John Cornyn Asks Eric Holder if Aaron Swartz Prosecuted because of FOIA Requests

John Cornyn just sent a letter to Eric Holder asking a series of questions about the Aaron Swartz prosecution. (h/t Julian Sanchez) Many of them are utterly appropriate coming from a member of the Senate Judiciary Committee: why Carmen Ortiz said the prosecution was “appropriate,” whether DOJ’s prior investigations, plural, of Swartz had had an influence on their conduct, why Ortiz filed the superseding indictment. Kudos to Cornyn for conducting oversight, as intended.

But here’s a question I didn’t expect, the second of seven questions.

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.

It’s one thing to ask whether Swartz was targeted–and he appears to have been–for his advocacy on Open Access and Internet freedom.

But to ask whether this was retaliation for his use of FOIA? As far as I know, only Jason Leopold and I have even looked at his FOIAs in relation to his prosecution, and only for insight onto how he responded to it.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

12 replies
  1. phred says:

    OMG, Cornyn reads Emptywheel??? That is… unexpected. I’m guessing Rove’s trolls put him onto you ; )

  2. thatvisionthing says:

    I know I read a story — last year or so maybe? — about how putting in a FOIA triggers an investigation of you. Something like that. Does anyone know what I’m fuzzily half remembering? Might have read it here or at truthout or alternet or…

  3. yellowsnapdragon says:

    Huh. Perhaps some in power believe that 35 years in prison is appropriate for humbly asking permission from the government to see documents relating to onself created by that government.

  4. Peterr says:

    @phred: I wouldn’t call it unexpected at all. It’s exactly what I’d expect, assuming Corynn reads EW: “Hey, we can use this to make the Obama DOJ squirm . . .”

    Now if Cornyn had been following Marcy’s breadcrumbs in an earlier era and was writing letters like this to John Ashcroft about John Yoo and the rationale for prosecuting the war in Iraq, *that* would have been unexpected.

  5. orionATL says:

    @Peterr:

    i am very happy to see “eric holder’s” justice department squirm.

    i really don’t care who puts the burr in the saddle.

    in fact, that’s one of the jobs and the value of an opposition party.

    in fact, a toady like sen pat leighy would never ask such a question of a democratic administration.

    it would take a true democrat like, e.g., weyden to do that.

  6. Rayne says:

    This is the intersection of politics–libertarians want info to be free, the left wants transparency, the right wants to be able to freely question what they believe is a left-wing government.

    Makes perfect sense Cornyn would ask on behalf of his segment of the intersection.

  7. Peterr says:

    Marcy, you need to update the post and ask Cornyn if he will pass you a copy of whatever response he gets from DOJ.

  8. TG says:

    @thatvisionthing:

    Maybe you’re thinking of articles discussing a U.S. Supreme Court decision on whether the steps agencies take when they receive FOIA requests can be considered “investigations” and whether agencies’ responses constitute government “reports.”

    The case arose because an employee of the Schindler Elevator Corp. suspected the company was filing false reports with the Labor Department about the job opportunities it provided to veterans. The employee filed a qui tam claim under the False Claims Act, which allows private parties that discover fraud being committed against the U.S. government to file suit against the alleged fraudsters and share in any recovery that results.

    To keep the act from becoming a vehicle for “opportunistic” lawsuits, it states that courts cannot hear a case if the suit is based on several types of public disclosures, such as government reports.

    In Schindler, the employee based the claim on his personal knowledge and on information produced through a FOIA request his wife filed with the Labor Department to get any reports the company had filed on its veterans hiring practices.

    When an agency receives a FOIA request, it has to research the matter and identify what information would be responsive to the request. It analyzes the responsive information and determines whether documents can be disclosed or are exempt from disclosure or can be disclosed only after redactions. It then provides the documents or sends a letter stating why it will not provide documents.

    Schindler argued that the employee’s qui tam claim was invalid because the steps the Labor Department took in response to the FOIA request constituted an investigation and the information it sent to the employee’s wife constituted a government report on that investigation.

    In May 2011, the conservative majority on the court found for Schindler, and following their reasoning, every FOIA request does trigger an “investigation.”

    Justice Ginsburg, writing the dissent, countered that until the employee’s suspicions were confirmed by documents he obtained from the government, there had been no government investigation or report that would have exposed Schindler’s fraud.

    She also noted that the court’s decision weakened the force of the False Claims Act as a weapon against fraudulent government contractors and “severely limits whistleblowers’ ability to substantiate their allegations” before suing. She suggested Congress amend the law to undo the damage done by the majority’s decision.

    Her concerns were widely shared and a number of articles appeared about the case and the decision.

  9. earlofhuntingdon says:

    You ought not to be surprised about who reads your work, at least since Scooter Libby’s trial, a few of whom in government would willing adopt it without retribution.

  10. thatvisionthing says:

    @TG: No, thanks, I don’t think that’s it, or at least it’s not the article I was thinking of. I found it — it was Scott Horton at Harper’s, from July 2010, referring to a DHS policy change in 2009 — would that be of interest Swartzwise?:

    http://harpers.org/blog/2010/07/tales-from-stasiland-send-us-a-foia-request-and-well-investigate-you/

    Now the Associated Press [dead link] discloses that the Department of Homeland Security’s techniques for thwarting the president’s FOIA directive have taken a still creepier turn. Political hacks review each request, starting with a probe into the person who sent it:

    For at least a year, the Homeland Security Department detoured requests for federal records to senior political advisers for highly unusual scrutiny, probing for information about the requesters and delaying disclosures deemed too politically sensitive, according to nearly 1,000 pages of internal e-mails obtained by The Associated Press. The department abandoned the practice after AP investigated. Inspectors from the department’s Office of Inspector General quietly conducted interviews last week to determine whether political advisers acted improperly.

    The Freedom of Information Act, the main tool forcing the government to be more open, is designed to be insulated from political considerations. Anyone who seeks information through the law is supposed to get it unless disclosure would hurt national security, violate personal privacy or expose confidential decision-making in certain areas. But in July 2009, Homeland Security introduced a directive requiring a wide range of information to be vetted by political appointees for “awareness purposes,” no matter who requested it.

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