Holder Defends Swartz Abuse As Example Of Good Prosecutorial Discretion

holdereric220px-Aaron_Swartz_at_Boston_Wikipedia_Meetup,_2009-08-18_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?

Source: Techdirt

117 thoughts on “Holder Defends Swartz Abuse As Example Of Good Prosecutorial Discretion

  1. Maybe if he had tortured someone, Holder would have looked the other way and Mr. Swartz would still be alive! Disgusting.

  2. This is typical bureaucratic CYA actions. The loyalty is to “their” people and not justice. That is the reason for not prosecuting war criminals too. If they had done that to US citizens in a major way, they probably would have been forced to take action, but as long as it was non-US citizens, they feel they can get away with this.

  3. People who are blamed and punished are always scapegoats. We are all one (according to scientists ) An idiot could figure out the idiocity of war and who profits from it. (Us all). War is great for business- invest your children.

  4. This is just the typical double-speak of the political class of this country. It is only to deflect the immediate criticism and nothing more. They have learned people will just forget about it in three weeks because not enough people are concerned or motivated to speak out against their actions.

    Keep in mind that too many politicians or their appointed subordinates care nothing about individuals unless those individuals can benefit them politically or financially.

  5. Abominable …..

    I can’t wait for Obama supporters to come out and support Obama….. Or…. As usual they will say nothing unless its directed at detracting attention…. Or blaming some republican….

  6. Funny who Holder believes should be prosecuted. Certainly not the mega-banks. They are too big to jail. But he’ll go after little guys like Swartz and whistle-blowers with a vengeance.


    I agree. It IS disgusting!

  7. Add Bankers to the class of criminals the Obama administration will not prosecute. What a wonderful administration we have, torture, no problem, rob Billions $, no problem. Take documents that are later given away for free and we want 35 years of your life.

  8. Another case that warrants attention for similar reasons is the way the Holder/Obama DoJ is going after Barret Brown, the alleged public face of the online whistleblower and activist group “Anonymous.” His story is quite convoluted, but the bottom line is that this 31 year old is facing approximately 100 years in prison. Barrett Brown does not come across as the most likeable person one might meet, but I just read an article saying the prosecutors have added more charges because he sent a Tweet that somehow endangered national security. I am not into using Twitter, but it is hard to conceive how national security can be endangered in 140 characters.


    Google his name, and dozens of news stories about him pop up. That the FBI and DoJ are trying to shut him (and Anonymous) down is clear as daylight. He was recently sent for a mental exam, and was found competent to stand trial. No kidding. Reporter and best selling author meets the Dusky criteria. How amazing.

  9. What is so upsetting about this is abuses such as this are never addressed or condemned. The only way to get guys like this out is to discover some form of sexual harassment/depravity or embarassing scandal that they committed and they will be thrown out in a flash to save the credibility of their superiors.

  10. We have now entered The Twilight Zone. Cue the music. Look for Rod Serling to step around the corner any moment.

    The DoJ is now prosecuting, in the most aggressive way possible, those who uncover criminal conspiracies among government contractors and big companies. The Barret Brown prosecution is alleged by many observers to be the direct outgrowth of the HB Gary affair, when their internal emails were made public. In this post-Patriot Act world, to reveal wrongdoing is punishable by prison, or in some cases, to cause the death of the target.

    It is clear that Anonymous and Wikileaks have stepped on some very sensitive toes. When was the last time anyone ever heard of multiple governments spending millions trying to nail one guy who had consensual sex, but did not use a condom? AFIK, Sweden is the only country in the world in which casual sex without a condom is rape. How convenient.

  11. Obama’s War on Whistleblowers
    The president has been accused of allowing the Stuxnet leaks to help in the election, but his overarching policy has been extraordinarily tough on whistleblowing.
    —By Peter Van Buren
    Jun. 12, 2012

    This story first appeared on the TomDispatch website.

    White is black and down is up. Leaks that favor the president are shoveled out regardless of national security, while national security is twisted to pummel leaks that do not favor him. Watching their boss, bureaucrats act on their own, freelancing the punishment of whistleblowers, knowing their retaliatory actions will be condoned. The United States rains Hellfire missiles down on its enemies, with the president alone sitting in judgment of who will live and who will die by his hand.

    The issue of whether the White House leaked information to support the president’s reelection while crushing whistleblower leaks it disfavors shouldn’t be seen as just another O’Reilly v. Maddow sporting event. What lies at the nexus of Obama’s targeted drone killings, his self-serving leaks, and his aggressive prosecution of whistleblowers is a president who believes himself above the law, and seems convinced that he alone has a preternatural ability to determine right from wrong…

    On the Other Side of the Mirror

    The Obama administration has been cruelly and unusually punishing in its use of the 1917 Espionage Act to stomp on governmental leakers, truth-tellers, and whistleblowers whose disclosures do not support the president’s political ambitions. As Thomas Drake, himself a victim of Obama’s crusade against whistleblowers, told me, “This makes a mockery of the entire classification system, where political gain is now incentive for leaking and whistleblowing is incentive for prosecution.”

    The Obama administration has charged more people (six) under the Espionage Act for the alleged mishandling of classified information than all past presidencies combined. (Prior to Obama, there were only three such cases in American history, one being Daniel Ellsberg, of Nixon-era Pentagon Papers fame.) The most recent Espionage Act case is that of former CIA officer John Kiriakou, charged for allegedly disclosing classified information to journalists about the horrors of waterboarding. Meanwhile, his evil twin, former CIA officer Jose Rodriguez, has a best-selling book out bragging about the success of waterboarding and his own hand in the dirty work.

    Obama’s zeal in silencing leaks that don’t make him look like a superhero extends beyond the deployment of the Espionage Act into a complex legal tangle of retaliatory practices, life-destroying threats, on-the-job harassment, and firings. Lots of firings.

  12. Raff,

    Do you endorse the fact that Holder serves at the pleasure of the President and that if Obama is displeased with his service that he has the ability to replace him? And that any actions are imputed to the president…….


    Thanks for the heads up lead….. Wow….. I don’t tweet either….

  13. If this was 1946 and we were at the Nuremburg War Tribunals, Herr Holder would be in the dock for his conduct regarding Aaron and the statements Herr Holder made as quoted in this article. Google: The Judges Trial at Nuremburg. The 1933 Parallels are proceeding according to plan. Midway Bush saw the history of the Reichstag Fire and what could be done if there was a phony threat or exaggerated threat (then it was Commies now its Saudis with box cutters) and so after the Twin Towers he went forward with the Patriot Act and its progeny. Kiss your Constitution goodbye AmeriKa.

  14. “We have now entered The Twilight Zone. Cue the music. Look for Rod Serling to step around the corner any moment.”


    Just when we entered The Twilight Zone is a matter of perspective. 😉

  15. I don’t care how well-intended a politician is when they take office (and that’s always up for grabs anyway) give them a taste of that undiluted power and they do not want to give it up.

  16. Holder is an incompetent lawyer whose only skill is getting appointed to a job which he did not deserve .Holder has either ignored or intentionally violated most of the promises that President Obama made while campaigning for the presidency. Might we remind lacky Holder that Obama promised not to prosecute any citizens who were in compliance with a states medical marijuana laws; so why has Holder allowed rogue US attorneys like Melinda Haag to use the power of the federal government to shut down medical marijuana dispensaries in California which were licensed by the local communities and which were in full compliance with California state law.I certainly hope that President Obama will ask for the resignation of Attorney General Holder and replace him with a more professional attorney

  17. AP,

    What’s your feeling of Holder…. Do you think he’s just following orders…. Or that he is responsible all by himself….for his actions…. I value your input….

  18. I received some documents in response to a DOJ FOIA request, but there was nothing to indicate that the responsive documents were issued by the DOJ. When I asked for a stamp or a seal to indicate that they had been produced by the DOJ, I was told that they would have to consult with DOJ lawyers first. In the end, they refused to authenticate the documents.

    And then they went a step further and replaced the original report that I had questioned. They offered no explanation in the new document/report — it was as if the first report had never been issued. Poof. Gone. And with it went the data that I had questioned in the first place. Officially, anyway. No one who looks at the official report now will see the information that I was questioning.

    Smoke, mirrors, lies, obfuscation.

    Just a little story about our DOJ.

  19. Jomo,

    How do you reconcile the fact that Obama has the ability to fire holder at anytime, with cause, without reason….. If Holder is really rogue as you state…. Then it seems he should be fired…. Now, if Obama is satisfied with him…. Then… He’s stuck with him….

    Unlike Hitler, Stalin, Mussolini….. Holder does not risk being shot….. Just because the boss disagrees with him….. Now, a drone attack might just be a different story…..

  20. AY,

    The buck stops with Obama. With regard to Holder, he needs to show some courage or get out of the way.

    They’re hiding a domestic program, among other things, and will continue to lie, hide, overreach, etc. until they can’t. Eventually the chickens will come home to roost and it won’t be a good day for America.

    In the end, though, given our history? Immunity for everyone. Move forward, don’t look back… yada, yada, yada.

  21. Jury Nullifaction is one of the many major Tools Jefferson/Madison/Franklin & the boys left us all with to defend our nation from these Bush/Obama/Wallst type Tyrannt Aholes.

    If I was a cop now, I’d start looking the other way, if a judge or on a jury I wouldn’t convict anyone of any thing, no matter how bad the crime, & not until the Dem/Repub corrupt leaders are removed, & charged along with their Wallst co-conspriators are arrest, charged, jailed.

    In just one small US pollution reg change by Obama he was advised an estamated 9000 people a year will die yet he signed it anyway.

    As should be obvious to anyone paying attention Wallst/SC/London’s actions against the people of South/Central America, now Europe/Cyprus being looted/enslaved/murdered is a pre-planned attack & it’s already being rolled out here in the US.

    If we don’t get control back over the top of those transnational banks & their political puppets you will continue to be looted & abused.

  22. But AP,

    There are folks that say that Holder should be fired….. Why do you think Obama hasn’t fired Holder….

  23. Good prosecutorial discretion, eh?

    I guess this explains why he thinks the DOJ can’t prosecute anyone on Wall Street either.

    He’s either an idiot or he thinks everyone else is.

  24. Attorney General Eric Holder: If the President Does It, It’s Legal

    By John W. Whitehead

    March 18, 2013

    “I never thought I would see the day when a Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture and that acts that are merely cruel, inhuman and degrading are consistent with United States law and policy, that the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention, never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens. This disrespect for the rule of law is not only wrong, it is destructive.”—Eric Holder, June 2008 speech to the American Constitution Society


    Whitehead’s posting:

    Since the early days of our republic, the Attorney General (AG) of the United States has served as the chief lawyer for the government, entrusted with ensuring that the nation’s laws are faithfully carried out and holding government officials accountable to abiding by their oaths of office to “uphold and defend the Constitution.”

    Unfortunately, far from holding government officials accountable to abiding by the rule of law, the attorneys general of each successive administration have increasingly aided and abetted the Executive Branch in skirting and, more often than not, flouting the law altogether, justifying all manner of civil liberties and human rights violations and trampling the Constitution in the process, particularly the Fourth Amendment.

    No better example is there of the perversion of the office of the AG than its current occupant Eric Holder, who was appointed by President Obama in 2009. Hailed by civil liberties and watchdog groups alike for his pledge to “reverse the disastrous course that we have been on over the past few years” and usher in a new era of civil liberties under Obama, Holder has instead carried on the sorry tradition of his predecessors, going to great lengths to “justify” egregious government actions that can only be described as immoral, unjust and illegal.

    Indeed, Holder has managed to eclipse both John Ashcroft and Alberto Gonzalez, whose tenures under George W. Bush earned them constant reproach by Democrats and other left-leaning groups for justifying acts of torture, surveillance of American citizens and clandestine behavior by the government. Holder, however, has largely been given a free pass by these very same groups in much the same way that Obama has. The reason, according to former Senate investigator Paul D. Thacker, is that “Obama is a Democrat. And because he is a Democrat, he’s gotten a pass from many of the civil liberty and good-government groups who spent years watching President Bush’s every move like a hawk.”

    Despite getting a “pass” from those who would normally have been crying foul, during his time as attorney general, Holder has “made the Constitution scream”—that according to one of his detractors. The colorful description is apt. Some of the Justice Department’s (DOJ) “greatest hits” under Holder begin and end with his stalwart defense of the Obama administration’s growing powers, coming as they do at the expense of the Constitution.

    Moreover, as head of the DOJ, Holder’s domain is vast, spanning several law enforcement agencies, including the United States Marshals Service; FBI; Federal Bureau of Prisons; National Institute of Corrections; Bureau of Alcohol, Tobacco, Firearms and Explosives; Drug Enforcement Administration; and Office of the Inspector General (OIG), as well as the U.S. National Central Bureau for INTERPOL. To say that the agencies under Holder have struggled to abide by the rule of law is an understatement.

    The following are just some of the highlights of the dangerous philosophies embraced and advanced by Holder and his Justice Department.

    The military can detain anyone, including American citizens, it deems a threat to the country. Not only has the DOJ persisted in defending a provision of the National Defense Authorization Act that sanctions indefinite detentions of Americans, but it has also blasted the federal judge who ruled the NDAA to be vague and chilling as overstepping the court’s authority and infringing on Obama’s power to act as Commander in Chief.

    Presidential kill lists and drone killings are fine as long as the president thinks someone might have terrorist connections. Holder has gone to great lengths to defend Obama’s use of drones to target and kill American citizens, even on U.S. soil, as legally justifiable. In fact, a leaked DOJ memo suggests that the President has the power to murder any American citizen the world over, so long as he has a feeling that they might, at some point in the future, pose a threat to the United States.

    The federal government has the right to seize the private property—cash, real estate, cars and other assets—of those suspected of being “connected” to criminal activity, whether or not the suspect is actually guilty. The government actually collects billions of dollars every year through this asset-forfeiture system, which it frequently divvies up with local law enforcement officials, a practice fully supported by the DOJ and a clear incentive for the government to carry out more of these “takings.”

    Warrantless electronic surveillance of Americans’ telephone, email and Facebook accounts is not only permissible but legal. According to court documents, more Americans have had their electronic communications spied on as a result of DOJ orders for phone, email and Internet information—40,000 people alone in 2011—and that doesn’t even begin to take into account agencies outside Holder’s purview, terrorism investigations or requests by state and local law enforcement officials.

    Judicial review is far from necessary. Moreover, while it is legal for the government to use National Security Letters (NSL) to get detailed information on Americans’ finances and communications without oversight from a judge, it is illegal to challenge the authority of the Justice Department. Administrative subpoenas or NSLs—convenient substitutes for court-sanctioned warrants that require only a government official’s signature in order to force virtually all businesses to hand over sensitive customer information—have become a popular method of bypassing the Fourth Amendment and a vital tool for the DOJ’s various agencies. Incredibly, the DOJ actually sued a telecommunications company for daring to challenge the FBI’s secret order, lacking in judicial oversight, that it relinquish information about its customers. The FBI alone has issued more than 300,000 NSLs since 2000.

    Due process and judicial process are not the same. In one of his earliest attempts to justify targeted assassinations of American citizens by the president, Holder declared in a March 5, 2012 speech at the Northwestern University School of Law that “The Constitution guarantees due process, not judicial process.” What Holder was attempting to suggest is that the Fifth Amendment’s assurance that “No person shall be deprived of life, liberty, or property without due process of law” does not necessarily involve having one’s day in court and all that that entails—it simply means that someone, the president for example, should review and be satisfied by the facts before ordering someone’s death. As one history professor warned, “Insert even a sliver of difference between due process and judicial process, and you convert liberty into tyranny. Holder, sworn to uphold the laws of the United States, is the mouthpiece of that tyranny, and Obama is its self-appointed judge, jury and executioner.”

    Government whistleblowers will be bankrupted, blacklisted, blackballed and in some cases banished. As AG, Holder has reportedly prosecuted more government officials for alleged leaks than all his predecessors combined. Relying on the World War I-era Espionage Act, the DOJ has launched an all-out campaign to roust out, prosecute, and imprison government whistleblowers for exposing government corruption, incompetence, and greed. Intelligence analyst Bradley Manning is merely one in a long line of so-called “enemies of the state” to feel the Obama administration’s wrath for daring to publicly criticize its policies by leaking information to the media.

    Government transparency is important unless government officials are busy, can stonewall, redact, obfuscate or lie about the details, are able to make the case that they are exempt from disclosure or that it interferes with national security. As Slate reports, “President Obama promised transparency and open government. He failed miserably.” Not only has Holder proven to be far less transparent than any of his predecessors, however, but his DOJ has done everything in its power to block access to information, even in matters where that information was already known. For example, when asked to explain the “Fast and Furious” debacle in which government operatives trafficked guns to Mexican drug lords, DOJ officials—unaware that much of the facts had already been revealed—“responded with false and misleading information that violated federal law.” When pressed for further information, the Justice Department retracted its initial response and refused to say anything more.

    When it comes to Wall Street, justice is not blind. As revealed in a PBS Frontline report, the Obama administration has driven federal prosecutions of financial crimes down to a two-decade low, buoyed in its blindness to corporate corruption by campaign donations from Wall Street banks (whom Holder has determined are too big to prosecute anyhow) and staffers whose lucrative financial portfolios came about as a result of chummy relationships with financiers. As David Sirota points outs:

    After watching the [PBS] piece, you will understand that the word “justice” belongs in quotes thanks to an Obama administration that has made a mockery of the name of a once hallowed executive department… Rooted in historical comparison, it contrasts how the Reagan administration prosecuted thousands of bankers after the now-quaint-looking S&L scandal with how the Obama administration betrayed the president’s explicit promise to “hold Wall Street accountable” and refused to prosecute a single banker connected to 2008′s apocalyptic financial meltdown.

    Not all suspects should have the right to remain silent. In 2010, Holder began floating the idea that Miranda rights—which require that a suspect be informed of his right to remain silent—should be modified depending on the circumstances. Curiously, the Supreme Court is presently reviewing a case addressing a similar question, namely whether a suspect’s silence equates to an admission of guilt.

    Clearly, it’s not the Constitution that Eric Holder is safeguarding but the power of the presidency. Without a doubt, Holder has taken as his mantra Nixon’s mantra that “When the President does it, that means it is not illegal.” It may be that the time has come to create a “non-political” and “independent” Attorney General, one who would serve the interests of the public by upholding the rule of law rather than justifying the whims of the President.

  25. “It may be that the time has come to create a ‘non-political’ and ‘independent’ Attorney General, one who would serve the interests of the public by upholding the rule of law rather than justifying the whims of the President.”

    Funny, but recently that very idea has been rumbling around the back of brain as a column idea. Still might write it. Another great catch, ap.

  26. AY, Whitehead’s response is the answer…

    “Clearly, it’s not the Constitution that Eric Holder is safeguarding but the power of the presidency. Without a doubt, Holder has taken as his mantra Nixon’s mantra that “When the President does it, that means it is not illegal.” It may be that the time has come to create a “non-political” and “independent” Attorney General, one who would serve the interests of the public by upholding the rule of law rather than justifying the whims of the President.” -John Whitehead

  27. “It may be that the time has come to create a ‘non-political’ and ‘independent’ Attorney General, one who would serve the interests of the public by upholding the rule of law rather than justifying the whims of the President.” -John Whitehead

    Gene H.,

    It’s time…

  28. More “good prosecutorial discretion” . . .

    “In 2010, querying a public AT&T database yielded over 114,000 email address for iPad owners who were subscribed to the carrier. One of the people who found these emails, Andrew ‘weev’ Auernheimer, sent them to a news site to publicize AT&T’s security flaw. He later ended up in court for his actions. Auernheimer was found guilty, and today he was sentenced to 41 months in prison. ‘Following his release from prison, Auernheimer will be subject to three years of supervised release. Auernheimer and co-defendant Daniel Spitler were also ordered to pay $73,000 in restitution to AT&T. (Spitler pled guilty in 2011.) The pre-sentencing report prepared by prosecutors recommended four years in federal prison for Auernheimer.’ A journalist watching the sentencing said, ‘I felt like I was watching a witch trial as prosecutors admitted they didn’t understand computers.'”


    Has links to source materials.

  29. Thanks for the link, Gene H.

    A journalist watching the sentencing said, ‘I felt like I was watching a witch trial as prosecutors admitted they didn’t understand computers.’” (from Gene H.’s posting)

    Witch trials… and witch hunts…

  30. Holder is a disgrace but he is Obama’s choice. As a result, both he and Obama are responsible for a DOJ that prosecutes whistleblowers, activits and reporters but allows torturors, financial criminals like the banksters and wars criminals to get off scott free, not even an investigation.

  31. Gene, Elaine, AP, Justice Holmes,

    Thanks….. Wow….

    Gene… That is something… The government can do it…. But if you do it and leak it….. You get wizzed on for the leak….

  32. I want to echo AY’s “Wow” comment.
    That link to the 41 month sentence is the exclamation point on the Swartz case. Swartz was just the tip of an iceberg.

  33. anonymously posted,
    I have a rule of thumb. When I find something online and want to make sure it is not “disappeared,” downloading the whole web page is a good idea. Also learn to use the screen grab feature. It has come in handy many times. I have downloaded pages, saved as “web page entire,” but when I go back to check on the original document, it is gone. Heh! I still have it.

    Many activist bloggers do this, then post old and new (revised or edited) documents side by side for comparison.

  34. Best commentary in 10 years in my opinion: Go to http://www.C-Span.org and in the search box type “Thomas Drake, National Press Club” aired on 3-15-13. It is about an hour total but well worth it! Anyone who is a fan of this site will love this video.

  35. On the other hand, just look at all those thieving bankers who flouted the law, brought the economy crashing down and have literally stolen people’s homes by using perjured documents.

    I love to see bankers arrested in their penthouse suites and perp-walked to jail…..oh wait……never mind.

    If whistleblowers only get fired, they can consider themselves lucky. They could end up dead like Swartz or facing 100 years like Barret Brown.

  36. “If whistleblowers only get fired, they can consider themselves lucky. They could end up dead like Swartz or facing 100 years like Barret Brown.”

    The government has other means of destroying people…

  37. It’s noteworthy that Holder feels the need to revisit the Swartz matter. The black hole formerly know as rising star Ortiz continues to draw fire for her questionable prosecutions and plea deals … for instance:

    “Yesterday, former Chelsea Housing Authority Director Michael McLaughlin pleaded guilty to shafting both taxpayers and Chelsea’s poor by knowingly lying about his salary, which ballooned from $77,000 in 2000 to $366,000 in 2011.

    His motive, said his lawyer: money.

    His jail time: possibly none, according to the plea deal McLaughlin worked out with Ortiz’s office.” (Boston Herald, Margery Eagan, February 20, 2013)
    From the Boston Globe:

    “Milton police on March 16 responded to a small demonstration by people who went to the home of US Attorney Carmen Ortiz to protest her handling of the Aaron Swartz case. The protesters, who identified with the Occupy movement, placed “Wanted” posters bearing Ortiz’s name near her Milton home and left a cake on the property with the words “Justice for Aaron” written in frosting, according to Deputy Police Chief Charles Paris. Police sent the cake to the FBI, he said. Ortiz said last week that she respected the rights of individuals to express views, but added that protesters wearing masks in her neighborhood frightened her children and neighbors. Swartz, who was charged with illegally obtaining documents from protected computers, committed suicide in January.” (Dave Eisenstadter March 17, 2013)

    But I suspect what has really got Holder and Obama going is the following also from the Boston Globe:

    Aaron Swartz’s estate seeks release of documents

    The estate of Aaron Swartz, the Internet activist who was charged with hacking by the federal government and later committed suicide, filed a ­motion in federal court in ­Boston Friday to allow release of documents in the case that has generated national controversy and raised questions over the US attorney’s aggressive pursuit of a stiff sentence.” (Derek J. Anderson, March 16, 2013)


    Holding hands with CIA tortures while begging CEOs to let him sit on their gold encrusted toilets, Holder fails to take note of the music playing throughout the halls of justice.

  38. I wonder when people are going to wake up to the fact that President Obama does not sufficiently respect civil liberties or privacy? Many people almost worship him, especially where I live.

    It is rather odd how you see cars around here with Peace logos, freedom, fight oppression bumper stickers all surrounded by Obama’s likeness and campaign stickers. He must have had some great marketing wonks in his election campaign to have hoodwinked these people as greatly as he did. He takes away personal liberties, his administration jails whistleblowers and suppresses people who question him or his policies, talks about assasinating American citizens and despite all this, many of his supporters proffer that he supports their causes, or at the very least counter questions as to his actions with “Yes, But…”

    So continue your adoration of your Dear Leader, but be careful of what you wish for.

    And you might as well shake it out now. Call me a racist like I was previously in this blog for criticising him, that I am just a republican stooge, or whatever other things you might do to attack anyone that questions his policies, then go look in the mirror and ask yourself how much you really believe “Dissent is Patriotic”

  39. Why Goldman Sachs, Other Wall Street Titans Are Not Being Prosecuted
    The Justice Department’s decision not to prosecute Goldman Sachs in a financial-fraud probe is another sign of the cronyism that has kept Attorney General Eric Holder from taking action against other big Wall Street firms, says Peter Schweizer.
    Aug 14, 2012

    On Thursday the Department of Justice announced it will not prosecute Goldman Sachs or any of its employees in a financial-fraud probe.

    The news is likely to raise the ire of the political left and right, both of which have highlighted one of the most inconvenient facts of Attorney General Eric Holder’s Justice Department: despite the Obama administration’s promises to clean up Wall Street in the wake of America’s worst financial crisis, there has not been a single criminal charge filed by the federal government against any top executive of the elite financial institutions.

    Why is that? In a word: cronyism.

    Take Goldman Sachs, for example. Thursday’s announcement that there will be no prosecutions should hardly come as a surprise. In 2008, Goldman Sachs employees were among Barack Obama’s top campaign contributors, giving a combined $1,013,091. Eric Holder’s former law firm, Covington & Burling, also counts Goldman Sachs as one of its clients. Furthermore, in April 2011, when the Senate Permanent Subcommittee on Investigations issued a scathing report detailing Goldman’s suspicious Abacus deal, several Goldman executives and their families began flooding Obama campaign coffers with donations, some giving the maximum $35,800.

    That’s not to say Holder’s Justice Department hasn’t gone after any financial fraudsters. But the individuals the DOJ’s “Financial Fraud Enforcement Task Force” has placed in its prosecutorial crosshairs seem shockingly small compared with the Wall Street titans the Obama administration promised to bring to justice.

  40. Insight: Top Justice officials connected to mortgage banks
    By Scot J. Paltrow
    Jan 20, 2012

    Reuters) – U.S. Attorney General Eric Holder and Lanny Breuer, head of the Justice Department’s criminal division, were partners for years at a Washington law firm that represented a Who’s Who of big banks and other companies at the center of alleged foreclosure fraud, a Reuters inquiry shows.

    The firm, Covington & Burling, is one of Washington’s biggest white shoe law firms. Law professors and other federal ethics experts said that federal conflict of interest rules required Holder and Breuer to recuse themselves from any Justice Department decisions relating to law firm clients they personally had done work for.

    Both the Justice Department and Covington declined to say if either official had personally worked on matters for the big mortgage industry clients. Justice Department spokeswoman Tracy Schmaler said Holder and Breuer had complied fully with conflict of interest regulations, but she declined to say if they had recused themselves from any matters related to the former clients.

    Reuters reported in December that under Holder and Breuer, the Justice Department hasn’t brought any criminal cases against big banks or other companies involved in mortgage servicing, even though copious evidence has surfaced of apparent criminal violations in foreclosure cases.

    The evidence, including records from federal and state courts and local clerks’ offices around the country, shows widespread forgery, perjury, obstruction of justice, and illegal foreclosures on the homes of thousands of active-duty military personnel.

    In recent weeks the Justice Department has come under renewed pressure from members of Congress, state and local officials and homeowners’ lawyers to open a wide-ranging criminal investigation of mortgage servicers, the biggest of which have been Covington clients. So far Justice officials haven’t responded publicly to any of the requests.

    While Holder and Breuer were partners at Covington, the firm’s clients included the four largest U.S. banks – Bank of America, Citigroup, JP Morgan Chase and Wells Fargo & Co – as well as at least one other bank that is among the 10 largest mortgage servicers.

  41. According to investigative reporters whose material I read, this is the least transparent administration in memory. More so than even the Nixon administration. No administration has ever managed to prevent leaks or gossip from the inside like this one.

  42. All this talk about Obama and Holder just can’t be true. Didn’t Obama get a Peace Prize? I went to a speech in Idaho in February of 2008. I went because my brother talked about how Obama really impressed him. I heard a pied piper. I have never heard a crowd cheer so loud for anybody. The masses following and still defending him are truly astounding. Why let facts get in the way, just turn on the tape recording from 2008 when he promised a new way of doing business.

    We suffer today and will likely suffer in years to come due to his incompetence. But I do believe that history will not be kind to Mr. O. the man gets a peace prize then develops a kill list. he promises to close Gitmo only to keep it open. He promises bankers will pay for the mess they caused when what he really meant was we will make sure bankers make a profit and we pay for the mess they caused.

    I would like to hear someone that still supports Mr O explain their support.

  43. Paul wrote:
    “I would like to hear someone that still supports Mr O explain their support.”
    They will begin with “Yes, but…”

  44. Yes, but Obama is not responsible for Eric Holders actions. I never really cared for Eric. The President is trying to take care of other things. What’s more important right now is women’s issues and gun control. They are what concern me the most.

  45. Has anyone ever supported 100% of everything any politician, any political party or any group does? It’s usually voting for the candidate or party that is the closest to one’s views – not absolute 100% support of everything. Presidents are supposed to serve the entire nation, even the Americans that didn’t vote for them – that’s a tricky line to walk and he can’t please everybody on every issue!

  46. Partisan Hack,

    Obama isn’t responsible for Eric Holder’s actions? He’s his boss. He can always replace appointees who aren’t doing a good job.

  47. Yes, but Ross, Eric is not doing what Obama supports. Don’t you see that. Even lincoln was not liked by everybody.

  48. This Administration has decided not to bring torturers and corrupt bankers who committed fraud and caused the financial meltdown of this country to justice–but it goes after whistle-blowers with a vengeance. What kind of leadership is that?

  49. “Yes, but Obama is not responsible for Eric Holders actions.”

    Bullshit. Plain and simple. And if you want to argue? I’ve got two words for you: respondeat superior. Obama hired him, Obama can fire him, Obama dictates the course for the DOJ as they are part of the Executive branch. Obama is as responsible for Holder as if he conducted the actions of Holder himself absent Holder acting outside the purview of his agency – which he isn’t.

  50. Partisan hack, The buck does stop with Obama. I would say women’s issues, the 47% tape and the republican attempts at voter suppression decided the 2012 election in Obama’s favor. If Rand Paul is the republican nominee, women’s issue will take center stage again. Yesterday, he said that he is introducing a “personhood” bill. Glenn Greenwald called it horrendous.

  51. All good points and in total agreement with you as to the DOJ not enforcing laws against torture, etc. and generally having contempt for the rule of law. If the GOP had won would they have been better or worse? They essentially controlled all three branches of government for 4 years and “chose” not to comply with the rule of law. If Obama allows the Bush policies to stand he may be viewed worse than Bush on some levels. The Obama DOJ chose not to enforce gay discrimination (as unconstitutional) it seems they could do the same on torture, indefinite detention, CoinTelPro, etc. and would likely win any subsequent lawsuits on constitutional grounds.

  52. Gene H. 1, March 18, 2013 at 3:20 pm

    “Yes, but Obama is not responsible for Eric Holders actions.”

    Bullshit. Plain and simple.


    Telling it like it is…

  53. While I vigorously defended the prosecutor on previous threads on our blog, this type of rhetorical overkill by Holder is getting under my craw. Clearly this kid was subjected to more pressure than the good AG suggests and his defense of his employee rings hollow to me. I was more inclined to accept the trial prosecutor’s word that reasonable plea offers were made and that no one really expected this kid to serve more than a month or two in jail. This orchestrated comment by Holder makes me believe there is more here than meets the eye and my skeptical radar just turned on. If all is at he says it is why is he leaping to the ramparts now? Sometimes who defends you and when they do it is just as important as how they defend you.

  54. Holder (like the Bush AGs) took an oath of office to “preserve, protect and defend the Constitution of the United States” and any priorities Obama set for his attorney general are supposed to circumscribe the U.S. Constitution.
    That’s the bigger problem in my view: viewing the U.S. Constitution (a wartime charter, designed to be followed during wartime) as though it is optional. There is a total disregard by both parties.

  55. G.Mason 1, March 18, 2013 at 4:21 pm

    Obama winning the peace prize was a complete farce


    Theater of the Absurd comes to mind…

  56. The Attorney General of the United States serves at the pleasure of the President. He is not a civil service employee. If Obama wanted him gone, he would be cleaning out his desk within an hour. He needs to use Donald Trump’s famous two words in this case. Naturally, that is not going to happen. I had such high hopes for the man.

    When he said big banks cannot be prosecuted because they are too big to fail, I knew then what he was. Excuse me, Eric, but bank presidents put their pants on one leg at a time, same as the lowest drug dealer. We can invade countries like Panama and Iraq in order to arrest the Presidents of those countries, but we can’t go down to Wall Street and slap a set of Smith & Wesson bracelets on some bank employees?

  57. There have been previous blogs on this site that pointed out Bernie Madoff did go to jail – because he ripped off the rich and powerful – not a factory worker’s 401K plan (devaluing the stock market). Also some of the lower level interrogators, prison guards, whistleblowers, etc have gone to prison but the DOJ torture attorneys haven’t even been disbarred or charged with war crimes – one is now a federal judge. To the best of my knowledge torture hoodies and jumper cables aren’t part of a soldier’s gear – so who supplied the torture tools and training?

  58. Otteray Scribe, here’s how to endanger the national security in 140 characters:

    If you tell the truth about what goes on here, you’ll be hurt.
    The corruption is so efficient, “the cover-up veil” cannot be pierced.
    Submission is the only alternative.

  59. Malisha,
    ‘Twas ever thus. Anyone recall the hit on CIA operative and drug smuggler pilot Barry Seal on February 19, 1986? A key informant about to testify about some Very Important People has no bodyguard and not placed in a safe house? That never did past the smell test.


    Following Barry Seal’s murder, William J. Guste, Jr., Attorney General of Louisiana wrote an official letter to (then) Attorney General Edwin Meese. The letter, to say the least, was an epic rant. Copy of the letter is at the link below.

    Mr. Guste might as well have been talking to himself.

  60. OT and not a surprise:

    ‘Gitmo created more terrorists than we could’ve ever imagined’

    Published time: March 18, 2013 12:50



    BN: I feel a lot of regret and remorse for what I took part in. The fact is, I’ve never used the old say ‘I was just following orders.’ I’m guilty of what I’m guilty of. And the fact is that when whoever opened the camp decided to open Guantanamo , they knew from the go that it was wrong, it was illegal and it was a violation of human rights, and the fact is that it needs to be closed.

    Detainees in orange jumpsuits sit in a holding area under the watchful eyes of military police during in-processing to the temporary detention facility at Camp X-Ray of Naval Base Guantanamo Bay in this January 11, 2002 file photograph. (Reuters/Stringer/Files)
    Detainees in orange jumpsuits sit in a holding area under the watchful eyes of military police during in-processing to the temporary detention facility at Camp X-Ray of Naval Base Guantanamo Bay in this January 11, 2002 file photograph. (Reuters/Stringer/Files)

    I’ve tried to take something very negative in my life and tried to turn it into something positive and do some good. And hopefully by coming forward – by a lot of us that have come forward, you know- we put a lot of risk by coming forward – that it does make a difference.

    And hopefully eventually Guantanamo will be closed and a lot of these detainees can go home and the guilty ones can be tried and sentenced…

    RT: Do you think you’re helping this, because this case has not been covered a lot in mainstream media (Something you touched on a little bit earlier)? Do you think people are listening?

    BN: I think it depends. I really believe that if we had a Republican president it would be a lot more in the mainstream media. The issue of Guantanamo goes through flurries where it would be real hot around the anniversary and everyone wants to talk about it or if somebody dies they want to talk about it. You know, at the beginning there was a lot of media attention once some of it did become public but it has kind of died down. I think a lot of it is that government is very good at spinning it, making it look like a straight place.

    RT: What is the alternative though – if you have terror suspects or people who are charged with atrocities, is there an alternative to something like Guantanamo? Isn’t the world a safer place for it?

    BN: No. I really believe Guantanamo has created more true terrorists around the world then we’ve gotten rid of. The fact is that we’ve held a lot of innocent people there and the fact is there are truly guilty people there that need to be dealt with. But we have a federal court system that has proven time and time over that we can try true terrorists and sentence them to whether it’s you know by death or life imprisonment in super max prison.

    RT: What is the alternative though – if you have terror suspects or people who are charged with atrocities, is there an alternative to something like Guantanamo? Isn’t the world a safer place for it?

    BN: No. I really believe Guantanamo has created more true terrorists around the world then we’ve gotten rid of. The fact is that we’ve held a lot of innocent people there and the fact is there are truly guilty people there that need to be dealt with. But we have a federal court system that has proven time and time over that we can try true terrorists and sentence them to whether it’s you know by death or life imprisonment in super max prison.

    The fact is the military commission is a kangaroo court – a lot of the stuff they went over, the federal court system has already rules intact for. They’ve spent a whole week under…well, once Khalid Sheikh Mohammed, he was allowed to wear camouflage. You know federal court has rules of what you’re allowed to wear or not wear in a courts system. It is a mockery.

    The fact is they’ll never bring him into a federal court system because a lot of the information they have gotten has been gotten under the use of torture, so it is inadmissible in federal courts system.

    But we’ve dropped the ball. We have a system here. We have an opportunity to show the world that our system and our way of life actually works. But we dropped the ball we’ve created more terrorist and enemies around the world than we could have ever imagined.

  61. A couple of posters have touched on an aspect of this case that I see as being central but part of a government policy that is not linked/apparent on its face.

    AP’s posting at 1:15pm: “Clearly, it’s not the Constitution that Eric Holder is safeguarding but the power of the presidency. Without a doubt, Holder has taken as his mantra Nixon’s mantra that “When the President does it, that means it is not illegal.””

    Blouise’s posting at 2:21: “”But I suspect what has really got Holder and Obama going is the following also from the Boston Globe:
    “Aaron Swartz’s estate seeks release of documents””

    There is a shadow war going on for control of the content and use of the Internet on the one hand while the Obama administration works to consolidate the ‘unitary executive’ on the other. I see both aims working in parallel in the Swartz case.

    The Federal government, specifically the security arm, is now in charge of policing the Internet regarding any alleged infractions it chooses to pursue under the overly broad provisions of various laws passed since the late 80’s as well as the

    This acts to not only consolidate presidential authority but to protect corporate interests. This also makes it easy to find and prosecute whistle-blowers. A whistle-blower hasn’t got a chance with the full compliment of Federal law enforcement and investigative units arrayed against them. It’s about keeping secrets, controlling the Internet and protecting corporations.

    The Secret Service took over the Swartz investigation. That’s one of the reasons the DOJ doesn’t want to honor any FOIA requests by the family, to conceal the extent of cooperation among Federal agencies in the investigation and prosecution of Arron Swartz. Who knows where that breadcrumb trail might meander?

    From Emptywheel article linked below:
    “According to the Secret Service, they get involved in investigations with:

    •Significant economic or community impact
    •Participation of organized criminal groups involving multiple districts or transnational organizations
    •Use of schemes involving new technology

    Downloading scholarly articles is none of those things.”

    “Before MIT and Cambridge Cops Arrested Aaron Swartz, Secret Service Took Over the Investigation”

    This is part of the expanded role for the SS granted by the US Patriot Act:

  62. OS Excellent links. If I had a dollar for every witness that ended up dead before having a chance to testify against the rich and powerful….

  63. Several comments above, Ross references the C-SPAN show on Thomas Drake the whistleblower which ran on March 15th. This can still be viewed by going to C-Span.org and looking up the recent live shows. This Drake guy was an NSA (National Security Agency) person of some vintage who was prosecuted for disclosing corruption and fraud. He is very articulate in this interview with the Press corp.

    We are on a sailing ship called the AmeriKa. We are sailing into a typhoon and need to come about. ” All hands on deck. Prepare to come-about…..”.

  64. I can’t find the post but it essentially went like this…. The banksters get off ith out prosecution because they screwed the little guy and the government bails them out because they are to big to fail…. And Holder won’t prosecute them because the SOL has run…. But because Madoff screwed the rich and famous he essentially gets life….. Makes sense to me….

  65. AP,

    Think about it.. We got incensed that someone crashed planes in the World Trade Centers….. So we took revenge under the Bush League…. So they, the supposed terrorists are taking action because we continually take action…. With the drones….

  66. I read BarkinDog’s comments about Thomas Drake and looked him up on wikipedia, a found a part of the article to be quite applicable to Mr Swartz’ case.

    “…At the July sentencing hearing the presiding judge, Richard D. Bennett of the Federal District Court, issued harsh words for the government, saying that it was “unconscionable” to charge a defendant [Thomas Drake] with a list of serious crimes that could have resulted in 35 years in prison only to drop all of the major charges on the eve of trial. The judge also rejected the government’s request for a large fine noting that Drake had been financially devastated, losing his $154,600 job at the NSA and his pension.”

    and still, the railroading of certain defendants continues.

  67. the office of the attorney general has become a rubber stamp for anything the president at the time wishes to do.

    time for a change

  68. This is the same AG who found his AUSA’s to be straightshooters and above reproach when they withheld Bady material in the Ted Stevens case. (The judge found them in contempt I believe). Another political hack with a law degree.

  69. seamus, ol’ bean, you hit the nail on the head with “Another political hack with a law degree.” 05% lawyer, 95% politician, 100% vile.

  70. American Library Association

    James Madison Award

    2013 Winner(s)
    Aaron Swartz
    Before his untimely death in January, Swartz was an outspoken advocate for public participation in government and unrestricted access to peer-reviewed scholarly articles. Swartz was a co-founder of Demand Progress, an advocacy group that organizes people to take action on civil liberties and government reform issues. Swartz was also a leader in the national campaign to prevent the passing of the Stop Online Piracy Act, a bill that would have diminished critical online legal protections.

  71. Darren Smith
    “Yes but…”

    Ah… Apathetic Seattle… The ‘Yes but’ crowd…

    I’ve lost a few friends to the ‘Yes but’, syndrome. They didn’t like me asking them why the Government thinks they need to be tracked on electronic communications… “What have you done that makes the Government suspect that you have ties to terrorism that warrants you being tracked?”

    They roll out that ‘Yes but’ carpet.

    But it’s everybody…
    But I have nothing to hide…
    But there’s so much info it’s basically useless…

    I find at every turn I’m repeating the original question. “O.K. and what have YOU done to warrant such a search?” They don’t care… Obama won and the “OTHER GUY” didn’t. I especially like it when they say, “Can you imagine what a Romney/Ryan would do?” I counter, “Yes. Can you imagine why the US Government is tracking you now?”

    “Yes but…”

  72. Bruce 1, March 18, 2013 at 11:53 am

    How do you like the obummer administration now?

    the real question is when are people like you going to wake up and realize not one president since eisenhower has cared about the people. if they did none of this crap would be happening… they are all bought and owned by the same people sending your kids to fight their wars , dumbing down your kids education, and using your tax money to enslave you…

    ever wonder when and how did billionaires and multi millionaires managed to get into offices that were put into place for the people? ever wonder how and where they get all the money to buy specialized military weapons while shutting down schools, senior centers, youth centers, food pantries and the like? stop blaming obummer he isnt doing anything all those before him have done… WHAT THEIR MASTERS TELL THEM. same as you..

  73. Is Eric Holder from New York? He looks New York. He acts like a Yorkie–cant keep his mouth shut on an issue that he did not need to go near. Obama needs to make him an Ambassador or something and find another A.G. We dont need this holdover from the first term. Holder is by far Obama’s worst appointment. Ortis or Otis or whatever her name is should go be a divorce lawyer. Otis and Holder, sittin in a tree…..

  74. I knew Aaron. Well, I knew him online. Have for years.

    So incredibly sad he took his life. But I just don’t believe it was because of this case, or how the prosecutors handled it. It’s wrong to play this kind of blame game, because nothing good comes of it.

    We don’t know why Aaron did what he did. We do know he broke the law. We also know that the longest prison terms being bandied about were absurd, but letting him off completely wasn’t necessarily reasonable, either.

    I don’t think we’re honoring Aaron by indulging in witch hunts.

  75. Adding to what Gene H. posted yesterday:


    “Hacker Who Revealed AT&T Security Flaw Gets 3.5 Years in Prison”

    “A hacker who leaked email addresses from an AT&T web server to a journalist in an effort to expose the company’s security vulnerabilities has been sentenced to three-and-a-half years in prison. Twenty-seven-year-old Andrew Auernheimer, nicknamed “Weev,” found a flaw in AT&T’s server in 2010 that allowed him to gather 114,000 email addresses of iPad users. He gave the information to the website Gawker, which posted a redacted version. After a federal probe, Auernheimer was convicted of identity theft and conspiracy to access a computer without authorization. On top of the prison term, he has been ordered to undergo three years of supervised release and pay more than $73,000 in restitution to AT&T. He was charged under the controversial Computer Fraud and Abuse Act, the same law used by federal prosecutors to target the late cyber-activist Aaron Swartz, who committed suicide in January just weeks before his trial for downloading a trove of academic articles.

    Last week, Reuters social media editor Matthew Keys was indicted under the same law. Keys is accused of providing login information to the hacker group Anonymous that allowed them to alter the text of a headline on the website of the Los Angeles Times. Keys, who is 26, could face up to 25 years in prison.”


    The Secret Service took over the Swartz investigation. That’s one of the reasons the DOJ doesn’t want to honor any FOIA requests by the family, to conceal the extent of cooperation among Federal agencies in the investigation and prosecution of Arron Swartz. Who knows where that breadcrumb trail might meander? -lottakatz

    Regarding “where that breadcrumb trail might meander”, I’d so love to know…

  76. Shelley Powers,
    Please accept my sincere condolences on the loss of your long time friend, Aaron. That kind of loss, in that manner, is a terrible thing.

    Suicide is seldom driven by a single factor. Suicide almost always has multiple factors leading to the final act, but in almost every case, there is always that one last straw “that broke the Camel’s back.” It may be that he was already vulnerable when he was arrested and charged, but it is the charges and they way they were handled by the prosecutors that is the reason for our concern.

    As for people examining the circumstances surrounding his death, that is perfectly legitimate. This is a law blog, hosted by a law professor. Many of the contributors are attorneys; however, there are regular contributors who come from other fields as well. Regulars in this thread alone include experts in mental health, law enforcement, forensic science, and private investigations to name a few. What better group to discuss the prosecution’s handling of Aaron’s case?

    No death should go unnoticed. We owe that to the deceased. No one here is apologizing for illegal or criminal activity. On the other hand, no one supports sentences that are totally disproportionate to the alleged illegal activity. Nor do we condone illegal or unethical behavior on the part of the attorney’s involved, no matter whether they sit at the prosecution or defense tables.

    To add one thing more, disproportionate sentences cut both ways. Some sentences are ridiculously light or non-existent. For a high profile example of that, Scooter Libby never spent a night in jail for compromising national security and outing a covert CIA agent. He was given a pardon the other day, wiping his conviction away as though it had never happened. At the same time Barrett Brown is looking at a possible 100 year sentence if convicted on all charges. Barrett Brown has a zero chance of being pardoned. Aaron Swartz and Barry Seal are dead. Those are just some we know about. It is likely there are others we don’t know about. We also know this is the same Eric Holder/Barack Obama justice department that withheld key evidence from Senator Ted Stevens’ defense team. At least in the case of Senator Stevens, the prosecutors were busted, and Stevens conviction thrown out.

  77. Holder: DOJ Used Discretion In Bullying Swartz, Press Lacked Discretion In Quoting Facts

    Fresh off of explaining why the President can use drones to kill Americans on American soil, Attorney General Eric Holder apparently feels emboldened to say just about anything to justify ridiculous government actions. The latest? Defending the Aaron Swartz prosecution at a Congressional hearing called by Sen. John Cornyn, who has already expressed his concerns over the prosecution.

    As you might expect, Holder stuck with the official line that what the DOJ did in the Swartz case was perfectly reasonable. The key to his argument, as we’ve been hearing from others who defended the government’s actions: the DOJ never intended to put Swartz in jail for 35 years. Also, apparently it was unfair of the media to use that 35 year number.

    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.

    These claims are not only misleading, but also total and complete bullshit. First off, if you never intended for him to spend more than 6 months in jail, and you’re upset at the “media” for using the 35 year number… why is it that the DOJ’s own press release on the arrest played up the 35 years:

    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.

    I’m sorry, but you don’t get to push that number around in your own damn press release and then whine and complain about how “unfair” it is that the media uses the number you gave them.

    Separately, concerning the insistence that they never wanted him to spend more than 6 months in jail, they leave out the fact that this was only if Swartz agreed to plead guilty to multiple felonies. According to various reports, the DOJ, via Assistant US Attorney Steve Heymann made it clear that if Swartz did not agree to the plea, then he would seek somewhere around seven years in jail.

    Cornyn goes on to ask about why the DOJ pursued the case even after the supposed “victim,” JSTOR said it didn’t want to have anything to do with the case. Cornyn specifically asks if it makes sense to threaten someone with 35 years in prison when the victim doesn’t even seem to feel harmed by the situation. Holder than tries to spin this around and, incredibly, argue that the fact that they didn’t pursue the full 35 years is an example of good prosecutorial discretion. Seriously.

    Cornyn: The subscription service didn’t support the prosecution. Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3 or 4 month prison sentence?

    Holder: Well I think that’s a good use of prosecutorial discretion. To look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, 0 to 6 was consistent with that conduct.

    In other words, the only thing Holder is really saying here is that there was perfectly reasonable prosecutorial discretion if and only if Swartz agreed to a plea bargain in which he plead guilty to all felony charges against him. Basically, it’s a “good use of prosecutorial discretion” to bully someone into pleading guilty to a crime they don’t believe they’ve committed, and as long as they accept that, go to jail, and be okay with being labelled a felon for life, then there’s no problem.

    How do we let these people into positions of power?

  78. Elaine,
    I would love to get Aaron’s case and work on it. I would want to see his entire file, including medical and prescription records, read all his recent correspondence, and interview all his friends and acquaintances. Lot of work, and once in a while the results are inconclusive. On the other hand, such an investigation often pays off.

    The sad thing is, suicide is a permanent solution to what sometimes turns out to be a temporary (and solvable) problem. I had a friend to do it a few weeks ago. I could see it coming as long as two years ago and tried to talk him into getting professional help, but he would not go and no one could force him to go. The news came as a shock, but not a surprise.

  79. When there is prosecutorial misconduct and unconstitutional practices by the DOJ – shouldn’t the accountability start there? We have a broken justice system and the federal judges should have checked them a long time ago. The Plea Bargain system essentially prevents the discovery process from working.

  80. Elaine,
    What I have seen over and over throughout the years, is prosecutors overcharging a defendant in order to force a plea bargain. Sometimes the overcharge is an effort to get the defendant to trade information for a lesser sentence.

    Some of the most egregious cases of overcharging have been when the prosecutor said they were going after a death penalty, but if the defendant gave up information, the death penalty was off the table, and in some cases charges dramatically reduced. That of course, depends on how valuable they consider the information.

    I have an idea Barrett Brown’s charges will come down a lot if he gives up major intelligence information on Anonymous.

  81. Previously I’ve argued for overcharging to force pleas as a matter of judicial efficiency. Over the last two years though, having seen abuse of discretion heaped upon abuse of discretion, the Swartz is the straw that broke the camel’s back. I can no longer argue that the efficiency gained has a return of any value to justice. In fact, I’ve reversed my position to the point that when prosecutors maliciously overcharge – as in there is no reasonable chance they can make the greater charge stick, I think they should be removed from office. I realize dockets are backed up and something needs to be done to alleviate that pressure, but the answer is more judges, not prosecutorial extortion. Charges need to match the crime as do penalties.

  82. The prosecutorial abuse in this case seems obvious, yet Holder has praised the prosecutor instead of sanctioning her. Unless Holder does a 360 or is replaced, the future does not look too bright in the DOJ.

  83. Even though the DOJ can break the law with impunity – is there a danger when the American public views their government as Tammy Hall on the federal level? That cynicism is not healthy for the United States when citizens lose faith in government.

  84. Elaine,
    Different lyrics, same tune. Motivation for the overcharge is different, but it is still not acceptable. Prosecutors play the game all the time, all the way from county court to Federal criminal court. All too many of them see it as a game. Sometimes it’s ego, and sometimes it is political theater.

    Example: About thirty years ago, I stopped by the office of an assistant district attorney to leave some papers. Before we had a chance to discuss the case, his phone rang. It was the secretary, telling him a defendant and his defense attorney were downstairs ready to negotiate a plea. He picked up a thin file from his desk, waving it around in the air. He said, “Look at this file. I got nothing!”

    He said, “I can fix that.” He grabbed a two-inch thick stack of offense reports off the desk and put them in the folder. Fifteen minutes later he was back. Said that when he plopped the “enhanced” case file on the table, the defendant’s lawyer took one look at it and advised his client he would be better off accepting the deal the prosecution proposed.

    Not all prosecutors are bad. There are many excellent prosecuting attorneys, and I believe the good ones outnumber the bad ones. But there are creeps out there and they are dangerous. Some of them appear to be working for the DoJ.

  85. Otteray,

    I agree that there are many fine prosecuting attorneys. The daughter of one of my best friends is an ADA. She’s very bright and energetic. She puts in long hours and makes little money.

  86. Justice Robert L. Jackson, Nurenberg Prosecutor and SC Justice, had great quotes on the nature of prosecutors- they can be great or terrible with that nearly unchecked power.

  87. John Brennan in Grad School: Destroying Democracy Helps Save It

    By Douglas Lucas on Mar 17, 2013



    When the NCTC provoked controversy in 2011 with its database containing millions of records of U.S. citizens — casino-employee lists, flight records, the names of Americans hosting foreign-exchange students, and much more — Brennan seems to have been the one to decide to move forward with the program. Homeland Security privacy and civil liberties officials had raised concerns at the White House over new guidelines that allowed the NCTC to “mine” the database for possible criminal behavior, even without reason to suspect any wrongdoing by the Americans under surveillance. “Mr. Brennan considered the arguments,” the Wall Street Journal writes. “And within a few days, the attorney general, Eric Holder, had signed the new guidelines.”

  88. OS,

    No, not all prosecutors are the devil, but miscarriages of justice should not be the price paid for the overweening ambition and hubris of a few.

  89. Ross,

    I’m reading a book about Jackson right now…. So far I’m very impressed with his ability to withstand some of the greatest decisions in my opinion ever written…

    OS, is absolutely correct in his statements about prosecutors over charging…. And in the area of plea bargaining it’s basically one sided…

  90. Ross,

    OS said it best…. But I’ll add this…. The plea bargain is a one sided option where the defendant is scared not to volunteer info….there is no give by the prosecutor…… The trial system is supposed to be give and take in discovery…. But when the Feds can wait 4 years 364 days before charging….. Do you know what you were doing then….. And the way the discovery process works…. They can drop all the information that was requested on the date of or eve of trial…. I once got a bankers box full that way…. How the heck do you digest that much info…. What you see on TV is not the way it works most if the time in real life….


    I have to agree with you….

  91. The books on Justice Jackson are very interesting. One of the prosecutors at Nuremburg was Whitney Harris, He lived to age 97 and was an ACLU member in Saint Louis. He also founded a human rights foundation at Washington University. His book: Tryanny On Trial is a great account of the Nuremburg Trials and the conduct of defendants which was prosecuted.

    This dog got to meet Whitney about 37 years ago when Whitney gave some good free advice on a civil rights suit. Back when this dog was a humanoid and a lawyer.

  92. When the Plea Bargain system is used like a poker game (not based on substance) the facts/evidence of a case are never investigated and most important “confrontation” of the accused by their accusers and evidence against them (if any) is lost. Once an empty plea is accomplished, the prosecutor has no incentive to spend any more resources to get to the truth. Evidence and witness memories are lost over time. As a result of this broken system and other practices the United States has the worst incarceration rate in the entire world.

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