WASHINGTON -- House Oversight Committee Chairman Darrell Issa (R-Calif.) is investigating the Justice Department's prosecution of Aaron Swartz, the Internet activist who committed suicide on Friday after fighting felony hacking charges for two years. Issa's inquiry comes amid bipartisan expressions of sympathy for Swartz on Capitol Hill, including a statement from Sen. Elizabeth Warren (D-Mass.).
Praising Swartz’s work toward “open government and free access to the people,” Issa told HuffPost that the government's case against Swartz is problematic enough to warrant further investigation.
“I’m not condoning his hacking, but he’s certainly someone who worked very hard,” Issa said. “Had he been a journalist and taken that same material that he gained from MIT, he would have been praised for it. It would have been like the Pentagon Papers.”
Issa said he didn't have enough information to say whether the U.S. Attorney’s Office in Massachusetts overprosecuted Swartz. He said he had dispatched an investigator to gather more facts.
Also on Tuesday, Warren praised Swartz's character and life's work.
“When I met Aaron Swartz in 2010, I discovered a young man who was passionate, sharp, a little shy, and, above all, warm and good natured," Warren said in a statement provided to HuffPost. "He seemed like the kind of person who couldn’t hurt a fly -- he just had that kind of presence. Aaron made remarkable contributions to our world, and his advocacy for Internet freedom, social justice, and Wall Street reform demonstrated both the power of his ideas and the depth of his commitment. The world is a poorer place without Aaron.”
Issa said that at first blush, the decades-long threat of a prison sentence for Swartz seemed extreme. “It does seem like it was an awful lot -- you know, 26 years potential sentence, no chance for a plea bargain -- so it did seem like it might be" an overly aggressive prosecution, Issa said. "But again, we’re in the business of finding for sure."
Swartz in fact faced up to 35 years in prison on 13 felony charges for downloading millions of academic journal articles from the online database JSTOR. JSTOR had urged prosecutors to drop the charges, which hinged on Swartz violating the terms of service agreement with JSTOR for downloading too many articles at once. Swartz had legal access to all of JSTOR's archives through a Harvard University account. A petition urging President Barack Obama to fire U.S. Attorney Carmen Ortiz for prosecutorial overreach in the Swartz case had over 31,000 signatures as of Tuesday afternoon, eclipsing the 25,000 needed for a White House response. The Obama administration has not yet responded to the petition.
Assistant U.S. Attorneys Scott Garland and Stephen Heymann were directly responsible for handling Swartz's case. Ortiz, an Obama appointee who is friends with Attorney General Eric Holder, was their boss. Harvard University Law Professor Lawrence Lessig, a friend of Swartz, has called for the Department of Justice to independently investigate the actions of Ortiz's office in the case.
Noting that Holder had been held in contempt by the Republican-controlled Congress, Issa said the Swartz case was important to reevaluate. “We certainly do want to second-guess their other misconduct, not just Fast and Furious.”
Issa suggested overprosecution is a problem beyond the Swartz case.
“I’ll make a risky statement here: Overprosecution is a tool often used to get people to plead guilty rather than risk sentencing,” Issa said. “It is a tool of question. If someone is genuinely guilty of something and you bring them up on charges, that’s fine. But throw the book at them and find all kinds of charges and cobble them together so that they’ll plea to a 'lesser included' is a technique that I think can sometimes be inappropriately used.”
Rep. Elijah Cummings (D-Md.), ranking member of the House Oversight Committee, told HuffPost he would need to know more facts before judging whether the Swartz case is worth looking into. “As a lawyer, I realize that each case is based upon the facts that the prosecutor has in his hand,” Cummings said. “So without knowing what those facts are, it’s kind of hard to judge.”
Issa has been one of a handful of congressional Republicans to take an active role defending Internet freedom issues. He was the first Republican to speak aggressively against the Stop Online Piracy Act, a bill that Swartz led opposition to as an activist. Issa has also proved an aggressive partisan foe of the Obama administration, and has been criticized for overplaying the Fast and Furious investigation and prompting the contempt vote against Holder. Issa's work on Internet freedom issues was not restricted to SOPA, which online activists defeated in January 2012, but has included lower-profile trade policies.
It’s unclear whether the Office of Professional Responsibility -- the Justice Department's internal watchdog -- would open an investigation into the case, since the allegation is that federal prosecutors were too aggressive rather than guilty of any specific misconduct.
One former Justice Department official told HuffPost that it would be very unlikely that OPR would find lawyers in the case had engaged in misconduct, given the subjectivity of the case. Critics have alleged only that prosecutors were imprudent in their aggressive pursuit of the case, not that the attorneys had done anything illegal. While OPR would be unlikely to open an investigation in a lower-profile case with the same set of facts, there’s a possibility they may at least take a look at a complaint given the amount of publicity surrounding the Swartz prosecution.
A spokeswoman at Justice Department headquarters referred questions about Issa's investigation to Ortiz. Ortiz's office has used "respect" for "the privacy of the family" as a justification for declining to comment since Swartz’s death on Friday.
On Tuesday, however, Ortiz's husband Tom Dolan took to Twitter to criticize Swartz's family and defend his prosecution.
Dolan's references to a "six month" plea bargain stem from an anonymous source in a Sunday night Wall Street Journal article. Ortiz spokeswoman Christina Sterling declined to comment on both the petition and the Dolan tweets. Dolan's Twitter handle has since been deleted.
UPDATE: 9:30 p.m. -- Issa's investigation has some bipartisan support in his House Oversight Committee. Rep. Jared Polis (D-Colo.) told The Hill the charges against Swartz were "ridiculous and trumped-up" and said it was "absurd that he is made a scapegoat."
Rep. Zoe Lofgren (D-Calif.) called the government's handling of the case "pretty outrageous" and said DOJ was "way out of line" based on what she knew of the case. Both lawmakers worked with Swartz's Demand Progress to defeat online piracy legislation last year.