Tina Brown: "I mean, he'd be impeached by now for drones, if he was George W. Bush."

That was her off-topic outburst after Bill Maher said: "The Obama administration has been heavily targeting whistleblowers — true — and information activists. What can we do to hold the government accountable for this harsh crackdown?" (Maher was driving at the Aaron Swartz incident.)

And here's Eleanor Clift calling drones "a blessing."

Well, first of all, drones are here to stay. They are the 21st Century modern tool of war. And in many ways they are a blessing. Much better than bombers because they can be more effective and targeted than bomber planes just raining bombs down. With an enemy that is harbored in various places, in countries where we are not at war with the country, it’s the only way you can really get at them short of invading that country which we did and discovered that isn’t so hot. So I would say they are, they are a blessing. But, they bring all sorts of ethical and moral concerns, and there should be some sort of judicial review....

"A lot of politicians use political donations as lifestyle enhancements—getting work done on their homes, taking fancy vacations, etc."

Says Andy Shaw of the Better Government Association, a Chicago-based good-government group.

“At the very least they’re bending the rules of campaign finance and sometimes they violate them blatantly. Unfortunately the IRS and state election boards are stretched too thin to investigate. But if you end up under the microscope of the U.S. Attorney that all changes … Jesse Jackson Jr. is not an outlier here, but he’s the one who got caught. There are a lot of politicians who are probably saying ‘there but for the grace of God go I.’”

Chicago politics... another federal prosecutor persecuting somebody... what angle do you want to take here?

"The other night, when [redacted] asked me why I switched from computer science to sociology, I said..."

"... it was because Computer Science was hard and I wasn’t really good at it, which really isn’t true at all... The real reason is because I want to save the world," wrote Aaron Swartz, quoted in a long article titled "The Idealist: Aaron Swartz wanted to save the world. Why couldn’t he save himself?"

"Swartz didn't face prison until feds took over case..."

"The late Internet activist was facing a stern warning from local prosecutors. But then the U.S. Attorney's office, run by Carmen Ortiz, chose to make an example of Aaron Swartz, a new report says."

The report is likely to fuel an online campaign against Ortiz... An online petition asking President Obama to remove from office Ortiz — a politically ambitious prosecutor who was talked about as Massachusetts' next governor as recently as last month.

There's a hot campaign to destroy Ortiz. Note that there's also this other case where she's accused of "bullying" a motel owner, in what she calls "strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades." Ortiz is considering appealing in that case, and the Boston Herald has the headline: "Ortiz to motel owner: We’re not done yet." It's not like she said we're not done yet.  That's the newspaper's paraphrase of "We are weighing our options with respect to appeal."

Is the prosecutor getting bullied? If she were to commit suicide — Swartz-style — would everyone feel ashamed of what they did to her?

No one cries for a prosecutor.

"With Aaron's death, we can wait no longer."

"This time there will be change or there will be chaos."

Aggressive prosecution #2: Internet activist driven to suicide.

The Wall Street Journal delves into the prosecution of Aaron Swartz:

Mr. Swartz's lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time....

With the government's position hardening, Mr. Swartz realized that he would have to face a costly, painful and public trial....

He knew what he was doing was criminal, and he was a very intelligent man who chose to do it anyway and conceived of what he was doing as actively virtuous. Wouldn't a public trial serve his purposes in critiquing the laws he opposed and arguing for the liberation of the data files he tried to set free? (I'm picturing Swartz as a bit like those animal rights activists who steal into a mink farm and open all the cages. They believe that they are serving a call of morality higher than the interests embodied in the law they willingly violate.) It's civil disobedience, which — in classic form — demands that you take the law's punishment. That's part of the acted-out argument that the law is immoral.

"It was too hard for him to ask for the help and make that part of his life go public," [his girlfriend, Taren Stinebrickner-Kauffman] said. "One of the things he felt most difficult to fathom was asking people for money."

His crime was about making more information freely public, and yet he cringed at publicity about his own plight, even where his plight was something he invited into his life and believed in as an especially good thing to do. Why the shame? Why not expose yourself as a martyr to laws you oppose?

Swartz's girlfriend and family released a statement saying: "Aaron's death is not simply a personal tragedy.... It is the product of a criminal justice system rife with intimidation and prosecutorial overreach." Understandably, they want to infuse their loss with meaning. But did the prosecutors go wrong?

The Massachusetts U.S. attorney's office declined to comment Sunday, saying it wanted to respect the family's privacy. But in a news release from July 2011, when the charges in the case were announced, U.S. Attorney Carmen Ortiz said, "Stealing is stealing, whether you use a computer command or a crowbar."...

The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn't want to do jail time.

"I think Aaron was frightened and bewildered that they'd taken this incredibly hard line against him," said Mr. Peters, his lawyer. "He didn't want to go to jail. He didn't want to be a felon."

But he knowingly and willingly committed numerous felonies, did he not? I'm not hearing the lawyer say that Swartz didn't do what the prosecutors said he did. The argument was that the law ought to be different. If you break the laws as a way to make that argument, how is the prosecutor supposed to respond? Your argument is to the public and to the legislators.

To say he didn't want to be a felon is to express a wish about the past. And it's a wish that wasn't even true. Swartz wanted to be a felon who eludes prosecution. Who gets that wish in a system of law? The intelligent, educated, nice-looking, good guy with lovely friends and family? The person who credibly threatens self-murder? The activist capable of articulating why the crime he committed should not be a crime? 

Aggressive prosecution #1: California businessman commercially growing medical marijuana.

Adam Nagourney, in the NYT, gives very sympathetic treatment to Matthew R. Davies — "a round-faced 34-year-old father of two young girls" with "graduate-level business skills" who "paid California sales tax and filed for state and local business permits" and got the advice of many lawyers as he set up an enterprise that plainly and overtly is a felony under federal law. Davies told the NYT:

“We thought, this is an industry in its infancy, it’s a heavy cash business, it’s basically being used by people who use it to cloak illegal activity. Nobody was doing it the right way. We thought we could make a model of how this should be done.”

Cloak illegal activity? It is illegal activity. Federal law is real. Haven't you heard?!

The right way? Cloaking is the right way when you're committing crimes. With your business education, somehow you were all: Hey, what a smart idea I have — being completely out in the open about breaking the law. Why hasn't anybody else thought of this?

And I love the way the NYT suddenly has a pro-business orientation. Davies deserves special grace under the law because he's using the structure of business and because he's excited about making big profits! Compare that to all the articles anguishing over Citizens United and how terrible it is to respect free speech rights when the speech comes from a place that is structured as a business.

“Mr. Davies was not a seriously ill user of marijuana nor was he a medical caregiver — he was the major player in a very significant commercial operation that sought to make large profits from the cultivation and sale of marijuana,” [said a letter from United States attorney for the Eastern District of California, Benjamin B. Wagner, a 2009 Obama appointee.] Mr. Wagner said that prosecuting such people “remains a core priority of the department.”...

“It’s mind-boggling that there were hundreds of attorneys advising their clients that it was O.K. to do this, only to be bushwhacked by a federal system that most people in California are not even paying attention to,” said William J. Portanova, a former federal drug prosecutor and a lawyer for one of Mr. Davies’s co-defendants. “It’s tragic.”

Yes, and it is mind-boggling that those who argue for the broad interpretation of federal power and who scoff at the idea of the 10th Amendment and reserving powers to the state somehow can't grasp the meaning of their general propositions when they encounter an issue where they prefer the state policy to the federal policy. The NYT and other drivers of elite opinion ought to have to face up to the reality of what their legal propositions entail.

And quite aside from the problem of the allocation of power at the federal and the state levels, how about some consistency about equal justice under the law? Let the law — as written — apply the same way to everyone, whether they have a round face and 2 young daughters or not, whether they've gone to grad school or not, whether they have big visions of massive profits or they are living hand to mouth. If the law is wrong, change the law — for everybody. Don't cry over the people you think are nice — like David Gregory and Aaron Swartz. Nonphotogenic and low-class people deserve equal treatment, and cutting breaks for the ones who pull your heart strings is not justice.

D.C. attorney general confirms that law is for the little people.

No charges will be filed against David Gregory "despite the clarity of the violation of this important law, because under all of the circumstances here a prosecution would not promote public safety in the District of Columbia nor serve the best interests of the people of the District to whom this office owes its trust."

The clarity of the violation of this important law....

Why is the law important? If Gregory clearly violated the law, but there is no interest to be served in prosecuting him, doesn't that prove that the law is not important? If the precise thing that he did — which is clearly what is defined as a crime — raises no interest in prosecution, how can we be satisfied by letting this one nice famous man go? Rewrite the law so that it only covers the activity that the government believes deserves prosecution, so there is equal justice under the law.

"Gregory had no intent to commit a crime; he was committing journalism instead."

"Gun owners often say they want the government to leave them alone; why then are some clamoring for Gregory to be prosecuted?"

Asks Howard Kurtz, with amazing naivete. The implied argument is quite weird and perverse.

First, he's got this either/or premise: If you're doing one thing, you're not doing something else. If you're doing journalism, you can't also be doing something else. That might make sense if the crime in question had a required mental element that would be negated by the intent to "commit journalism," but it doesn't. Mere possession is enough. The most virtuous individuals with the best intentions get stuck with this law applying to them. If you don't like that, then you don't like this law. You've got an objection to the law, and yet, ironically, Gregory was arguing for more laws like that! That was the nature of the "journalism" he was "committing." He ought to be the first one prosecuted, not the last.

Second, Kurtz, a journalist himself, is mired the same sense of entitlement that people are objecting to in Gregory. He thinks journalists are special people who float above it all, who don't live in reality. You are the very people who are supposed to be observing reality, understanding it, and explaining it. But you don't even see that you are part of it. You have less awareness of it than the people you're getting paid to inform. Maybe you think you're just too important to have your time wasted by consequences that would befall ordinary people. You need to be free to continue to sit there mouthing outrage about the next terrible thing that befalls some ordinary person out there in the real world.

Third, Kurtz thinks he's caught others in hypocrisy. If gun owners want the government to leave them alone, why would they want Gregory to be prosecuted? It's like Kurtz wants us to laugh in his face. Yet he seems to think he's being quite clever. Why would he think that? Puzzling, isn't it? My only answer is that he does not believe in the rule of law. It doesn't occur to him that what gun owners who "want the government to leave them alone" want is for legislatures to refrain from passing laws and to repeal existing laws and for courts to declare laws null under the Second Amendment. Why should these people like it if one privileged, prominent man escapes prosecution? The laws remain, affecting everyone else, even as the oppressiveness of the laws is falsely minimized.

"Certainly, if LaPierre had shown up with that magazine, there would be howls of gotcha, and widespread media demands for prosecution.

"Why should NBC News and its star be above the law?"

"When a prosecutor loses a criminal case in America, there are no remedies."

"It's gone. It's dead as a doornail. If they try the case badly and they lose, it's double jeopardy — you heard of it? So there are no post-trial motions, it's gone. Why? Because we had a rookie prosecutor, and if he had done a better job... Too bad, it's gone. Can you then go ahead and sue the DA and say, 'Boy you should have put your ace prosecutor on there'?"

Roger Clemens — not guilty.

The charge was perjury — in telling Congress that he'd never used steroids or human growth hormone.

It was a major, especially painful, defeat for the government in its second failed attempt at convicting a player whose legal problems highlighted baseball’s continuing drug woes....

Last spring, Clemens’s initial trial ended in a mistrial on only the second day of testimony when prosecutors bungled by showing the jury inadmissible evidence. Critics said the prosecution of an athlete like Clemens — a seven-time Cy Young Award winner — was a waste of government time and money, but the United States attorney’s office in Washington pressed forward anyway.

This time, the trial lasted much longer. The jurors heard from 46 witnesses over more than eight weeks....

"A judge’s declaration of a mistrial on Thursday in the John Edwards campaign finance case was a new setback for the Justice Department’s public integrity section..."

"... a once-vaunted watchdog that has been trying to rebuild itself after its botched prosecution of Senator Ted Stevens four years ago," writes Charlie Savage.

The unit’s performance has been faulted by nonprofit groups that seek to limit the influence of money in politics. Melanie Sloan, director of the Citizens for Responsibility and Ethics in Washington, said the Justice Department deserved “to get slammed” for what she portrayed as undertaking a risky prosecution against Mr. Edwards that relied upon a novel interpretation of campaign finance laws, even as it shied away from more traditional corruption cases.

“The cases that they are deciding to prosecute, and not prosecute, reflect an incoherent strategy,” she said. “At some points they are willing to be incredibly aggressive, like with John Edwards, and on the other hand they are overly cautious in refusing to prosecute people like John Ensign and Don Young.”

Much more at the link. Read it.

Potential "upset" in the Wisconsin recall race.

From a Journal Sentinel column titled "John Doe probe looms over Walker's recall election":

Republican activists will be upset if Milwaukee prosecutors file complaints against additional Walker aides before [the recall election on] June 5, arguing that the Democratic district attorney would be trying to influence the election.

But Democrats will be equally upset if charges wait until after the election, especially if Walker wins. Likewise, Republicans would accuse [Milwaukee County District Attorney John] Chisholm of trying to use the courts to tar the governor coming out of the recall race.

"Upset" is a funny word. Did you know that it originally meant "Set up, erected, raised up" (OED)? How did it get... upset? I think the origin is in the stomach. The meaning "Physically disordered" is "said esp. of the stomach." It seems to be the same "up" we find in "throw up" and "upchuck"!

"The prosecutor has most likely deliberately overcharged, hoping to intimidate Zimmerman into agreeing to a plea bargain."

"If this case goes to trial, Zimmerman will almost definitely be found 'not guilty' on the charge of second-degree murder," opines John R. Lott Jr.

Some extremely relevant information from the police report is completely excluded [from affidavit of probable cause]: There is no mention of the grass and wetness found on the back of Zimmerman’s shirt, the gashes on the back of his head, the bloody nose, or the other witnesses who saw Martin on top of Zimmerman, beating him, before the shot was fired. There is not even an attempt to say that the police report was in error; instead the affidavit just disregards it.



Even if everything in the affidavit is correct, it does not even begin to deal with the most crucial question: Who attacked whom? Even if it is true that “Zimmerman confronted Martin and a struggle ensued,” there may have been no wrongdoing on Zimmerman’s part. “Confronted” does not mean “provoked” or “assaulted.” It could simply mean that Zimmerman followed Martin and asked him what he was doing in the neighborhood. Surely Zimmerman had the right to investigate a strange person in his neighborhood. The police operator’s advice that “we don’t need you to do that” was merely suggestive, not an order to stop. Indeed, the police had no authority to give Zimmerman such an order.

Now take the charge of “second degree” murder. There is no way that the affidavit justifies such a charge. In Florida, second-degree murder is defined as “the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” But if Zimmerman was being beaten, there was no “depraved mind regardless of human life,” and the act “imminently dangerous to another” would be justified as self-defense.

"Prosecutors Banned From 'Jaw-Jacking' Outside Judge's Chambers."

Jaw-jacking.

"You never know how the legislation will be interpreted. Depending on the legal climate, it could be interpreted quite a bit."

Wisconsin lawprof Shubha Ghosh commenting on the proposed Commercial Felony Streaming Act. By contrast:

[U]nder the proposed legislation, it’s extremely unlikely artists like [Justin] Bieber would be prosecuted, said Mitch Glazier, senior executive vice president of the Recording Industry Association of America.

“If you’re a person who is recording a home video [covering a copyrighted song] and posting it, you’re not willfully infringing,” Glazier told TPM. “You don’t have criminal intent. The Justice Department is never going to go after you. And YouTube is licensed.”

So what would constitute willful infringement or criminal intent? For instance: if a user asked for money, or if a music publisher sent a notice asking a person to refrain from using the licensed material, but that person continued anyway. Glazier said the legislation is not “revolutionary, (but it) provides one more tool to be able to block some significant resources to pirates.”

The Justice Department is never going to go after you. How do you feel about assurances like that?

Glittering: "assault" or "wonderfully fabulous way to protest"?

Diane Anderson-Minshall, executive editor of The Advocate, the gay news magazine, says throwing metallic flecks in someone's face is a "wonderfully fabulous way to protest": "It's peaceful and it doesn’t hurt anybody. But it does get a really important point across in a fun way."

Newt Gingrich, who's been on the receiving end of this supposedly "fun" protest, says: "Glitter bombing is clearly an assault and should be treated as such... When someone reaches into a bag and throws something on you, how do you know if it is acid or something that stains permanently or something that can blind you? People have every right to their beliefs but no right to assault others.”

The NYT tries to get a legal opinion by asking First Amendment lawyer Floyd Abrams:

"I don’t think you’d get much disagreement that like so much else in the law, it’s all a matter of degree... Touching someone’s body can be criminal. But it’s awfully unlikely that there would be a prosecution if it’s just a bit of glitter. But in theory, the more that’s dropped, the more likely is prosecution."

That's a pragmatic assessment from the point of view of police and prosecutors, not an opinion about whether it is a crime. Did Abrams address the point of view of the recipient of the attack (as Gingrich did, above)? If someone rushes at you and makes gestures of attack, but it turns out to be only glitter, you still have the fear, and you (or your bodyguards) don't know what is about to happen. Then maybe it's funny to laugh at the person who felt the fear or overreacted. And there they are covered in glitter. Ha ha.

This is like the childhood game of taking a swat at someone, without hitting him, and then hooting "You flinched!" In that childhood game — is it still played? — if the person flinched, you then have the right to punch him in the arm. Hard. But imagine adults playing with each other that way. Or would life work better? Justice Bradley charges right up to Justice Prosser, gets in his face, with fists flying but not touching him, and he flinches/touches. Well, then Justice Bradley immediately has the right to punch Prosser — hard — in the arm. And that's the end of it. Instead... oh, lord!... the troubles we have in Wisconsin!

(And here's that thread from last month where we talked about pie-throwing and where, in the comments, there was some extensive discussion of glittering.)

"In trying to talk prosecutors out of weak cases, I have been told more than once, 'I wasn’t there, man, and neither were you. Let the 12 of them figure it out.'"

Writes Scott Turow (in an op-ed about Dominique Strauss-Kahn):

In practice, this means that even defendants who are probably innocent must endure the anguish of trial. I once represented a young man in a gang murder case who had been arrested and indicted along with eight other people, even though his name was never mentioned in the grand jury testimony. Although it seemed clear that the police had mistaken this young man for his brother, both the prosecutors and the judge told me to “put it on,” meaning go to trial; the client sat in court for several days, in jeopardy of a lengthy prison term, before the case against him was finally dismissed.

"Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word 'chloroform' were based on inaccurate data...."

"... a software designer who testified at the trial said Monday."

The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.

So... presumably, if there had been a guilty verdict, Anthony would be getting a new trial.