Boyle on Kerr on Swartz, and Cornyn on Holder on Swartz

Two quick links related to the Aaron Swartz prosecution:

1) Duke lawprof Jamie Boyle has posted a thoughtful reply to my two posts on the Aaron Swartz case over at The Public Domain. I plan to post a response to Jamie when I have time to do so — in a day or two, I hope — but in the meantime I wanted at least to recognize his post and provide the link for interested readers.

2) Senator Cornyn has sent a letter to Attorney General Holder asking for a detailed explanation from Holder of why DOJ exercised its discretion in the Swartz case as it did. Senator Cornyn is my former boss, so maybe I am biased here, but I think that’s a productive way to get DOJ to say more about its perspective on the case. It will be interesting to see how DOJ responds.

Among the questions raised by the Cornyn letter is whether DOJ policy gives U.S. Attorneys the discretion to charge cases consistent with the gravity of the wrongdoing in the case. The answer has changed over time. Traditionally, the answer was “yes.” In 2003, however, then-AG John Ashroft announced a new policy essentially eliminating that discretion. With narrow exceptions, all federal prosecutors were required to “charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case.” In 2010, however, AG Eric Holder overturned the Ashcroft policy with a new memo restoring the traditional role of prosecutorial discretion. You can read the 2010 Holder policy here.