Popehat has obtained a subpoena pushed through by Preet Bharara's office seeking information on a number of persons who commented on a May 31st article by Nick Gillespie published on Reason Magazine's website. The article in question concerned Ulbricht's pre-sentencing letter to Judge Katherine Forrest. Preet Bharara's office intends to prosecute the emotionally distraught commenters under the Federal Statute prohibiting the interstate communication of threats. This is the same statute under which just days ago a conviction won by Federal prosecutors from another office was overturned and sent for retrial under more restrictive jury instructions as criminal threats must be demonstrated to have a culpable state of mind on the part of the speaker for them to be actually criminal. Let us consider each of the eight instances of speech that Preet Bharara wants to prosecute as criminal:

Its judges like these that should be taken out back and shot.

This sounds like a person expressing an ethical opinion of the deontological sort. The author of this text is clearly asserting that as a moral rule it ought to be the case that judges like Katherine Forrest are taken out back and shot in the manner one shoots a lame horse or a rabid dog. There is an absolute lack of any declared intent in this statement to implement the author's moral determination in the real world.

It's judges like this that will be taken out and short. FTFY.

Now here is a strong probabilistic statement that seems to be so strong because it is grounded in faith. Faith that there exists some force acting as an instrument of justice that will carry out the previous commenter's moral decision. This is not unlike the belief held by a number of Christians that there will be a rapture when the innocent ascend to heaven to avoid suffering on earth. There is nothing here to suggest this author is planning to or even knows of anyone planning to attack Judge Forrest. Hell, this author doesn't even say "shot" as the previous commenter did. This individual said "short" which means maybe their sincere intended meaning is that they actually believe someone very tall will stand near judges like Katherine Forrest and make them feel inadequate in the vertical dimension. Of course this very well might be a statement of faith that judges like Katherine Forrest will become shorter because at some point in the future complications from diabetes might necessitate they have medical amputation of their lower limbs.

Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.

And here we have a conservation minded person questioning why anyone who would want to injure or kill judges like Katherine Forrest would use an expendable resource like ammunition when there are reusable tools which while slower will accomplish a similar task. There in this statement isn't even an expressed desire to see this carried out on any grounds other than as an alternative to shooting if anything is to be done at all.

Why do it out back? Shoot them out front, on the steps of the courthouse.

In this comment a preference for public executions with a flair is presented. Yet again here is a lack of intent as well as a lack of preference that any harm come to judges like Katherine Forrest at all. There is merely a preference that if it happens it be in front of the courthouse.

I hope there is a special place in hell reserved for that horrible woman.

Clearly this is religious speech as it does not concern in any way what so ever. This commenter wants the mythology and lore surrounding the religious concept of "hell" to be true and they want Katherine Forrest after her earthly life to experience hell in a special way. While this commenter wants this experience for Katherine Forrest specifically, no suggestion exists in this statement that the author has any ill will towards the judge as far as her earthly life is concerned.

There is.

Another example of religious speech which simply expresses faith and the author's belief that the previous commenter's desired special place in hell for Katherine Forrest exists. Not a single thing about these two words suggests anything at all concerning Katherine Forrest's earthly life.

I'd prefer a hellish place on Earth be reserved for her as well.

This is most plainly a desire and not a threat. While escalating from the previous commenters' bonafide religious desires and beliefs about the afterlife to concerns for Katherine Forrest's earthly life no intent or plan is expressed for taking Katherine Forrest to a hellish place on Earth.

Fuck that. I don't want to [p]ay for that cunt's food, housing, and medical. Send her through the wood chipper.

And we now have a wish. This person wishes they weren't part of a system where they had to contribute tax dollars which represent a portion of their valuable work in life into a pool that supports Katherine Forrest's standard of living. While this commenter is wishing someone, anyone would send Katherine Forrest through a woodchipper they would probably be sated if Katherine Forrest merely refunded all of the support given to her by the United States Treasury and lived naked, cold, and hungry on the street.

The intent to prosecute these commenters under the interstate threat statute in spite of lacking in their construction any number of necessary elements actual threats posses suggests that pursuing prosecutions here may represent yet another ethical compromise on the part of Preet Bharara. This prosecution of persons exercising their ability to speak in a public forum for clearly non-criminal speech may be an effort by Bharara to return to curry continued favor with Katherine Forrest, who oversaw Ross Ulbricht's trial and gave him both every possible advantage during the trial and the largest possible win at sentencing. Of course it may be an effort to return and curry favor with the judges of his district as a whole, entire kinds of convictions Bharara has won in his local judicial district have been overturned on appeal for misapplication of the law. Most notably so far was the ruling against his office's insider trading convictions.