POLITICS
01/10/2014 03:53 pm ET Updated Jan 25, 2014

Eric Holder Criticized On Anniversary Of Aaron Swartz Death

Boston Globe via Getty Images

Members of the House and Senate are pressing U.S. Attorney General Eric Holder to answer questions about the "aggressive" prosecution and "tragic" death of internet activist Aaron Swartz, who committed suicide a year ago Saturday while facing federal hacking charges.

Sens. John Cornyn (R-Texas), Ron Wyden (D-Ore.) Jeff Flake (R-Ariz.), and U.S. Reps. Darrell Issa (R-Calif.), Jim Sensenbrenner (R-Wisc.), Alan Grayson (D-Fla.), Zoe Lofgren (D-Calif.), and Jared Polis (D-Colo.) sent Holder a letter Friday, following up on an initial request for answers about the prosecution that Cornyn sent a year ago.

"We regret that the information your Department has provided to date has not been satisfactory -- among other things, it painted a picture of prosecutors unwilling or unable to weigh what charges to pursue against a defendant, something which you have instructed federal prosecutors is 'among [their] most fundamental duties,'" they wrote.

Swartz, 26 when he died, was facing a statutory maximum of 50 years in prison for allegedly violating the Computer Fraud and Abuse Act by downloading academic journal articles in a computer closet at Massachusetts Institute of Technology. The government's indictment acknowledged that he had no plans to use the articles for personal gain, but instead may have been trying to further his goal of open access to knowledge.

After two years of negotiations, however, Swartz's legal team was not able to convince Massachusetts U.S. Attorney Carmen Ortiz and Assistant U.S. Attorney Stephen Heymann, to come to terms on a plea deal.

A DOJ letter, cited in the letter sent to Holder Friday, said that "the charging and sentencing decisions made by Department lawyers were properly based on the law and the facts of the case ... and not on inappropriate considerations, such as Mr. Swartz’s exercise of his legal rights as a citizen." But the letter to Holder on Friday points out that Heymann later said an internet petition campaign in support of Swartz was the "straw that broke the camel's back," leading him to issue a superseding indictment that upped the charges against Swartz.

"Inconsistencies such as these require serious responses to our original letter, and indeed raise more questions about the prosecution of Mr. Swartz," the letter says.

"In March, you testified that Mr. Swartz’s case was 'a good use of prosecutorial discretion.' We respectfully disagree," it concludes, making reference to Holder's testimony before the Senate Judiciary Committee in 2013. "We hope your response to this letter is fulsome, which would help re-build confidence about the willingness of the Department to examine itself where prosecutorial conduct is concerned."

Read the full text of the letter to Holder:

Dear Attorney General Holder:

Tomorrow marks the anniversary of the tragic death of Aaron Swartz, the brilliant technologist and activist who took his own life while facing an aggressive prosecution by the Department of Justice.

One year ago, Senators Cornyn and Franken and wrote to you asking questions about the conduct of the U.S. Attorney’s Office for the District of Massachusetts, which had prosecuted Mr. Swartz for allegedly breaking into the computer networks of the Massachusetts Institute of Technology (“MIT”) and downloading without authorization thousands of academic articles from a subscription service. House Oversight and Government Reform Committee Chairman Issa and Ranking Member Cummings also wrote to you at that time about the Swartz prosecution.

We regret that the information your Department has provided to date has not been satisfactory – among other things, it painted a picture of prosecutors unwilling or unable to weigh what charges to pursue against a defendant, something which you have instructed federal prosecutors is “among [their] most fundamental duties.”

The account also is inconsistent with findings in the report prepared by MIT about the prosecution of Mr. Swartz, dated July 26, 2013 (“MIT Report”). A letter provided by the Department in May states that “the charging and sentencing decisions made by Department lawyers were properly based on the law and the facts of the case . . . and not on inappropriate considerations, such as Mr. Swartz’s exercise of his legal rights as a citizen.” The MIT Report indicates that Assistant U.S. Attorney Stephen Heymann considered other factors in advance of the return of the superseding indictment. He told MIT that “the straw that broke the camel’s back” was an internet webpage soliciting signatures on Mr. Swartz’s behalf by Demand Progress, an activist group founded by Mr. Swartz. [1]

Your letter also indicates that the superseding indictment resulted from the elimination of the “exceeding authorized access” theory from the first indictment and regard for how the case would be presented at trial. According to the MIT Report, MIT’s attorneys perceived the superseding indictment’s return as “an escalation by the USAO.”

Inconsistencies such as these require serious responses to our original letter, and indeed raise more questions about the prosecution of Mr. Swartz. One year ago, we sought the basis for the U.S. Attorney Carmen Ortiz’s determination that her office’s conduct was “appropriate.” We have received no such information, not even the sentencing memoranda that surely were prepared in a case such as this.

In March, you testified that Mr. Swartz’s case was “a good use of prosecutorial discretion.” We respectfully disagree. We hope your response to this letter is fulsome, which would help re-build confidence about the willingness of the Department to examine itself where prosecutorial conduct is concerned.
We appreciate your prompt and thorough answers.

[1] In the same conversation, Mr. Heymann also likened Mr. Swartz’s apparent plan to call witnesses from MIT “to attacking a rape victim based on sleeping with other men.” It is troubling enough to learn of the blithe attitude one federal prosecutor apparently took toward the constitutional right to a defense. But Mr. Heymann’s comment suggests an unprofessionalism and lack of proportion that, we fear, infected the prosecution in general.

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