Criminal law, Politics, Society

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

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

  1. 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…..”.

  2. 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….

  4. 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”
    http://www.emptywheel.net/2013/01/13/two-days-before-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:
    http://en.wikipedia.org/wiki/United_States_Secret_Service#Domestic

  5. OT and not a surprise:

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

    Published time: March 18, 2013 12:50

    http://rt.com/op-edge/former-gitmo-guard-poor-sound-409/

    Excerpts:

    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.

  6. 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.

    http://www.spartacus.schoolnet.co.uk/JFKseal.htm

    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.
    http://whatreallyhappened.com/RANCHO/POLITICS/MENA/letter_to_edwin_meese_iii_3-3-86.html

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

  7. 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.

  8. 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?

  9. Paul,

    In Obama honor they have renamed the title for him…. Piece Puzzles….

  10. AP,

    Whether you agree with Gene or not…. He usually does….

  11. 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?

  12. 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…

  14. 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.

  16. 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.

  17. 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…

  18. 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.

  19. 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.

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