Under questioning from Sen. John Cornyn, Eric Holder recently said that the Aaron Swartz case was a good example of prosecutorial discretion. He makes the case, in part, by lying:
Holder insisted the media had misrepresented the government’s position. “A plea offer was made to him of three months before the indictment,” Holder said. The attorney general said the government never intended for Swartz to serve more than six months in jail.
Oh yeah? That’s not what Elliot Peters, Swartz’s attorney, told me in January. While it may be the case that they offered Swartz a few months in prison, they also said they would seek a much higher sentence if they went to trial:
They told Peters that if the case went to trial and Swartz were convicted, they would seek a prison sentence of 7 to 8 years. They told Peters that they thought the judge would impose that sentence.
If John Cornyn read my blog, he would have been armed with the information necessary to take on Holder. I don’t think he was.
While Holder was busy lying to Congress, his prosecutors were busy dismissing cases that they had aggressively prosecuted in the past, making people wonder whether they hope to forestall investigations into prosecutorial misconduct. Remember that case I told you about in November, in which a federal judge excoriated New Orleans federal prosecutors for leaving anonymous comments on the local newspaper’s web site, and then lying about it?
That judge ordered DoJ to investigate the alleged improprieties, but also expressed skepticism about their willingness to do so thoroughly:
“It is difficult to imagine how this could have possibly been missed by OPR. . .”
Well, now news breaks that the case that first exposed these prosecutors’ sock puppeting is being dismissed:
River Birch landfill owner Fred Heebe, the target of a years-long federal probe into his efforts to monopolize the disposal business in southeastern Louisiana, issued a statement Friday afternoon saying that federal prosecutors had informed him he won’t be charged in the probe. On Friday morning, prosecutors dismissed charges against Dominick Fazzio, the landfill’s chief financial officer, and Mark Titus, Fazzio’s brother-in-law — both of whom investigators had hoped to turn into cooperating witnesses against Heebe.
A related article explains the relevance:
The judge has on several occasions referred to the “troubled history” of the prosecution in the case.
That history includes former prosecutors Sal Perricone and Jan Mann leaving the U.S. attorney’s office last year, after Heebe’s legal team outed them separately as the authors of numerous online posts on NOLA.com. Many of those posts made disparaging comments about federal targets.
Letten put Mann in charge of an initial probe after Perricone — whose comments were revealed first — left the office in the spring. But when Mann’s own anonymous comments were also revealed in the fall, U.S. District Judge Kurt Engelhardt issued a scathing order calling for the Department of Justice to investigate the postings and other misconduct in Letten’s office.
I have checked the docket on the case in which the order to investigate the sock puppeteering was issued (USA v. Bowen et al.), and everything appears to be under seal since November, which is more than a little frustrating when it comes to an issue of the public integrity of the DoJ. The dismissal of the River Birch case makes one wonder if the Government will apply the same sweep-it-under-the-rug tactic in the Bowen case.
We’ll be right here watching.