Last week, Attorney General Eric Holder left no question about the Administration’s support of the abusive treatment of Aaron Swartz by US Attorney Carmen Ortiz and Deputy US Attorney Stephen Heymann. Heymann was previously linked to a suicide in another prosecution. We have discussed the abusive prosecution earlier and Swartz’s suicide after months of unrelenting threats and coercion. Holder heralded the treatment of Swartz as an example of the “good use of prosecutorial discretion.” Swartz’s girlfriend has come forward to denounce Holder and the Obama Administration for its misrepresentations in the case.
Ortiz previously tried to dampen criticism with a statement that misrepresented facts in the case.
Holder repeated his solemn obligation to prosecute crimes but that fervent belief in the rule of law was missing when Obama promised CIA officials that no one would be prosecuted for torture. It was missing when Holder and his aides found no ability to prosecute anyone for the torture program. Of course, torture is not just a federal crime but a war crime, but it did not rise to the level of releasing academic papers for free from a collection that MIT later released to the public for free.
Holder and Ortiz sought 35 years for Swartz and amended the charges to add new counts before his suicide.
In his March 6 testimony, Holder responded to a question for Republican Senator John Cornyn about Swartz’s prosecution. Most Democrats have remained silent in support of the Obama Administration. Holder insisted that the 18 month nightmare for Swartz was just good prosecution work on display. Holder repeated Ortiz’s claim that the prosecutors were just beside themselves trying to avoid a harsh punishment in the face of an unreasonable Swartz:
As I’ve talked to the people who have looked into this matter, these news reports about what he was actually facing is not consistent with what the interaction was between the government and Mr. Swartz. A plea offer was made to him of 3 months, before the indictment. This case could have been resolved with a plea of 3 months. After the indictment, an offer was made and he could plead and serve 4 months. Even after that, a plea offer was made, of a range of zero to 6 months, that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months. There was never any intention for him to go to jail for a period longer than 3, 4, potentially 5 month range.
As noted earlier, this ignores the fact that the Administration added charges and could have reached a plea without jail time or dropped charges. Instead, they demanded jail time for Swartz. Moreover, while Holder seems confused why people are mentioning 35 years, it was his department that crowed about the potential sentence when announcing its high-profile prosecution:
AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.
Swartz’s girlfriend issued a stinging rebuke:
“Eric Holder and the Department of Justice are clearly trying to mislead the Senate and the public. Holder claims that Aaron was only facing months in prison while Heymann and Ortiz were actively pursuing a penalty of 7 years if the case went to trial. If you believe you’re innocent, you should not be coerced into accepting a plea bargain that marks you as a felon for life, just because prosecutors want to boast about taking a scalp. The discrepancy between the plea deal and the amount of prison time prosecutors said they would pursue at trial violates the DOJ’s own guidelines in this regard. Holder is trying to engage in revisionist history at the same time he claims that the strict sentences pursued by prosecutors were a ‘good use of prosecutorial discretion.’
The missing prosecutorial discretion is when the Administration decided not to drop the charges when it became obvious that MIT decided the documents should be made free to the public. Yet, Holder believes radically overcharging a person who acted without desire for personal gain was “good prosecutorial discretion.” I mean, it is not like he did something minor like torture, right?