Members Of Congress Ask Eric Holder To Try Again In His Explanation Of The Prosecution Of Aaron Swartz

from the this-time,-with-some-reality-involved dept

Fri, Jan 10th 2014 7:39pm — Mike Masnick

Tomorrow is the anniversary of the unfortunate passing of Aaron Swartz. Senators John Cornyn and Al Franken, along with Rep. Darryl Issa, have now sent Attorney General Eric Holder yet another request for an explanation concerning the investigation and prosecution of Swartz. This follows on a similar request from last year, but these elected officials note both that the DOJ's response was inadequate, and that it was also contradicted by the eventual report on the prosecution that came out of MIT.

We regret that the information your Department has provided to date has not been satisfactory -- among other things, it painted a picture of prosecutors unwilling or unable to weigh what charges to pursue against a defendant, something which you have instructed federal prosecutors is "among [their] most fundamental duties."

The account also is inconsistent with findings in the report prepared by MIT about the prosecution of Mr. Swartz, dated July 26, 2013 ("MIT Report"). A letter provided by the Department in May states that "the charging and sentencing decisions made by Department. lawyers were properly based on the law and the facts of the case . . . and not on inappropriate considerations, such as Mr. Swartz's exercise of his legal rights as a citizen." The MIT Report indicates that Assistant U.S. Attorney Stephen Heymann considered other factors in advance of the return of the superseding indictment. He told MIT that "the straw that broke the camel's back" was an internet webpage soliciting signatures on Mr. Swartz's behalf by Demand Progress, an activist group founded by Mr. Swartz.

In other words, despite the claims from Holder that the charges against Aaron were not based on Swartz exercising his right to free speech, Stephen Heymann has since admitted that, in fact, Swartz's friends speaking out on his behalf were what made him decide to try to throw the book at Swartz. The letter points out further claims from Holder that appear to be contradicted by the MIT report and note:

Inconsistencies such as these require serious responses to the original letter, and indeed raise more questions about the prosecution of Mr. Swartz. One year ago, we sought the basis for the U.S. Attorney Carmen Ortiz's determination that her office's conduct was "appropriate." We have received no such information, not even the sentencing memoranda that surely were prepared in a case such as this.

In March, you testified that Mr. Swartz's case was "a good use of prosecutorial discretion." We respectfully disagree. We hope your response to this letter is fulsome, which would help re-build confidence about the willingness of the Department to examine itself where prosecutorial conduct is concerned.

Given how Holder and the DOJ have responded to these issues in the past, I wouldn't expect any real response to be forthcoming any time soon.

Aaron Swartz Letter to DOJ (PDF)Aaron Swartz Letter to DOJ (Text)

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Filed Under: aaron swartz, al franken, darrell issa, doj, eric holder, john cornyn, prosecution, stephen heymann

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art guerrilla (profile), 10 Jan 2014 @ 7:53pm

well, finally, a use for the enn ess ehh...
they can simply go to their backup tape for aaron et al, on that date range, and we can settle this once and for all...
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Coogan (profile), 10 Jan 2014 @ 8:32pm

Given how Holder and the DOJ have responded to these issues in the past, I wouldn't expect any real response to be forthcoming any time soon.

Of course not. Why obey the law when you know that you can ignore it without consequence?
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Anonymous Coward, 10 Jan 2014 @ 8:35pm

The whole truth.
Coming in 2090
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Anonymous Coward, 10 Jan 2014 @ 8:51pm

Somewhat amazing he still has a job, imagine it just like Alexanders situation, cant fire em/let em resign cause it would look like victory for the people
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Anonymous Coward, 10 Jan 2014 @ 9:40pm

Charges free speech based? This is beyond ludicrous. Moreover, the "camel" comment in the letter and the report is pure hearsay. Swartz's lawyer is the only one who has said this is what the lead prosecutor said. Just because he says so does not make it true.

I have no problem at all with people being upset because they do not believe he should have been charged, but all this trying to present him as a saint while ignoring the copious evidence that he engaged in clearly illegal conduct is disingenuous to a fault and undermines what might otherwise be opinions carrying persuasive effect.
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Anonymous Coward, 10 Jan 2014 @ 10:42pm

all this trying to present him as a saint while ignoring the copious evidence that he engaged in clearly illegal conduct

Irrelevant to the core issue. The problem here is flagrant abuse of prosecutorial discretion, not whether or not Ortiz and her team were able to find statutes under which he could be charged.
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Corrupt from the top down, 10 Jan 2014 @ 10:46pm

Obama is the problem
The White House is STILL ignoring the White House petitions to fire both Carmen Ortiz and Stephen Heymann, despite its promise to formally respond to all petitions that exceed the required number of signatures.

The White House is STILL advocating the Swartz treatment for Snowden.

This is a morally bankrupt administration.
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That Anonymous Coward (profile), 10 Jan 2014 @ 11:03pm

Re:
"he engaged in clearly illegal conduct"
Are you a Judge?
Did you head all of the evidence in this case?
Do you understand the alleged victim of this alleged "crime" did not ask for the case to proceed?
Did you happen to notice that the charges were stacked and stacked and magically increased in length and severity after public statements were made?

We live in a country where a rapist got out of jail for good behavior while the person who made the authorities even do anything about the crime faces a much longer term. Perhaps there is not equal justice when people make noise.
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krolork (profile), 11 Jan 2014 @ 12:17am

We need a revolution.
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Anonymous Coward, 11 Jan 2014 @ 12:44am

Response to: Anonymous Coward on Jan 10th, 2014 @ 9:40pm
You know what else is clearly illegal? Buying, selling and smoking marijuana. Yet you don't see the DOJ prosecuting everyone who is openly doing these things in Colorado. So you'll have to acknowledge that there is discretion in what laws they enforce and which ones they don't. That being the case you have to ask, as these senators are, why did they go to these lengths to "get" Schwartz?
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Anonymous Coward, 11 Jan 2014 @ 1:36am

Re:
What copious amount of evidence about wrong doing?

The only footage of a kid running after doing something naughty?

Did you know that room bare the scars(graphite) of decades of hacker culture which was never ever treated as a criminal offense and in fact was very much encouraged by just everyone there?

So disingenuous are the people now trying to paint it as a serious offense.

https://en.wikipedia.org/wiki/Hacks_at_the_Massachusetts_Institute_of_Technology

http://www.b oston.com/yourtown/cambridge/2012/09/17/hackers-delight-history-mit-pranks/RTncCPQ02YSNy7YLHCY7UJ/pi ctures.html

http://wiki.mitadmissions.org/Hacks
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silverscarcat (profile), 11 Jan 2014 @ 1:40am

Re: well, finally, a use for the enn ess ehh...
Oh, that data has suddenly disappeared. Don't you know how it works yet?
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saulgoode (profile), 11 Jan 2014 @ 1:48am

Re:

Moreover, the "camel" comment in the letter and the report is pure hearsay. Swartz's lawyer is the only one who has said this is what the lead prosecutor said. Just because he says so does not make it true.
This is incorrect on a couple of counts.

First, it was not Aaron Swartz's lawyer who quoted the lead prosecutor, it was MIT's lawyers (in a memorandum provided by MIT�s outside counsel to its Office of General Counsel, dated August 10, 2012).

Second, MIT's counsel recited what the lead prosecutor stated directly to them -- in order to qualify as "hearsay" they would have to had quoted something that they heard that the prosecutor said to someone else.
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Anonymous Coward, 11 Jan 2014 @ 1:50am

Re: Re: well, finally, a use for the enn ess ehh...
The only remaining copies of it are in the UK, Australia, New Zealand, Canada and Israel.

Maybe the moose can give it back, because I don't think the kangaroos will.
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Anonymous Coward, 11 Jan 2014 @ 2:01am

Re: Obama is the problem
No, the lack of pushback from the general public is the problem. The lack of oversight of, well, anyone in Government by anyone else means that the system is fully broken.

I hear there's a binding document that has somehting to say about tyranny of the people...
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justok (profile), 11 Jan 2014 @ 3:13am

Re:
Well, you know
We all want to change the world
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Rekrul, 11 Jan 2014 @ 4:55am

"Dear Senators John Cornyn, Al Franken, and Rep. Darryl Issa,

Fuck you. It's not like you or any other members of congress are going to actually do anything over this, so go piss off and stop bothering me!

Sincerely
Eric Holder"
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Anonymous Coward, 11 Jan 2014 @ 6:06am

Re:
No "we" do not need a revolution.

Why not try enforcing the laws, rules and regs on the books already? And I say we start with the lawmakers, the children and grandchildren of the lawmakers.

Have their lives gone over with the same zealotry and perhaps moreso than Mr. Swartz was subjected to.
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Anonymous Coward, 11 Jan 2014 @ 6:13am

Re: Re:
"Do you understand the alleged victim of this alleged "crime" did not ask for the case to proceed?"

In my opinion if the alleged victim of the alleged crime said to the police that they did not want to make a case and do not want a case to proceed then the police should respect the rights of the victim and drop the case.

It seems to me that with the police pursuing the case and going against the wishes of the victim (who did not want the case to proceed) seems that the police had a hidden agenda and wanted to make an example of the person who allegedly committed the crime even though the victim asked for the case not to proceed. Perhaps the police wanted to make an example of him for his activites and of his involvements because they didn't like them and by pursuing this case (even though the victim asked for it to be dropped) felt they could bring him down and shut him up even if he did no wrong.
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Anonymous Coward, 11 Jan 2014 @ 6:14am

Re: Re:
I stand corrected that it was an MIT lawyer who recounted the alleged statement in the report based upon notes of a conversation held about one year earlier, a copy of the actual notes taken during the conversation not being provided for review (though there is nothing so out of the ordinary as to give pause that the recitals in the report are not accurate).

Hearsay are alleged statements made by a person that are being communicated by another person. It can range from "He/she told me..." to "He/she told him/her, who told him/her, etc.....". In the eyes of the law there is a strong presumption against the admissibility of hearsay at trial because the best evidence of what was said is the actual speaker.
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Anonymous Coward, 11 Jan 2014 @ 6:22am

Re: Re: Re:
"In my opinion if the alleged victim of the alleged crime said to the police that they did not want to make a case and do not want a case to proceed then the police should respect the rights of the victim and drop the case."

Many times this is the case, though it does bear mentioning that oftentimes this is so because the victim, a necessary witness in the event of a trial, may be hostile to the idea of a trial at which he/she would be required to testify.

Another reason a trial may proceed despite a victim's desire to the contrary is that prosecutors do not represent victims. They represent the public at large because it is public laws that have allegedly been violated.
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That One Guy (profile), 11 Jan 2014 @ 7:06am

Re:
I doubt he'd be that blunt about it, but that'll probably be the general gist of his response, yeah.
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Anonymous Coward, 11 Jan 2014 @ 7:52am

Re: The whole truth.
No need to wait until 2090:

No Easy Way Out: Remembering Aaron Swartz on the One Year Anniversary of his Murder

http://willyloman.wordpress.com/2014/01/11/no-easy-way-out-remembering-aaron-swartz-on-the-one -year-anniversary-of-his-murder/
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Anonymous Coward, 11 Jan 2014 @ 8:10am

The American "justice" system that allows "plea bargains" and sentences that can easily add up to tens or hundreds of years of prison is DISGUSTING!

98 percent of the people charged take the plea bargain, because the prosecutors scare them too much with tens of years or prison even for victimless crimes - all while the rich people get "settlements" in which they pay 1 percent of what they made in their crime, and serve no prison time.
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Anonymous Coward, 11 Jan 2014 @ 8:11am

Re: Response to: Anonymous Coward on Jan 10th, 2014 @ 9:40pm
In addition money laundering, fraud, and drug trafficking are illegal but I do not see any banksters in jail. In fact, they all got big bonuses paid for by the taxpayers.

It is good that the questions are being asked by people who might even get a response, no matter how contrived, but one might wonder why it has taken so long and why these people in particular.
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Anonymous Coward, 11 Jan 2014 @ 8:14am

Re: Obama is the problem
"The White House is STILL advocating the Swartz treatment for Snowden."

Use the Swartz Eric
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Anonymous Coward, 11 Jan 2014 @ 8:15am

Re:
We need idiots to stop playing into their hands.
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justok (profile), 11 Jan 2014 @ 10:32am

Re: Re:
You say you got a real solution
Well, you know
We'd all love to see the plan
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justok (profile), 11 Jan 2014 @ 10:33am

Re: Re:
You say you'll change the constitution
Well, you know
We all want to change your head
You tell me it's the institution
Well, you know
You better free you mind instead
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Anonymous Coward, 11 Jan 2014 @ 10:39am

Re:
No it's more like if they fire or resign, the administration then becomes the lightning rod that everyone focuses their questions/demands on.

Obama then also has to go through the hassle of getting a replacement which would be more of a circus on his end than leaving them in place.
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silverscarcat (profile), 11 Jan 2014 @ 10:41am

Re:
Would love it if he did that and then got reminded, hard, along with the rest of the Obama administration, that the Congress has the authority to Impeach the Executive Branch and have an open and public trial.

Not to mention the authority to convict members of that branch if needed.
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That One Guy (profile), 11 Jan 2014 @ 11:32am

Re: Re:
That could be... interesting. Interesting, and quite possibly bloody as well.

It's pretty obvious the Executive branch believes that they're above the other parts of the government, answerable to essentially no-one, so calling their bluff/belief like that could lead to some pretty big fireworks, as everyone got to see just how much they wanted to hold on to the 'crown'.
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Pixelation, 11 Jan 2014 @ 12:18pm

Heymann and Ortiz are like bad cops. "Throwing the Book" at someone they don't like. It's an abuse of power and people like that have no business holding any position of power.
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Anonymous Coward, 11 Jan 2014 @ 1:35pm

how's about charging those on the prosecuting side with contributary manslaughter or similar. i bet the excuses would come flooding out then by God! aaron deserves to be remembered not just for who he was and what he believed in but also for the true reasons behind his death! if nothing else, perhaps it would serve as a bit of a reminder that just because you work for the DoJ, it doesn't mean that you cant be charged with crimes, that pursuing someone just because your position allows doesn't mean you should or are right to do so and that you are there to do a job, not there to do what some outside party tells you to do so as to benefit them! and yes, you lying fuckers on the west coast know who you are!!
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Anonymous Coward, 11 Jan 2014 @ 1:46pm

they could of course always try the direct approach of calling him what he is, a lying arse hole! that might provoke a reaction!!
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Just Sayin', 11 Jan 2014 @ 6:53pm

Re: Re:
You don't have to be a judge in order to make a statement like that. It's a pretty clear case (ie, he's on video entering the place where the laptop was installed, example).

Moreover, the police and prosecutors don't have to wait until a judge decides he's guilty to push their case. Due process doesn't start with a judgement, it finishes with one.

Your rapist rant is amusing, but not relevant - except that had Aaron been reasonable, this likely would have done away pretty quickly and been done with. Instead, everything I have read out there suggested that he continued to thumb his nose at authority, which lead to what some might call "judicial ramp up" but what most of us call "hardball".

Had Aaron not decided to end his own life, this likely would have blown over into a 1 year probation don't do it again you bad boy type thing that would have gone away. He appears to have been getting some pretty horrible legal advice or making some poor personal choices that lead to the issues at hand.

I don't talk badly about Aaron because I know he was a smart guy who did lots of good things, but it's clear he did at least a few things that were marginal or even quite illegal. I think it's very disappointing that some people feel like using his suicide to further a political agenda. He's not a martyr, just a guy who refused to face up to responsibility and instead took the other exit. It's incredibly sad, that is for sure.
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That Anonymous Coward (profile), 11 Jan 2014 @ 7:02pm

Re: Re: Re: Re:
The "crime" in this case was victimless.
Nothing was stolen, no one was harmed.
In the mean time other "high profile" cases were not pursued with the same dogged asshattery, despite millions having lost real property and actual harm being caused.

This was a case where a prosecutor wanted to drive a political point home, and used poorly written laws to make that point.

He might have been found to have broken the law, we'll never know... but stacking several lifetimes to force someone to cave in is abuse of process. Perhaps DoJ would like to deal with their 'Brady Violations' and clean their own house before deciding they can pursue others. Perhaps they should pursue cases where it isn't a slam dunk case, simply because a law was broken... rather than ignore the crime because it might be hard. Perhaps turning a simple case into a headline grabbing extravaganza so they can put a tick in the win column so we might look past their abject failures to protect actual people, actual property while taking orders from a cartel of corporations to pursue cases on no evidence other than their word... which often goes silent when it is time to present evidence and none is forthcoming to back up the claims.

The public was not harmed by Aarons actions, the public was massively harmed by the witch hunt that followed. It showed how the law is broken, destroyed what little faith people had in the rule of law, and showed that Justice is only used against those to poor to buy their way out of it.
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Anonymous Coward, 11 Jan 2014 @ 9:37pm

Re:
do you even know what 'discretion' is ??? the first poster is right, this stupid ranting is not helping your 'cause' one little bit.
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Anonymous Coward, 11 Jan 2014 @ 9:40pm

Re: Re: Obama is the problem
they did respond, they correctly responded by rightly IGNORING IT...
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Anonymous Coward, 11 Jan 2014 @ 9:43pm

Re:
yes, just like Burnie Maddoff,, oh wait !!!
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Anonymous Coward, 11 Jan 2014 @ 9:45pm

Re:
and yet all he is remember for is some odd ball, criminal who topped himself.
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Anonymous Coward, 12 Jan 2014 @ 12:13am

Re: Re:
And what are you remembered for? Solar panels?
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Anonymous Coward, 12 Jan 2014 @ 2:48am

Re: Re:
no he's not and I'm pretty sure you meant offed dipshit
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Anonymous Coward, 12 Jan 2014 @ 2:49am

Re: Re: Re:
plus your grammar sucks, semi-illiterate much?
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David, 12 Jan 2014 @ 3:01am

Re:
Without consequence? Hardly. For committing repeated perjury before congress concerning his illegal arms trading, Holder was tasked with investigating himself.

So the consequence of his breaking the law is job security, getting paid for doing vanity research on himself.

Of all the corrupt institutions of the current administration, the Department of "Justice" is probably the most cynically corrupt one.

The whole "plea deal" extortion business is designed to have people bled dry when they insist on their constitutional right to a jury trial rather than just taking whatever the prosecution feels like, independent of proof or innocence.

It's as crooked as any kangaroo court, only more expensive.
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Anonymous Coward, 12 Jan 2014 @ 6:11am

Re: Re: Re: Obama is the problem
So the public should just ignore criminal wrongdoing and extortion via legal fiat by the Department of 'Justice'? People need to lean on them, and lean hard. Keep demanding accountability from the publically-elected Congressional and Senators.

Because, if we actually held them accountable, then they wouldn't get away with this shit.
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Anonymous Coward, 12 Jan 2014 @ 7:46am

Re: Re:
You look confused, are you claiming the Bernie Madoff case disproves statements about plea bargains? That is ridiculous.
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David, 12 Jan 2014 @ 10:23am

Re: Re: Re:
In my opinion if the alleged victim of the alleged crime said to the police that they did not want to make a case and do not want a case to proceed then the police should respect the rights of the victim and drop the case.

That means that it's in the best interest of felons to threaten and intimidate their victim.

It also means that murderers will get off free since their victims will not want the case to proceed.

I have no beef with cases being prosecuted without forcing the victim to be seen giving the goahead.

However, it is utterly ridiculous that Swartz' case was treated as a felony, and with stacking the charges where you had to expect defense costs for the equivalent of three murders and a few rapes.
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John Fenderson (profile), 12 Jan 2014 @ 11:11am

Re:
I have no problem at all with people being upset because they do not believe he should have been charged

I think you might misunderstand the source of the upset. It isn't that he was charged (although the specific charges that were being proposed do, in themselves, represent a dramatic abuse of the CFAA -- the correct charge would have been "trespassing".)

The source of the upset was that he was harassed and bullied by the DOJ for purely political reasons to such an extent that it was clearly a factor in his decision to take his own life. This is even more egregious given that his actual offense was very minor.
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John Fenderson (profile), 12 Jan 2014 @ 11:14am

Re: Re:
I'm just curious -- what do you think is "our cause"?

If crying out against abuse of power by the DOJ is "stupid ranting," then we as a nation are truly doomed.
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Anonymous Coward, 12 Jan 2014 @ 11:58am

DOJ fixes
1. No Plea Bargain
2. Government Appointment Job. not Elected official
3. No party affiliation while a prosecutor
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Anonymous Coward, 12 Jan 2014 @ 4:37pm

Re: Re:
darryl just hates it when due process is enforced.
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Anonymous Coward, 13 Jan 2014 @ 5:56am

Re: Re: Re: Re:
Except intimidation is coercion. I think that's a little different. Also in many lesser crimes the state will ask if the victim wants to press charges. If the victim says "no", then the state drops the case. I see no reason why something of that sort couldn't have happened here. This particular case might require a little more care than the average day-to-day run-in on the street, but ultimately no punishment should come from no harm.
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Anonymous Coward, 13 Jan 2014 @ 7:07am

Won't go after bankers, won't go after people who -line under oath-, but they are happy to throw the book at people who try and take their power away...
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Anonymous Coward, 13 Jan 2014 @ 12:50pm

One incredible human being died and no one suffers the consequences?
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Anonymous Coward, 13 Jan 2014 @ 4:11pm

Re:
Without trying to sound uncompassionate, it does bear mentioning that he died by his own hand.
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Anonymous Coward, 13 Jan 2014 @ 8:01pm

Re: Re:
So he was in a depression, but the prosecutor just kept heaping on the charges. at first 4 years Jail, then 14, then 35 with a view to get a Guilty plea and all thru this All he had to accept was a 6 month sentence and a felony record.

The Prosecutor Managed to break Aaron's will to fight On.

Was It Ethical, Not At All.

If he Managed to get a plea bargin would it help the prosecutors political ambitions, Yes Certainly.

There is enough circumstantial evidence to justify an inquiry into that particular prosecutors office.

The Job of a prosecutor is to present the truth and get a lawful conviction, it is important no personal desires interfere with the presentation of the "truth".

Arron's actions in rejecting a Plea Deal is evidence that Arron Wanted to go to trial. The Prosecutors Desire to extract a guilty plea by piling on the charges shows a contempt for providing Aaron with his constitutional right to a court trial.

The Facts are hidden by the foul stench from the prosecutors office
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Anonymous Coward, 14 Jan 2014 @ 6:46am

"Arron's actions in rejecting a Plea Deal is evidence that Arron Wanted to go to trial. The Prosecutors Desire to extract a guilty plea by piling on the charges shows a contempt for providing Aaron with his constitutional right to a court trial."

This comment makes no sense. He wants a trial. A plea bargain is offered with fairly reasonable terms under the circumstances. He rejects the offer. Had he not died at his own hand, his case would have gone to trial, thus fulfilling what you believe was his wish.
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Michael Price, 14 Jan 2014 @ 8:31am

Re: The whole truth.
Keep dreaming.
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