>but this should have no bearing on whether to prosecute or not.
"We were just following orders" and "We were just doing our jobs" and "We were doing what the law told us to do" aren't the indefensible moral positions you seem to think they are. Laws are written by men and enforced by men. Just the idea that all prosecutors are slaves to these laws is so incredibly naive I almost don't know what to say to you, but I'll try to sum it up:
At best, this was a simple copyright issue that the two parties chose to work out. At worst, this was a white collar crime, and with all white collar crimes, your political capital determines what happens to you. Aaron had no political capital. The support of people like Lessig or Doctorow or the EFF is meaningless in DC. Carmen Ortiz understood this. Now here we are.
> "We were just following orders" and "We were just doing our jobs" and "We were doing what the law told us to do" aren't the indefensible moral positions you seem to think they are.
Careful; that's a double-edged sword. Would you prefer that individual prosecutors have the authority to ignore the law? That didn't work too well in the pre-civil-rights South, when lynchings went unprosecuted.
It's far better to have a government of laws and not a government of men; then you can assign responsibility where it belongs, with the people who write the laws.
>It's far better to have a government of laws and not a government of men
Who do you think decided to tell JSTOR to shove it and prosecute him anyway under a federal computer crimes act? All prosecution is political and white collar crimes doubly so. Men decide to be vindictive, men decide which laws, and the men who prosecute knowing it takes millions of dollars to successful defend from a false accusation from the federal government.
We don't live under laws. We live under men. There's no politically neutral AI calling the shots. Its people trying to get promotions and making names for themselves and who knows what other motivations. The selfless prosecutor exists only in movies and TV.
All prosecution is political and white collar crimes doubly so.
No, all laws are political. Enforcement of the law, especiallly at the federal level, is apolitical. White collar crimes are not special; indeed, white collar crimes are by far the worst types of crimes because they strike directly at the foundation of the system itself (i.e., trust).
There's no politically neutral AI calling the shots.
Exactly. Letting prosecutors pick and choose which statutes they enforce would make prosecution political. This is what happened in the South for 100 years when blacks were prosecuted aggressively and white defendants were not (especially in cases with black victims). It's also the reason why prosecutors at the federal level generally do not have discretionary authority to decide what crimes they will enforce absent a presidential directive or a directive from the head of their agency.
No, no, no. The point of an AG is to act as a first line to determine which cases are worth pursuing and which are not. They absolutely are granted and should exercise frequently the right to not prosecute!
I have had several friends prosecuted for trumped up nonsense that should have been slap-on-the-wrist misdemeanors at the most.
I would prefer to see an AG exercise their privilege to not prosecute in cases where, even assuming the facts in the complaint are true, it is unclear that a crime has been committed. Particularly where there is no individual who has been harmed.
"Tough on Crime" is a messed up way to operate a justice system. "Fair on Crime" should be the standard we hold our officials to.
The United States Attorney, within his/her district, has
plenary authority with regard to federal criminal matters.
This authority is exercised under the supervision and
direction of the Attorney General and his/her delegates.
The statutory duty to prosecute for all offenses against
the United States (28 U.S.C. § 547) carries with it the
authority necessary to perform this duty. The USA is
invested by statute and delegation from the Attorney
General with the broadest discretion in the exercise of
The authority, discretionary power, and responsibilities of
the United States Attorney with relation to criminal
matters encompass without limitation by enumeration the
Investigating suspected or alleged offenses against the
United States, see USAM 9-2.010;
Causing investigations to be conducted by the appropriate
federal law enforcement agencies, see USAM 9-2.010;
Declining prosecution, see USAM 9-2.020;
Authorizing prosecution, see USAM 9-2.030;
Determining the manner of prosecuting and deciding trial
Recommending whether to appeal or not to appeal from an
adverse ruling or decision, see USAM 9-2.170;
Dismissing prosecutions, see USAM 9-2.050; and
Handling civil matters related thereto which are under the
supervision of the Criminal Division.
Having carefully reviewed all of the facts and
circumstances of this matter, as it does in every case
involving firearms-related offenses or any other potential
violation of D.C. law within our criminal jurisdiction, OAG
has determined to exercise its prosecutorial discretion to
decline to bring criminal charges against Mr. Gregory, who
has no criminal record, or any other NBC employee based on
the events associated with the December 23, 2012 broadcast.
It would have been nonsensical to go after Gregory. He only got the benefit of the doubt because he was a DC political journalist who was literally interviewing Obama last week. And it was nonsensical to go after Swartz. But he did not get the benefit of the doubt.
"Just the idea that all prosecutors are slaves to these laws is so incredibly naive I almost don't know what to say to you"
You are implying things that I did not say.
Please quote specifically what I said that gives you the impressions that I am "so incredibly naive". In other words indicate where I said or implied that prosecutors don't have discretion and what that has to do with what I did say which had to do specifically with the person "harmed".