”?

    In response to one of the commenters that Comey is a smart guy, it brought to mind one of the rules I learned during my career.. never act when angry, frustrated, at someone or some action.. By acting when you have these strong emotions even smart people do dumb things.. Strong emotions trump intellect.

    Finally he kept saying he was “stunned” that Trump would say xxxx … This is a seasoned prosecutor and had headed many high level investigations.. I am sure he has heard it all.. and anyone who has followed Trump to any level shouldn’t be stunned by anything he says.. they should expect it.. especially someone as seasoned as Comey..

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  6. This is a quote from Comey’s written statement, issued before he testified:

    “The Director of National Intelligence asked that I personally do this portion of the briefing because I was staying in my position and because the material implicated the FBI’s counter-intelligence responsibilities. We also agreed I would do it alone to minimize potential embarrassment to the President-Elect.”

    Notice that it was Comey that initiated the one-on-one, private communications with Trump, not the other way round; yet, one of Comey’s main points is that it violated protocol for Trump to contact him (Comey) directly, rather than going through DOJ. Is it any wonder that Trump thought it was okay for him to contact Comey directly?

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  7. JP Miller June 10, 2017 at 4:16 am

    Now, is there any basis to the claim that Trump’s words to Comey, if they are as Comey has testified, could be construed as obstruction of justice?

    None at all. Zero. Zip. Nada. In fact, the “independence” of the FBI Director and the FBI are a recent tradition. Many Presidents in history have told the FBI what to investigate and what not to investigate. See e.g. Alan Dershowitz on the subject.

    And obviously, Robert Mueller doesn’t think there’s a case to be made, or he wouldn’t have allowed Comey to testify.

    w.

    Liked by 1 person

    • It takes 300 years to build a tradition. (Exact quote: It takes the Navy three years to build a ship. It will take three hundred years to build a new tradition. Admiral Cunningham defending a decision to send his ships on a dangerous mission.)

      Like

  8. Famous phrase, “The universe is unfolding as it should”. So we should hope. Hope here being a wish and not a directive. It reminds me of my Buddhist friends who always say “everything happens for a reason”. I guess I can never become Buddhist.

    Beyond a wholesome discipline, be gentle with yourself. You are a child of the universe no less than the trees and the stars; you have a right to be here. And whether or not it is clear to you, no doubt the universe is unfolding as it should. Therefore be at peace with God, whatever you conceive Him to be.

    But I prefer the National Lampoon version.

    You are a fluke of the universe.
    You have no right to be here.
    And whether you can hear it or not,
    The universe is laughing behind your back.

    Therefore, make peace with your god,
    Whatever you perceive him to be – hairy thunderer, or cosmic muffin.
    With all its hopes, dreams, promises, and urban renewal,
    The world continues to deteriorate.
    Give up!

    http://dmdb.org/lyrics/deteriorata.html

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  9. Nice analysis Willis. Legally solid. As is (of course) the linked Dershowitz article.
    In my opinion, all this is going to have negative repercussions in the 2018 elections for antiTrumpers. The Loretta Lynch/Clinton thing is a moderately big deal. The whole Trump-Russia thing is looking more and more like a Democrat fabricated farcical excuse for a flawed candidate’s failure. Will be fun to watch this kabuki theater play out.

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  10. Thanks Willis for a good perspective as usual. Even far away in NZ I too had been wondering and concerned about Comey releasing this material to the press. No professional integrity at all…all about personal status and gain. Such a basic mistake. Loose lips and all that!

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  11. Well done Willis. Great analysis and I agree with you. When I heard Comey say that he leak his memo – ‘his version of the conversation’ to his Columbia pal I thought to myself… well a major intelligence LEAKER has finally been revealed. Based on his actions and testimony I personally don’t think this is the first time Comey leaked info. A person doesn’t just up and decide to leak information – a spur of the moment decision. This is well thought out including the path to the media and assorted CYA aspects. So I think that he has done the same thing in the past and has gotten away with it. I did quite a bit of research on James Comey over the past few weeks. Comey is definitely is not clean himself and has an undistinguished paper trail behind him. He WILL go down as one of our poorer FBI directors… if he is mentioned at all. Sad, Sad, Sad.

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  12. I wonder how much pressure Comey was under from the Clintons and their cohorts. They blamed him for her defeat. Is there an underlying threat that if he doesn’t bring Trump down he may end up like Vince Foster?

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  13. The FBI, what kind of employer is this? First, I give my pledge of loyalty and then I take it back. Can’t I change my mind?

    An Oath made by an Oaf.

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  14. It’s also important to point out that the subject of the memo that Comey drafted had to do with the on-going Flynn investigation. This should be considered as “evidence” gathered in the course of an investigation. That evidence would be released to the press is so out of bounds as to be unbelievable.

    Or, to be more exact, it should lead one to believe that Comey himself probably thinks the entire Flynn investigation is a joke, and will lead to nothing.

    Comey is the Forest Gump of FBI Directors – always seen in the middle of some “historical” event….

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  15. Here are two blog posts showing that the DC. Swamp knew all along that the Russia-Trump claims was bogus from day one:

    The Entire Deep State DC Institutional Apparatus Knew President Trump Was Not Under Investigation…

    https://theconservativetreehouse.com/2017/06/10/the-entire-deep-state-dc-institutional-apparatus-knew-president-trump-was-not-under-investigation/

    and,

    Irony – James Comey’s Concern About Lying Exposes Months-long Lying of Democrat Leadership…

    https://theconservativetreehouse.com/2017/06/08/irony-james-comeys-concern-about-lying-exposes-months-long-lying-of-democrat-leadership/

    ================================================

    These and many more from The Last Refuge blog,showing that Trump was innocent the entire time,that Comey is a lying sack of crap, the whole baloney are riddled with politics.

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  16. “My older brother is a genius.” You are no slouch yourself.

    I have nothing to add to the volumes which have already been written about Comey. He was strange enough before, if I were prez I would ask him to explain certain things and I would question his loyalty. From the outside it looks like Comey is either a loose canon or he is playing for the other team. Either way I would fire him. He is welcome to give me advice and tell me I’m wrong, but I expect the people who work for me to work with me not against me, especially in public. No yes-men but no knife-in-the-back-men either.

    If you meet someone one-on-one for dinner and nobody takes minutes and notes action-items, to me that is more like an interview (or a date) than a business meeting. Still it’s not as strange as meetings in your jet when associates “just happen” to be in their jet parked next to yours… and nobody takes notes.

    I wonder what Trump’s habits are about meeting notes (or recordings) when he doesn’t fully trust the person he is dealing with…

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  17. Let’s face it, you can’t prosecute the Great Comey for, in the words of the Great Comey, his “intent” wasn’t to commit a crime, therefore he merely showed poor judgment. Isn’t that about the summation on Clinton’s server? Doesn’t that set a precedent, and yes, I am being sarcastic before anyone attacks me for supporting Comey! Best I can figure is that he is still trying to buy time for the Clintons and Obamas to get to wherever it is they are trying to get to, but the only support they will give him will be like the trapdoor on a hangman’s platform.

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  18. Willis –

    You said: “However, none of the patents were in his name.”

    Just to be technical – are you sure – they should be in his name. Assuming your brother was the actual inventor (or co-inventor), the patent, as “intellectual property”, belongs to him (and any co-inventors). Much AS YOU RELATE, the commercial and legal rights are ASSIGNED quite automatically to the employer (perhaps “sold” for $1). [Persons who did not materially contribute to the ideas involved (perhaps mere supervisors or company owners) should not have their names included as an inventor, although too often they are.]

    I’ll bet your brother has his name on all the patents and has the dollar bills framed.

    Bernie

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  19. Comey orchestrated the leak of his note to force appointment of a special prosecutor who ends up being his good buddy Robert Mueller. Mueller then turns right around and hires Clinton / O’Bama lawyers and donors as his lead investigative team. Speculation out there is that Mueller already gave Comey immunity for the investigation.

    Independent investigation? In the words of Inigo Montoya (Princess Bride): “You keep using that word. I do not think it means what you think it means.”

    This is the swamp Trump was elected to drain. Reminds me a bit of the Scooter Libby prosecution – when special prosecutor Fitzgerald knew from the beginning who outed Valerie Plame (Richard Armitage) and tried and convicted Scooter Libby for obstruction after he gave other than identical answers during questioning. Cheers –

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  20. Pingback: Recusal and Refusal | Skating Under The Ice

    • Actually, laws only apply to those caught “breaking” them. The basic plank that supports all political parties throughout the world. That is why new laws are constantly being written, politicians trying to cut off their competition at the knees.

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      • Yeah, Ann Rand pointed that out in one of her novels. They want everyone to be guilty of breaking some law. They don’t even bother to enforce many of them. They just want the option so they can control us. Look at how they’re utilizing the “lying under oath” to attack their opponents even when they can’t convict them (or even bother to charge them) on the original “crime”.

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