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February 13, 2013

Has DOJ responded (and/or has anyone seen any response) to House members' questions about Swartz prosecution?

As reported in this prior post a few weeks ago, the leaders of the US House of Representatives' Oversight and Government Reform Committee — via this letter to Attorney General Eric Holder dated Jan 28, 2013 —asked a whole bunch of tough questions of the Justice Department concerning the federal prosecution of on-line activist Aaron Swartz.  As highlighted in that post, the detailed three-page letter from Chairman Darrell Issa and ranking member Elijah Cummings included important questions concerning what "plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz" and concerning what "factors influences the Department's decisions regarding sentencing proposals."  This letter specifically asked for a briefing on these matters from DOJ officials no later than Monday Feb. 4, 2013.

It is, of course, now well over a week since Feb 4, and I have not seen nor heard any information concerning any official (or unofficial) substantive responses from the Justice Department to any of the questions House members raised via this letter.  Given all the media attention that swirled around this matter before, I am surprised this investigation by House members has not garnered additional attention.

A bit of research did reveal this local Boston Globe story dated February which reports on a possible "private briefing" which, for me, raised more questions than it answered:

Criticism of Swartz’s prosecution has led the House Committee on Oversight and Government Reform to open an inquiry about the case. The panel is seeking answers from the Department of Justice regarding the severity of Swartz’s proposed punishment, and whether his activism affected his prosecution. Justice officials could provide a private briefing for committee members as soon as next week, House aides said....

The Department of Justice’s agreement to brief the House committee came a week after Issa and ranking Democrat Elijah Cummings sent a joint inquiry requesting information about the case.  Swartz was originally indicted in 2011 on four felony charges, according to their letter, but a superceding indictment in September upped that number to 13. The final tally was punishable by up to $1 million in fines along with time behind bars, though Swartz would have faced only seven to eight months in prison if he had taken a plea deal.

Representatives John Tierney of Salem and Stephen Lynch of Boston, who sit on the House Oversight Committee, were not available for comment, according to their offices. Warren’s office also said she was not available for an interview. The US attorney’s office in Massachusetts referred questions to the Department of Justice, where officials also declined to comment. The Justice Department would not say whether Ortiz would participate in the House briefing or whether the agency is conducting an internal investigation.

I think there is more than just a little irony to the fact that apparently a House Oversight and Government Reform Committee is apparently content to get a "private" briefing about this matter and nobody is commenting (or now reporting on) whether this meeting has taken place and/or whether and how any oversight is being exercises on these important fronts.  I am very dinsinclined to start looking for a bunch of black helicopters, but I must admit that government conspiracy types sure could now start working on a new chapter of cover-up theories in this case.

Some recent related posts:

UPDATEVia How Appealing, I see that there is a now this new article in Roll Call on this front headlined "Congress: Is Computer Law Too Tough on Hackers?". Here are excerpts which discuss sentencing issues and the (mysterious?) DOJ briefing apparently still in the works:

For years, law enforcement officials and prosecutors have lobbied Congress to up the penalties for hacking and other computer crimes, repeatedly invoking the argument that hackers are increasingly working with, or are sponsored by, organized crime or foreign states, and aren’t simply smart kids showing off in their parents’ basements.  “There has been a sense in Congress that ratcheting up the penalties on criminal laws was an easy giveaway to DOJ to get something they wanted,” said Cindy Cohn, legal director of the Electronic Frontier Foundation, an Internet freedom group.

But now some lawmakers are suggesting that prosecutors — and perhaps Congress — may have overreached, and they are taking a new look at the Computer Fraud and Abuse Act.

“The crime and the punishment did not fit” for Swartz, House Oversight and Government Reform Chairman Darrell Issa, R-Calif., said at the memorial.  “This wasn’t a big case.” Rep. Alan Grayson, D-Fla., declared that “prosecution should not be persecution,” while Sen. Ron Wyden, D-Ore., blamed a “poorly written criminal law” for labeling Swartz a dangerous criminal.

Critics of the Computer Fraud and Abuse Act argue that the statute has several problems ... [including that] the penalty scheme for CFAA imposes almost entirely felonies, according to Cohn, with little room for misdemeanors. Cohn said prosecutors were only able to threaten Swartz with so much jail time because the CFAA penalties are out of proportion with the actual offenses; she argued that the lawmakers who approved such penalties could have hardly expected that they would be used as they were against Swartz.

Congress has seen previous attempts to clarify the law, including an amendment last year from Senate Judiciary ranking member Charles E. Grassley, R-Iowa, and Sen. Al Franken, D-Minn., that would have altered the terms of service portion.  The latest effort comes after Swartz’s death and has been dubbed “Aaron’s law” by Wyden and Rep. Zoe Lofgren, D-Calif....

But the draft of Aaron’s law still doesn’t address the issue of penalties, and its future remains cloudy. House Judiciary Chairman Robert W. Goodlatte, R-Va., said his committee is looking into the issue but called it premature to promise a hearing; a Senate Judiciary Committee spokesman indicated that panel has no plans to take up changes to the CFAA.

That leaves the House Oversight and Government Reform Committee, where Issa and ranking member Elijah E. Cummings, D-Md., have requested a briefing from the Justice Department on its prosecution of Swartz.  The briefing is expected in the coming days, after which committee leaders will have a better idea of how to proceed. Senate Minority Whip John Cornyn, R-Texas, has also written to Attorney General Eric H. Holder Jr. regarding the Swartz prosecution, which is now inextricably linked to the broader issue of how computer crimes are prosecuted.

The Justice Department has already pushed back against the notion it persecuted Swartz, with Ortiz releasing a statement last month defending her office’s conduct.  Ortiz claims that prosecutors sought a sentence of six months and denies ever telling Swartz’s attorneys they intended to seek maximum penalties under the law.  “The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct — while a violation of the law — did not warrant the severe punishments authorized by Congress and called for by the sentencing guidelines in appropriate cases,” Ortiz said.

February 13, 2013 at 06:17 PM | Permalink


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What's the coverup here? I would be happy to learn that members of Congress got a briefing from DOJ and did not all run out to a bank of microphones to blab about it.

Posted by: Thinkaboutit | Feb 13, 2013 6:24:58 PM

There was also the letter from Cornyn.

Posted by: = | Feb 13, 2013 10:55:17 PM

Thinkaboutit: I am not eager for member of Congress to turn a private meeting into political rhetoric and grandstanding ASAP. But I am eager to know (1) if DOJ has as of yet responded in any substantive way to the questions raised in public letters from the House members and Senator Cornyn, and (2) if/when there is a substantive response, what the basics of that response reveals.

If there is good reason to think these matters are better discussed by the legislative and executive branches behind closed doors, I am fine with such a process. But is it too much to want information about (a) whether these matters have even yet been discussed behind closed doors, and (b) why the decision was made to do this behind closed doors rather than via public documents/hearings?

Posted by: Doug B. | Feb 14, 2013 12:20:59 PM

Thinkaboutit --

I have to agree with Doug. Unless I'm missing something, this is not a national security case. Why the need to go behind closed doors? When I was talking with Doug on a PBS program earlier this week, one thing we agreed on was the need for transparency in DOJ. I just can't see any good reason DOJ won't publicly disclose what was going on with this prosecution. Unlike some, I don't preemptively condemn the government; it could well be that every single thing it did was justified. And Swartz wasn't some poor street person; he was a brilliant and wealthy man with a lot of freinds.

We pay the bill for what DOJ does, and I would like them to tell us what it was. The case is over; it's not like they'd be giving away something that legitimately remains confidential (or, if so, they could withhold that).

We had enough of the DOJ shake-and-jive with the "disclosure," if that's the right word, of the Fast and Furious documents. A bit of forthcomingness wouldn't hurt these guys.

Posted by: Bill Otis | Feb 14, 2013 1:32:34 PM

Bill, I don't think the DOJ has been particularly transparent under any administration. I would love more transparency. All I am saying is this: wasn't the briefing supposed to have been this week? I understand the desire (need?) for information the second it happens, but isn't it a little early to start talking about coverup? The Swartz case is not even close to being the worst example of a law being stretched too far (see Orin Kerr's analysis of law on Volokh) or of a lengthy but unrealistic punishment being threatened. It's a tragedy for sure, but I think the shame is that members are only asking about this case and not the practices DOJ considers normal.

Posted by: Thinkaboutit | Feb 14, 2013 2:20:44 PM

"When I was talking with Doug on a PBS program earlier this week,"

Wow, Bill. PBS never has a single program, even if about plants or cooking, that fails to bash our country, corporate America, and the productive male. You are lending your conservative credibility to this anti-American, left wing of the Democratic Party propaganda outlet. PBS has the credibility of the official North Koran News.

Posted by: Supremacy Claus | Feb 14, 2013 7:55:29 PM

SC --

I try to deal with the world as it is, much as I wish it were different. In the world as it is, PBS is out there, and people listen to it. The realistic choice is not whether conservatives will outnumber liberals on that forum - they won't -- but whether there is any conservative representation at all.

That's why I do PBS (as I also did with the Scooter Libby case). It's why I do debates hosted by Amnesty International, the ACLU, the ACS and other liberal groups. It's why I debate at liberal law schools. It's much of the reason I hooked on at Georgetown. Indeed, it's not a small part of the reason I comment here -- the alternative is that the Left will virtually own the site, which has a wide readership.

My preferred answer to bad ideas is not to silence them (via speech codes or exclusion), or ignore them, but to take them on.

Posted by: Bill Otis | Feb 14, 2013 9:35:25 PM

Whatever happens, it will be just one more DC "dog and pony" show.

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