Did Loretta Lynch Dig Herself Into The Swartz Hole?

As potential attorney general appointees go, Loretta Lynch of the Eastern District of New York  struck me as one of the better ones.  No, she’s not Ramsey Clark, but who is?  Yes, she’s up to her eyeballs in federal in rem forfeitures, but her turf covers two huge airports and, well, much as I hate to admit it, only Volokh Conspiracy’s David Post and I seem to remember the days when U. S. v. One 1936 Model Ford V-8 De Luxe Coach (that the law abhors a forfeiture) was the rule.

So I’ve been fairly lenient, probably more so than many others, in excusing Lynch’s “issues” in consideration of her appointment.  You see, the job of AG is unlikely to be handed to someone who shares my sensibilities toward the law, and so my perspective is from the “who will do the least harm” point of view.  On the whole, my dealings with the EDNY have been pretty good, finding them to be far more realistic and reasonable than, say, their pals over at SDNY.  That doesn’t mean there isn’t a better office in flyover land, but then, their United States Attorney isn’t getting the nod anyway, so who cares?

Yet, my hopes were dashed upon reading Mike Masnick’s Techdirt post about Lynch’s response to a question from former Saturday Night Live writer Al Franken.  The subject of his question?  Aaron Swartz and the Computer Fraud and Abuse Act.

Question 1. The Computer Fraud and Abuse Act (CFAA) has received attention for its potentially harsh penalties. In 2013, I wrote a letter to the Department of Justice expressing my concern about the way in which Aaron Swartz was aggressively prosecuted under the CFAA, and associating myself with a similar letter by Senator Cornyn. The Department’s response was, in short, that the prosecution of Swartz was consistent with the Act. Since then we have heard many people – from all over the political spectrum – call for reform of the CFAA. Recently, the White House announced a proposal to amend the Act. Some have characterized the proposal as a step in the wrong direction, noting – for example – that it would increase certain sentences. What is your assessment of these criticisms, and what is your opinion of the proposal?

RESPONSE: I believe that the Department of Justice has a responsibility to protect Americans from invasions of their privacy and security by prosecuting and deterring computer crimes. Accordingly, we must ensure that the CFAA, like all of our tools, remains up-to-date and reflects the changes in the way that cybercrimes are committed, changes that have occurred in the decades since it was first enacted. For example, I understand that the Administration’s proposals include provisions designed to facilitate the prosecution of those who traffic in stolen American credit cards overseas, to enable the Department to dismantle botnets that victimize hundreds of thousands of computers at a time, and to deter the sale of criminal “spyware.”

With respect to the sentencing provisions contained in those proposals, I believe it is appropriate to ensure that, in the event a defendant is convicted of a hacking offense, the sentencing court has the authority to impose a sentence that fits the crime. For example, the enormous harm caused by the massive thefts of Americans’ personal financial data from retailers illustrates the need to ensure that the maximum sentences available are adequate to deter the worst offenders. As the level of harm caused by the worst cybercrimes increases, I support increasing the maximum penalties available to punish those crimes to a level commensurate with similar crimes, such as mail fraud or wire fraud.

It is also important to understand that these statutory maximum sentences do not control what sentence is appropriate for less significant offenses under the CFAA. In many criminal prosecutions, including prosecutions under the CFAA of all but the most serious offenses, the statutory maximum penalty has little or no impact on the sentencing of convicted defendants. Instead, in each case, prosecutors make individualized sentencing recommendations, and judges make individualized decisions, based on such factors as the facts of the case, the offender’s history, and the U.S. Sentencing Guidelines.

Finally, I note that the Administration’s 2015 proposal does not include any new mandatory minimum sentences, and I support the decision not to seek any such new sentences in the CFAA at this time.

Had Lynch given a response like this to a judge, I would hope the judge would have ripped her a new one for being outrageously non-responsive.  This was a politician’s answer, not a lawyer’s.  I reject the proposition that she didn’t appreciate the question; she knew. She chose to string together all those words for the sole purpose of saying nothing. And nothing is exactly what she said.

How many times has a politician appeared on a Sunday morning interview show, been asked a halfway intelligent question and responded without answering anything?  And, of course, the interviewer never follows up by saying, “Senator, that was totally non-responsive. What are you hiding?”

We may accept such circumvention from politicians, but the office of Attorney General demands a lawyer, and as such, confirmation should demand a lawyer’s response.

While the Aaron Swartz case, ending in his tragic suicide, was not, as the Hacktivists mistakenly thought, a singular attack on a beloved geek, it did offer an important example of the failure of the CFAA and the improper use of prosecutorial discretion in enforcing this absurdly out-dated mutt of a law.

Sen. Franken’s raising this question, raising the Aaron Swartz case, raising the CFAA which may be one of the most important criminal laws going forward in the development of a technological future, was critically important.  Lynch’s response to it reflected something far more disturbing than the fact that she did her job in EDNY as one would typically expect her to.  If she’s to be the Attorney General, then she should be expected to deal with the tough questions, the massive legal failures of outdated laws, the issues that arise in significant cases because they have come to represent the failure of law to reflect what the public expects and demands of it.

Lynch’s response tells us only one thing: she’s more interested in being a politician than a lawyer, and she’s perfectly willing to deflect responsibility with non-responsive responses to get there.  While it may be a truism that the choices range from bad to worse when it comes to the appointment of an Attorney General, Lynch’s response moved her toward the deep and ugly hole of worse.

If she refuses to provide meaningful responses, and thus keeps digging, that’s where she’ll stay.  And the shame may be that she’s confirmed anyway.

21 thoughts on “Did Loretta Lynch Dig Herself Into The Swartz Hole?

  1. delurking

    He asked her opinion of criticism of the increased sentences in the CFAA reform proposals, and she responded that she supports the increased maximum sentences. She also added that she does not support increased mandatory minimums. What were you hoping for? Is it that, by raising the Swartz case in the introduction to his question, he implied that he wanted her to say something specific about that as well, and she should have picked up on that?

      1. delurking

        By primary school rules of English construction, I certainly haven’t botched the question. “These criticisms” must refer to “Some have characterized the proposal as a step in the wrong direction”, and “the proposal” must refer to the “proposal to amend the Act” that “the White House announced”.

        If Franken wanted to ask “was the Aaron Swartz prosecution appropriate?”, or “what was your opinion of the letters I wrote?”, or “can prosecutors be trusted to use any discretion?” he should have asked that.

        Her response was that of a lawyer, not a politician. She answered precisely the question asked. The question is in the sentence that ends with a question mark. Politicians typically answer some question other than the one that was asked.

        1. SHG Post author

          I write a post. You comment to express disagreement, which is fine. I reply that you have not persuaded me to abandon my position in favor of yours. Done.

          Then you feel compelled to comment again, whether to defend your anonymous dignity or because you think that if you keep murdering more words, it will produce a different outcome. This is what gets annoying, that after having your say, you can’t stop.

  2. John

    “How many times has a politician appeared on a Sunday morning interview show … the interviewer never follows up by saying, “Senator, that was totally non-responsive. What are you hiding?””

    What shows are you watching? In my experience they are far too happy to score an interview with a Senator and will rarely press hard at all. I call “Meet the Press” “Meet the Softball.”

  3. Jim Majkowski

    Had a judge, in court, asked the question, it would have been her obligation to give a lawyer’s answer. But the question was from a Senator, in his capacity as a Senator. And the forum was a confirmation hearing. And, if one can believe former Labor Secretary Robert Reich’s description in Locked in the Cabinet of the prep he got for his own, that is not a place where answers are sought, much less required.

    1. SHG Post author

      All true, but AG isn’t labor secretary, and lawyers and judges who are watching aren’t former SNL writers who have left their old job to do comedy.

      1. Not Jim Ardis

        It is painful to watch a man ask a question written by someone else on a topic he doesn’t understand. While I suspect Sen. Franken knew he didn’t actually get an answer, I also suspect he didn’t care.

        To start with, unless her answer devolved into a diatribe about how the Illuminati are controlling our bowel movements his vote in favor of her nomination was unlikely to change. What’s more, he wouldn’t have understood an actual lawyer’s answer, even if she had given one, any more than he understood the answer she did give.

      2. John Barleycorn

        Al left his old job to do comedy. That’s pretty good esteemed one.

        P.S. I think you should start awarding yourself a night out on the town at a new to you venue or something everytime your “least harm” optimisimum overreaches your pessimistic expectations.

        Liquor and some new and varied calories are good for a principled metabolism.

  4. Steve Skubinna

    Actually what struck me was her throwaway line about “enormous damage” from hacking of personal and financial information. I have twice received letters from the VA alerting me that my personal information might have been compromised, and at least three similar ones from my employer (I work for DoD). I am gratified that the DoJ claims to be aggressively investigating and prosecuting malicious hacking. I am not so much reassured at the demonstrated fact that the federal agencies maintaining similar data, including my employer, keep fumbling it and shrugging it off with what amounts to a mumbled “oops, my bad.”

    I suppose any AG nominated to serve the current administration will be a typical member of that clown show. This is not reassuring to me.

  5. Roderic

    I’m no fan of Lynch, but as I re-read her response I can’t see what it is she is supposed to have said. She spoke to the issues of keeping the law updated, of having appropriate sentencing for crimes, and gave reasonable answers. What else was there supposed to be? Recall that the question was not directed so much at what was done in the Schwartz case as to criticisms of the CFAA in general, particularly harsh penalties.

    1. SHG Post author

      The sign of a good politician is to be able to utter a great many words that sufficiently appear to be responsive to enough people to satisfy them, without actually saying anything.

  6. Brian Gulino

    All right. One more time. Lynch’s position is that these laws are used to prosecute gangs of criminals who will get their hands on the personal information of thousands of people and use this information to commit massive fraud. Draconian penalties apply. The same laws were used to prosecute Aaron Swartz for what many view as a principled stand for freedom of information. This view of Aaron Swartz’s actions is not universally shared.

    Her answer was responsive on the subject of the law, non-responsive on the subject of prosecutorial discretion. Perhaps a followup question from Senator Franken would have been appropriate.

    My sense is that the substance of the question was on the law, not on the issue of prosecutorial discretion. I would deem her answer responsive.

    1. SHG Post author

      Interesting that the only people who read Lynch’s response as being even close to law-ish are non-lawyers. This could explain a lot, none of it good.

  7. mockmook


    She answered what she thought of proposed changes, but didn’t answer criticisms.

    Since Franken didn’t give her specific criticisms to rebut, that seems appropriate.

    Can you provide an example response that would have satisfied you?

    1. SHG Post author

      She didn’t answer anything, at least not to the level of comprehensibility and intelligence that one would expect of an AG appointee. As I’ve already noted, that appears to more of an issue for lawyers, who recognize her failure, than others for whom empty rhetoric is sufficient.

      As for my providing an example, aside from the idiocy of the question since there are infinite responses when the only requirements are that it be intelligible and responsive, I could, you could, anyone could. She didn’t.

  8. Myles

    I’ll never get used to how people have no clue when someone in government is talking nonsense. The people who think she “answered,” or actually said anything of substance, are horribly sad.

    1. SHG Post author

      I’m trying hard not to be unduly insulting about it, but yeah. It’s extremely difficult to have a discussion with someone who doesn’t grasp that she was nonresponsive and just spewed meaningless rhetoric. But then, so much of what I read is meaningless and empty, and most people just can’t tell anymore.

      Then again, there are some who will try to rehab her response because of their political views, which is a different, and disingenuous, matter.

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