U.S. Attorney Carmen Ortiz is fighting to hold on to her job, and to avoid an embarrassing grilling in Congress and possible professional disciplinary proceedings. Her prospects look grim. Rep. Darrell Issa (R., Calif.), chair of the House Committee on Oversight is pledging a vigorous and critical inquiry into her management of the dubious criminal prosecution of Aaron Swartz, one of the greatest computer prodigies of his generation, who committed suicide a week ago, apparently convinced that out-of-control prosecutors had destroyed his life. While Issa’s prior attempts to take aim at the DOJ have fizzled, this one is garnering significant bipartisan support: Zoe Lofgren (D., Calif.) is introducing “Aaron’s Law,” expressly overturning the interpretations upon which Ortiz proceeded against Swartz, while Jared Polis (D., Colo.) blasted the prosecutor’s case as “ridiculous and trumped-up.” Senator Elizabeth Warren (D., Mass.), who would have a say in the appointment of Ortiz’s successor, was unstinting in her praise for Swartz as a person who “wouldn’t hurt a fly” and whose acts demonstrated a “powerful commitment” to the betterment of society. Nancy Gertner, a recently retired federal judge who is intimately familiar with both prosecutors, lambasted them in a broadcast interview, parsing and ridiculing the claims they had made against Swartz and suggesting that the case should have been dismissed. At funeral services in Highland Park, Illinois, on Tuesday, Swartz’s father charged that his son had been “killed by the government.” While some might ascribe this to the anguish of a bereaved father, scholars and investigators poring over the record of the Swartz prosecution are increasingly shocked at the scope and outrageousness of the prosecutorial misconduct that he faced.
Prosecutors Ortiz and Stephen Heymann turned to a standard trick while pursuing the case, mounting a total of thirteen felony counts against Swartz and arguing that his college prank aimed at “liberating” a collection of academic articles with little commercial value was a serious crime. Although each of these counts bordered on the preposterous, Ortiz and Heymann clearly reckoned that at least one or two would stick during the jury-room bargaining process. More to the point, they assumed that the risk of their success even on bogus charges would be enough to pressure Swartz into accepting a guilty plea on all the counts in exchange for a reduced sentence — which is what they offered him. The process was fundamentally corrupt and shameful. But observers of the American criminal-justice system also know that it was a common one.
The details that have emerged since Swartz’s death have only strengthened calls for the removal and punishment of the prosecutors. Swartz’s lawyers revealed, for example, that when their client’s suicidal nature was noted during their failed efforts to get the charges reduced to a misdemeanor level, Heymann responded by saying “Fine, we’ll lock him up.” Prosecutors were also revealed to have offered a reduced sentence, but only if Swartz pleaded guilty to every charge. This is clear evidence of oppression geared to advance prosecutorial careers, not to serve the interests of justice. Britain’s Daily Mail showed that Swartz was not the only youthful alleged hacker whom Heymann had hounded to suicide — twenty-four-year-old Jonathan James took his own life in 2008, six months after his home was searched in a raid coordinated by Heymann. The DOJ undertook no internal probe of that case, instead giving Heymann an award for “distinguished service.” In the Swartz case, the prosecutors claimed they were acting on behalf of two injured parties — JSTOR and MIT. But JSTOR disagreed with this characterization, including the attorneys’ use of the word “theft,” and demanded that they drop the case. And unnamed sources at MIT this week pointed their fingers at the federal prosecutors, insisting that their unreasonableness and intransigence had kept the case moving despite dishonest charges.
Ortiz’s first defender was her husband, who, without disclosing their relationship, issued a series of false statements on Twitter before being exposed and then deleting them. Now Ortiz has come forward to speak for herself. Her statement offers no apology to Swartz’s family; audaciously whitewashes the facts by stating that she never claimed Swartz sought to profit from the publication of the papers, when in fact she repeatedly implied exactly that; and shows no remorse or contrition. She states that she is unable to respond to charges that her conduct led to Swartz’s death, but tenaciously insists that what she did was “appropriate.”
The flaw in Ortiz’s posture has been laid bare by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In United States v. Nosal, he dismissed the theory Ortiz used to go after Swartz, saying it would potentially criminalize “everyone who uses a computer in violation of computer use restrictions — which may well include everyone who uses a computer.” Kozinski was born and raised in Communist Romania, and knows a thing or two about totalitarian states — and he knows that prosecutorial overbreadth is their leitmotif. If conduct can be charged so broadly as to cover virtually everyone, then prosecutorial discretion effectively becomes a license to persecute anyone who stands in the state’s way. Radley Balko and Clive Crook have each focused on this concern about the Swartz case. I share the essence of their analyses.
The question remains why the DOJ targeted Swartz to such an extent. The DOJ insists that the case grew entirely out of his prank at MIT, and the timeline supports this claim. However, those facts supply no meaningful rationale for their prosecutorial vendetta. On the other hand, Swartz aggressively opposed theories, pioneered by prosecutors like Heymann and Ortiz, that were designed to make the DOJ into a cyberspace police force with power to act against anyone who provoked their concern. He provided articulate, effective opposition, and regularly trumped DOJ initiatives in forums that offered fair debate. His vision of cyberspace placed a premium on the empowerment of individuals and their free access to information — offering an essential updating of the Enlightenment values of the American founders that was sharply at odds with the Justice Department’s schemes. The DOJ values secrecy over publicity, the property rights of corporations over the rights of authors and inventors, and puts a premium on the power of the state to silence voices on the Internet that it views as a threat. Their objective was clearly not to kill Swartz, but they did want to silence him by stigmatizing him and locking him away in prison.
Ortiz’s refusal, even at this late point, to come to terms with her gross misconduct is hardly surprising. She is after all a political figure with political aspirations, and the rules of American politics dictate that one should never admit a mistake, instead pushing blame onto others — here, an Internet prodigy who can no longer defend himself. But it does reinforce her image as a bully who has abused her power and is incapable of reexamining serious mistakes. Past experience suggests that the DOJ itself will behave the same way — closing ranks behind her, hiding the identities of those who collaborated in the tragedy, and concealing vital evidence. For all these reasons, an aggressive, thorough, and public congressional probe with bipartisan support is the necessary next step. Ortiz and her collaborators in this tragedy have serious questions to answer.