While watching President Obama’s second inauguration, I was also reading the recent, brief, but quite thought-provoking essay written by University of Tennessee law professor Glenn Reynolds, “Ham Sandwich Nation: Due Process When Everything Is A Crime.” Reynolds’s piece was prompted by the tragic suicide of Aaron Swartz, the young computer-programming wizard, political organizer, and Internet activist who fell into the clutches of the Boston U.S. Attorney’s Office, which, at the time Swartz took his life, was planning to forever ruin him over an apparent act of civil disobedience, in order to make an example of him. (This is my characterization of the treatment of Swartz, not Reynolds’s.)

Appropriately hoping to encourage further debate, Glenn Reynolds has raised even broader due process questions posed by the work of federal prosecutors generally, given the fact that they have remarkable and largely unfettered powers to implement a federal criminal code that is so broad and extensive (when it is not strikingly vague) that it literally makes unwitting criminals of potentially almost everyone. Aaron Swartz learned these frightening realities about the federal code and prosecutorial powers too late.

It was ironic that I happened to be reading Reynolds’s essay while keeping an eye on the television coverage of the inaugural parade in Washington, DC. I finished reading the Swartz piece as President Obama got out of the White House limousine to walk down Pennsylvania Avenue with his wife, First Lady Michelle Obama, which, for me, brought to mind a long-forgotten incident about prosecutorial discretion.

Nixon’s 1972 Inaugural Parade Incident

During the Saturday, January 20, 1973, Nixon inauguration, I was working. (My wife enjoyed a VIP seat behind the President during the swearing in, and later, in the reviewing stand in front of the White House, while I was on duty.) As White House Counsel, I was the President’s staff link and liaison to the Secret Service, so I was in their command center.

On Sunday, January 21, the President held a worship service at the White House, followed by a reception for White House staff and important political friends (e.g., Ronald and Nancy Reagan; Nelson and Happy Rockefeller; Bebe Rebozo, etc., etc.) While I would have enjoyed a day off, I found myself in the reception line with my wife, saying hello to the President and First Lady. To my surprise, not to mention the surprise of everyone, when I greeted the President, he did not release the handshake. Rather, with his other hand on my arm, he pulled me through the reception line with him, as he took a few steps backward, because he wanted to have a very private exchange.

He asked if I had been aware of the incident during the parade. I told I was aware of it. Unlike “The Beast” that now transports the president, Nixon had used an open car, where he had stood and waved at the crowd lining Pennsylvania Avenue. During much of the 1.5 mile ride from the Capitol Building to the White House, First Lady Pat Nixon had stood beside him.

About three-quarters of the way back to the White House, they encountered a group of anti-Vietnam War protestors (there were an estimated total of 50,000 to 70,000 of them in Washington to actively protest the inauguration) who began throwing eggs and garbage at the President and First Lady. The Secret Service urged Mrs. Nixon to sit down. She refused, and an egg just missed her.

At one point, a demonstrator on the sidewalk broke through the police line, and rushed the President’s car. Two Secret Service agents tackled him almost instantly, and a uniformed D.C. Policeman had him in handcuffs and off the street in less than a minute. I was aware that the President was upset about this event, because I’d learned he had spoken with Secret Service Agent Bob Taylor, who was covering the Residence that evening, after the Inauguration and before the President was heading out to various balls.

When the President pulled me aside from the reception line, he was still angry. In a hushed but gruff tone, he told me he wanted me to call Assistant Attorney General Henry Petersen, because he wanted legal action taken against the demonstrator. When I asked the President if the demonstrator was throwing anything, he erupted, red-faced: “The little shit broke the police line. For all I know he was going to kill me. You tell Petersen to find a law he’s broken, and nail him.” Then, smacking a clenched right fist into his left hand, Nixon said, “Let’s make an example out of that goddamned jerk: prosecute his ass!”

While I did pass on the President’s request to Petersen, I also told Petersen that the Secret Service thought this to be a non-event, and that I felt the President was over-reacting, and focusing his general frustration toward the anti-war movement on this one kid, who undoubted wanted to get arrested to make his point. In addition, I told Petersen that I would take any heat that resulted from his doing nothing. But Petersen said that was not necessary, because he agreed with me. To the best of my knowledge, nothing ever happened to this demonstrator.

But this all came back to mind after reading Glenn Reynolds’s essay, and learning more about the debate over the planned prosecution of Aaron Swartz.

The Prosecution—Or Was It Persecution?—Of Aaron Swartz

Aaron’s Swartz’s suicide has raised the question of whether he was being rightfully prosecuted, or wrongfully persecuted, for his refusal to play by the rules. We have a general outline of what Swartz actually did, although it is less than clear why he did it, and we do not have a report from all the players involved in assembling the charges against him.

On July 14, 2011, Swartz was first charged based on a four count indictment, which alleged that he had improperly downloaded some four million academic journal articles from JSTOR, a data-based website that is available by subscription only. (Subscriptions are expensive and are typically purchased by academic institutions, rather than individuals.) On September 12, 2012, the prosecutor upped the stakes further, with the grand jury handing down a new and replacement thirteen-count indictment based on the same basic facts.

The indictments claim that, under false pretenses, Aaron had purchased and placed a new Acer computer with an external hard drive in a closet at Massachusetts Institute of Technology (MIT), while he was a fellow at Harvard’s Safra Center for Ethics (where he also had access to JSTOR). From a closet at MIT, Swartz connected to the MIT network, using a false name, and over a period of several weeks, while changing his computer addresses when the JSTOR site cut off his downloads, he obtained the 4.8 million JSTOR journal articles.

The debate about the appropriateness of criminally charging Swartz has been well- articulated: While not justifying or excusing his actions, Swartz’s friend (and sometimes attorney) who shared Swartz’s beliefs about the need for freedom of information on the Internet, Harvard Law Professor Larry Lessig, has written insightfully and critically of the prosecution by the Boston United States Attorney. On the other side, George Washington University Law School Professor Orin Kerr believes that the laws relied on by the prosecutors were appropriate, based on the known facts, and while Kerr does not find the tactics used by the Boston prosecutors unusual, he does not believe their aggressive tactics should been blamed for Aaron’s suicide.

Aaron Swartz’s girlfriend Taren Stinebrickner-Kauffman, however, has said she is “absolutely confident” that Swartz took his life because of the treatment he was getting from the Boston United States Attorney’s Office, a reaction shared by Swartz’s parents. Both Stinebrickner-Kauffman and the Swartz family also believe that MIT was at fault, so there remains some key information that is necessary to for us to understand what happened to Aaron Swartz, and that is the information being gathered by MIT. In a recent letter, MIT said that it is currently gathering the facts and has indicated that its report is forthcoming.

JSTOR told the Boston US Attorneys that JSTOR itself had no interest in prosecuting Aaron, after he returned the journals he had downloaded. From the indictment, however, it appears that MIT remained a complaining witness—or did the prosecutors entice MIT into making a complaint? We clearly need to hear from MIT on that issue. But regardless, it appears that this case was seriously, unnecessarily, and brutally overcharged.

The Overzealous Overcharging of Aaron Swartz

From the initial statements of Boston U.S. Attorney Carmen Ortiz, who made the highly debatable statement that “Stealing is stealing, whether you use a computer command or a crowbar,” to the upping of the charges from four counts in 2011 to thirteen counts in 2012, this was heavy-handed treatment for a 25-year-old information activist.

In fact, the backtracking defense mounted by the Boston U.S. Attorney’s Office of its own conduct in the Swartz case reveals that U.S. Attorney Carmen Ortiz now understands that they were using a sledgehammer for something that was merely worthy of a slap on the wrist, apparently along with her assistant, career federal prosecutor Stephen Heymann. For example, CNN reports that Ortiz’s office now says the prosecutors had no evidence that Swartz had acted for personal gain, and they apparently concede that calling for the harshest penalties available under the law was not appropriate, given his alleged offenses. Ortiz’s office now claims that had Swartz been convicted under her office’s draconian charges, they would have recommended that the judge sentence Aaron to six months in a low-security setting (They may have also offered him a six-month sentence in jail if he pled guilty to one of their charges.)

It appears that Aaron Swartz was looking at somewhere between 6 months and probably 6 years for downloading academic journals from MIT’s network. I am sorry, but this just does not compute. It strikes me as way overcharging, for no apparent reason.

I have a lot of friends who have worked as both Assistant United States Attorneys and United States Attorneys, and they have told me that there are some really heartless bastards who make careers out of working in those offices. It’s sad that Aaron Swartz, a genius who had much to offer us all, obviously was dealing with one or more of those heartless souls. These are not people who are conscientiously and fairly upholding our federal laws. Rather, they are typically authoritarian personalities who get their jollies from shamelessly beating up on unfortunate people like Aaron Swartz. Whoever was running Aaron’s case brings to my mind Richard Nixon in one of his darkest moods, striking out to make an example of the poor kid who was too exuberant in protesting the war in Vietnam. That instance did not lead to any punishment for the protester, fortunately. Tragically, Aaron was not as lucky.

We must all hope that the issues raised by Glenn Reynolds and others regarding the deeply flawed federal system of criminal justice do get attention, for there is nothing unusual about Aaron’s case.