Cornyn said the case raises critical questions:
First, on what basis did the U.S. Attorney for the District of Massachusetts conclude that her office’s conduct was “appropriate?” Did that office, or any office within the Department, conduct a review? If so, please identify that review and supply its contents.
Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.
Third, what role, if any, did the Department’s prior investigations of Mr. Swartz play in the decision of with which crimes to charge him? Please explain the basis for your answer.
Fourth, why did the U.S. Attorney’s office file the superseding indictment?
Fifth, when the U.S. Attorney’s office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz’s alleged conduct and its impact upon victims?
Sixth, was it the intention of the U.S. Attorney and/or her subordinates to “make an example” of Mr. Swartz? Please explain.
Finally, the U.S. Attorney has blamed the “severe punishments authorized by Congress” for the apparent harshness of the charges Mr. Swartz faced. Does the Department of Justice give U.S. Attorneys discretion to charge defendants (or not charge them) with crimes consistent with their view of the gravity of the wrongdoing in a specific case?
Cornyn asked the attorney general to respond. Holder has not publicly commented on Swartz’s death.
At least two House Democrats have joined the GOP outcry over the prosecution, though, with Reps. Zoe Lofgren (D-Calif.) and Jared Polis (D-Colo.) telling The Hill they thought the DoJ was out of line.
“The charges were ridiculous and trumped-up. It’s absurd that he was made a scapegoat,” Polis said. “I would hope that this doesn’t happen to anyone else.”
Swartz’s case has also made it to the White House petition site, where more than 43,000 signatures have triggered a mandatory response to their request that U.S. Attorney Carmen Ortiz be fired for prosecutorial overreach.
“A prosecutor who does not understand proportionality and who regularly uses the threat of unjust and overreaching charges to extort plea bargains from defendants regardless of their guilt is a danger to the life and liberty of anyone who might cross her path,” the petition states.
Ortiz released a statement Wednesday defending her office’s conduct in the case.
“I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life,” Ortiz said.
According to documents from her office, Swartz was due in court for a pretrial motion hearing on Jan. 25 and his trial was set to begin April 1.
“The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases,” Ortiz said. “That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting.”
“As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.”