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. 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.

  2. Holder: DOJ Used Discretion In Bullying Swartz, Press Lacked Discretion In Quoting Facts
    http://www.techdirt.com/articles/20130306/13444122220/holder-doj-used-discretion-bullying-swartz-press-lacked-discretion-quoting-facts.shtml

    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?

  3. Shelley,

    If we don’t know why Aaron did what he did–can we know for sure that he wasn’t driven to suicide by this case?

  4. 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.

  5. Adding to what Gene H. posted yesterday:

    http://www.democracynow.org/2013/3/19/headlines#31910

    “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…

  6. 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.

  7. 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…..

  8. Seamus,

    Always good seeing you… You still keeping up the fight for the disadvantaged….

  9. 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..

  10. 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…”

  11. American Library Association

    James Madison Award
    http://www.ala.org/awardsgrants/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.

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

  13. 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.

  14. 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

  15. 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.

  16. 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….

  17. 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….

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