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Utah-focused political and legal commentary from a pragmatically conservative perspective.

5 Reasons why HealthCare.Gov isn’t Going to be Fixed by November 15 . . . or at all.

Here are five reasons why I’m pretty sure that the Healthcare.Gov website isn’t likely to be done by November 15, or at all, unless they just scrap it and start over (each based on my own painful experience):

1.  The system still logs you out automatically every time you click on the “Learn” tab. Really? Have these folks never heard of sessions? The security is apparently good enough for everyone else. Not even other government sites inflict this kind of pain on users.

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2.  The system still sends you notifications about electronic messages that you cannot read. I apparently have multiple messages waiting for me in the “Healthcare.Gov Notification Center.” The only problem is that there is no Healthcare.Gov Notification Center . . . or any place to read your messages for that matter. I raised this issue with a Healthcare.Gov specialist over the phone, and he told me it was a known issue, and that if it wasn’t fixed by November 15, to give them a call and they would read my messages to me over the phone. Seriously?

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3.  The system is still littered with dead links. Even the “View Eligibility Results” button is a dead link. 100% dead. Has been for weeks (at least for me). Same issues with tons of other buttons, including the “Send This Information to Medicaid Button,” and, occasionally, the “Review and Submit Application Button.” The “Register to Vote” link is working, however. First things first!

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4.  No one seems to know what is going on. When I tried to get support using online chat, I was told to call telephone support. When I called telephone support, they couldn’t assist me because I had gotten too far in the process (i.e., I had been able to create an account). I was assigned a specialist who didn’t call me for two weeks, despite a next day appointment. I filled out an application over the phone that still hasn’t shown up on the website three weeks later, despite assurances that it was “in the system” and “linked to my account.”

5.  At one point last week, the online system simultaneously told me that my application was incomplete, that my children were at the “Initial Enrollment” stage of Utah’s CHIP Program (which I never tried to sign up for), that I was not eligible for Medicaid, and that my detailed eligibility results were ready. Of course, I couldn’t verify any of this inconsistent state of affairs because none of the links worked. Now, I am apparently un-enrolled in CHIP, my application is still incomplete, and my eligibility results are still ready (but the button I’m supposed to click to get them doesn’t work).

Despite its many problems, I always thought that this website would be worked out. Maybe it still will be.  But the more I interact with it, the more I’m becoming convinced that this is not going to work until the first attempt is scrapped and they start over.

It’s that bad.

I find it hard to fathom that our government is still using this nightmare to take people’s personal information (including my own!).  It seems like a recipe for disaster, and a sure lawsuit.  Political considerations aside, this whole thing should be shut down until it’s functioning on some basic level that can instill confidence in its users.


John Swallow’s Lost Data

John Swallow’s enjoyed a nice late summer-early fall reprieve thanks to the predominance of national political issues like Syria, the government shutdown, and the Obamacare launch.

But now, thanks to the Salt Lake Tribune and the state legislature, he’s back in the news in another story that makes you scratch your head and ask,” How in the world is this guy still running the state’s top law enforcement office?”  The Salt Lake Tribune reports that the House Investigative Committee’s investigation into John Swallow’s fitness to be A.G. has hit a snag — in the form of numerous missing electronic letters, which include emails, calendar entries, personal and work computer information, and personal cellphone information.  This quote should give you an idea of the scope of the missing records:

According to an affidavit by Andrew Melnick, one of the investigators working for the House committee, representatives of the attorney general’s office notified investigators Sept. 27 that a potentially large volume of Swallow’s official email was missing.

A Sept. 30 email from Brian Tarbet, general counsel to the attorney general, notified all employees in the office to retain any material that might be pertinent to the investigation.

That notice apparently marked the first time such a directive had been issued — despite numerous investigations into the conduct of Swallow and his Republican predecessor, Mark Shurtleff, including one by the U.S. Department of Justice, which acknowledged in January it was conducting such an inquiry.

Subsequent to the House subpoenas, Melnick said, it became clear that a “potentially significant number” of Swallow’s calendar entries from 2009 — when Swallow joined the office as Shurtleff’s chief deputy — to 2011 have disappeared.

In late 2012, Swallow asked for and received new desktop and laptop computers and a new handheld data device. The information on all of the old devices was deleted. At about the same time, Swallow replaced his personal cellphone.

Swallow’s home computer has stopped working. He has provided the hard drive to the committee, which has forensic experts working to retrieve the information.


The Attorney General’s home computer has now “stopped working”?  He replaced all his work computers and cell phone immediately after he was elected attorney general (and shortly before the Tribune broke the Jeremy Johnson story–very shortly apparently, as his home computer crashed in 2013 and the Jeremy Johnson story was first published on January 12, 2013)?  And there are deleted calendar entries from 2009-2011 — the very times the House committee is primarily concerned with investigating?

And what’s John Swallow’s explanation?  Here it is from his attorney (poor man):

Swallow’s attorney, Rod Snow, said Friday that Swallow’s office computers were swapped out sometime in 2012, part of a routine upgrade. The memory on the computers was wiped out and they were given to someone else in the office.

Snow said he had the technical experts his firm works with try to recover data from the machines, but they could not. Nor were they able to retrieve information from Swallow’s home computer, which crashed early this year.

Snow said both the replacement of Swallow’s office computers and the crash of his home unit happened before any investigation had been launched.

“Our view is we hope they recover everything, because they’re not going to find anything,” Snow said. “Exactly how much is missing, I don’t know. We don’t think there’s anything on there we need to worry about. We hope they can recover it.”

Wow, the machines were removed or crashed?  And all the data on the work computers of the state’s top law enforcement officer was simply erased, without, apparently, a second thought??  And it doesn’t look like backups were kept!!!!????  When I was at a larger firm, the backups were done to tape drives, one of which was swapped out and stored off site in case something happened to the office computer itself.  And this is not unusual practice.  It’s normal.  It (or an equivalent) is what many would say is the least a substantial law firm should do to keep in compliance with ethical obligations.  You’d figure that something would be left, right (and I suppose maybe there is and it’s just not coming through in the article)?


I’m pretty confident that our AG’s office would be outraged and would try to bury criminal defendants who came to them with a similar story for obstruction like this in a criminal proceeding.

And let me pause briefly to point out that I find it quite strange that we heard nothing about this from federal investigators . . . .

In my opinion, the whole thing is beyond fishy.  But then you already knew that if you took the time to read through my post, and my opinion doesn’t really matter anyway.

So, rather than just continuing to rant, I thought I’d briefly identify and discuss some potentially applicable laws that would govern this type of conduct, which might actually be helpful or informative to someone.  So without further ado, here are a few I identified this morning (in no particular order):

1. Obstruction of Justice (Utah Code Ann. 76-8-306).  State law prohibits obstruction of justice “with intent to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, or punishment of any person regarding conduct that constitutes a criminal offense.”  There are two interesting principles involved here.  First, the offense of obstruction of justice, like all criminal conduct, requires some mental state — here it is the “intent” to to obstruct the investigation,  . . . prosecution, conviction, or punishment” of a criminal offense.  In Utah’s criminal code, “intent” is defined as the “conscious objective or desire to engage in the conduct or cause the result.”  Obviously, intent can be proven circumstantially, but since obstruction of justice is a criminal offense, it needs to be proven beyond a reasonable doubt.  Second, obstruction is limited to situations where the conduct involved constitutes a criminal offense.  John Swallow has made a lot of noise about the fact that he hasn’t been charged with a crime and that his conduct may not have been a violation of any criminal law.  I (and many, many others) have been very vocal about why that shouldn’t matter with respect to the standard for impeachment.  But it would appear to matter when it comes to conviction for obstruction of justice.  Because it does not appear to be a crime to obstruct a civil proceeding or an investigation for something other than a criminal offense (although there are other sanctions, as discussed below).

2. Falsification of Alteration of a Government Record (Utah Code Ann. 76-8-511).  Falsification or Alteration of  Government Record is a Class B Misdemeanor and occurs when a person “intentionally destroys, conceals, or otherwise impairs the verity or availability of the information or records, knowing that the destruction, concealment, or impairment is unlawful.”  Again, there is an intent requirement, but the requirement that the falsification or alteration (which includes destruction or impairment) be in connection with a criminal offense is absent — the person must only have knowledge that their falsification or alteration is “unlawful.”  I can’t find where the term “unlawful” is specifically defined in the Utah Code, but in its ordinary meaning, it simply means not conforming with the requirements of law and doesn’t necessarily carry a criminal connotation.

3. Unofficial Misconduct (Utah Code Ann. 76-8-203).  The offense of Unofficial Misconduct is committed when a public official “knowingly withholds or retains from his successor in office or other person entitled to the official seal or any records, papers, documents, or other writings appertaining or belonging to his office or mutilates or destroys or takes away the same.”  The definition is a little ambiguous, but I read it to mean that Unofficial Misconduct occurs when a public official:

  1. Knowingly withholds or retains from his successor in office any records, papers, documents, or other writing appertaining or belonging to his office of mutilates or destroys or takes away the same;
  2. Knowingly withholds or retains from an other person (not his successor in office) entitled to the official seal any records, papers, documents, or other writing appertaining or belonging to his office of mutilates or destroys or takes away the same;
  3. Knowingly withholds or retains from an other person (not his successor in office or entitled to the official seal) entitled to any records, papers, documents, or other writing appertaining or belonging to his office of mutilates or destroys or takes away the same;

I would assume that the House Investigative Committee is entitled, by virtue of its constitutional authority over investigations and accompanying subpoena power, the missing records.  Interestingly, the mental state requirement for this offense is “knowingly,” rather than “intentionally.”  The Utah Criminal Code defines “knowingly” as follows (see Utah Code Ann. 76-2-103(2)):

Knowingly, or with knowledge, with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

4.  Stealing, mutilating, or destroying public records (Utah Code Ann. 76-8-411).  This offense can be committed by a “custodian” of government records (in which case it is a Third Degree Felony) or it can be committed by a person who is not a custodian (in which case it is a Class A Misdemeanor).  The term “custodian” is not defined in the statute.  A person commits this offense when they, as to any record “filed or deposited in any public office, or placed in his hands for any purpose,” “steal[s], willfully destroy[s], mutilat[es], defac[es], alter[s], falsif[ies], remov[es], or secret[es] the whole or any part thereof, or who permits any other person so to do.”

5. Tampering with Evidence (Utah Code Ann. 76-8-510.5).  This one is important enough that the relevant portions deserve to be quoted substantially intact:

 A person is guilty of tampering with evidence if, believing that an official proceeding or investigation is pending or about to be instituted, or with the intent to prevent an official proceeding or investigation or to prevent the production of any thing or item which reasonably would be anticipated to be evidence in the official proceeding or investigation, the person knowingly or intentionally:

(a) alters, destroys, conceals, or removes any thing or item with the purpose of impairing the veracity or availability of the thing or item in the proceeding or investigation; or

(b) makes, presents, or uses any thing or item which the person knows to be false with the purpose of deceiving a public servant or any other party who is or may be engaged in the proceeding or investigation.

There you go. No requirement that it be in connection with a criminal proceeding and a relatively soft intent requirement.  This seems to be the provision most applicable to John Swallow’s situation.  If the tampering occurs to obstruct or prevent an “official proceeding,” it is a Third Degree Felony, otherwise, it is a Class A Misdemeanor. An “official proceeding” is defined as a civil trial, administration action, examination under oath, or other civil or administrative process.

6. Spoliation of Evidence.  In normal civil litigation, parties are required to preserve evidence — including electronic evidence — once they know or suspect that litigation over a subject may be forthcoming.  That is, the obligation to preserve evidence does not necessarily arise with the initiation of litigation, it arises when you suspect that litigation may be forthcoming.  If you purposefully destroy evidence, or even if you negligently fail to preserve it, courts can impose sanctions on you, which sanction may include an adverse inference against on the matter for which evidence is no longer available (in other words, the court with decree that you were hiding something and assume the worst).  While we’re not in a court of law, obviously nothing would stop the House Investigative Committee from making such inferences in its investigation.

As I’ve said before, we already know all we need to know about John Swallow’s character and competency as it relates to his fitness as Attorney General.  He’s refused to do the right thing and resign, and, as a result, forced an official legislative investigation, which he claimed to have welcomed.  Now he’s either intentionally sabotaged the investigations into his conduct or is guilty of gross negligence regarding the preservation of records.  It’s beyond time for him to go.

I for one, am glad to see the House Investigative Committee is conducting a serious investigation and holding his feet to the fire.

Fourteen Days in October: My Experience Trying to Sign Up for Obamacare

Despite the fact that I've made no secret about my general distaste for Obamacare, I'm one of the ones it was created to help.  Nearly three years ago, I left a solid, good paying job to strike out on my own in the legal business, and in so doing, … [Continue reading]

President Obama and Syria

In his quiet, solitary moments, I suspect President Obama might be asking himself questions like, "how did this all happen?" and  "how in the world, did I get here?" Those are natural, reflective questions.  If I were in his place, they'd … [Continue reading]

Judicial Primer: Article 3 and the Federal Courts

While there has always been -- of necessity -- a lot of mixing of America's political and judicial worlds, the interaction has seemed to accelerate of late.  These days, any political battle of consequence is just the first round of a fight that … [Continue reading]

The Obamacare Disaster — Time to Stop Gloating and Get Serious About Reform

Ever since President Obama released the news last week that he was delaying implementation of Obamacare's employer mandate requirement, there has been an awful lot of gloating from Republicans: "Obamacare is so poorly designed, it can't even be … [Continue reading]

The Voting Rights Act . . . P.S. It’s Still There . . . .

I don't get all the outrage over the Supreme Court's Voting Rights Act decision (I mean, I suppose I get it from a political perspective, maybe, but otherwise, I just don't get it at all). According to most headlines you've read today, the Supreme … [Continue reading]

John Swallow’s Attempt to Intimidate the Utah Legislature

Sometimes, when practicing as a lawyer, the most difficult arguments to respond to are the ones that are so ridiculous that you have a hard time even fathoming what to say. I feel like John Swallow put me in that position last night, when the guys … [Continue reading]

What To Do With Utah’s Caucus System?

I held off for as long as I could, folks.   Really.  I'll try to be intelligent about this, I promise. What to do with Utah's caucus system? Get rid of it altogether?  Reform it?  Create an alternate path such as Count My Vote?  There are … [Continue reading]

Some Random Political Quick Hits

Too tired to offer up any real substantive content this morning.  So, instead, you get something akin to my own cynical version of Political Cornflakes. :) John Swallow's getting away with it. Wake up Utah GOP.  This guy's not leaving of his … [Continue reading]