Comment by skissane
16 hours ago
The problem with prosecuting them – they are employees of a White House office, doing what their bosses told them to do, and it is clear their bosses are carrying out the President's wishes.
If Joe Blow off the street walks into a federal agency and takes all their data – open and shut case, throw the book at them, see you in a few decades.
If someone from the White House walks into a federal agency, tells the agency leadership "the President wants me to take all your data", and the agency leadership replies "sure, go right ahead" – not a scenario people were expecting, so the existing laws haven't been crafted to clearly criminalize it. Maybe some enterprising prosecutor can find a way to map it to the crimes on the statute book, maybe it is just too hard. But even if the prosecutor overcomes that hurdle, it will be far from easy to convince the jury / trial judge / appellate courts that the legal elements of the crime are actually met – and if it actually gets as far as a conviction upheld by the appellate court, what do you think the conservative SCOTUS majority are going to do with that when they get it? And many prosecutors, foreseeing those low odds of ultimate success, will stop before they even get to an indictment.
So, I think the odds of anyone ultimately being convicted over this are low, even if Trump never pardons them.
Maybe, Congress might pass a law to make it more clearly illegal, which might make it easier to prosecute if a future administration repeats the same behavior.
EDIT: if people are downvoting this because they think my analysis of the likelihood of successful criminal prosecution is wrong, it would be great if they could reply to explain where they think I got it wrong
The claim that because your boss tells you to do something illegal means that you should just do it is bullshit. It's your social responsibility to not capitulate under these circumstances.
If you don't feel that way then you deserve the world you are creating.
The problem is a lot of relevant criminal laws contain this word “unauthorized”. If you have access to a computer system, and it is authorized by the people who own the system, it isn’t a crime. These people will say that whatever they did/bypassed was (1) authorized by the President (of course if you ask Trump if he authorized them to do whatever he’ll say “yes”); (2) authorized by the senior agency leadership (because Trump has made clear that if they refuse to authorize it they’ll be fired).
So, how do you prosecute them for accessing a computer system (or data or whatever) without authorization when both the President and the senior agency leadership say they authorized it?
Well, you can’t-unless you want to argue that the President / agency leadership’s authorization is illegal and hence illegally invalid, ultra vires. But even supposing you are right about that in the abstract, will you be able to convince a judge and jury of it? And even supposing you convince a jury, trial judge and appellate court, there’s a dozen different ways SCOTUS could overturn it (from narrow questions of statutory construction to sweeping rulings about the President’s inherent constitutional power to demand information from the executive branch), and I think the main question for the current SCOTUS majority will be which of those ways they choose.
My impression is that a lot of people are mixing up what they think the law ought to be, with what it actually is. Just because something ought to be a crime doesn’t mean it actually is one - and that’s especially going to be the case with unprecedented situations, it is hard to make something a crime if nobody foresaw it would one day happen.
All public servants take the oath found in 5 USC 3331. The oath is to support and defend the Constitution of the United States. Not a person.
That's not a counterargument to my position that successful criminal prosecution is unlikely.
If you are going to charge them with a crime, which one? CFAA?
How then to prove that access is unauthorized under the CFAA given evidence that both the President and senior agency leadership authorized it? Trying to claim that those authorizations are legally invalid gets into rather murky areas of law, and is (AFAIK) without precedent. Can you point to any previous cases of a successful CFAA prosecution where the access was authorized by a senior federal official but that authorization was declared legally void?
How do you get past the fact that the law is ultimately whatever SCOTUS says it is, and it seems more likely than not that the majority of current SCOTUS will want to say that this specific situation isn't a crime?
I feel like people are rejecting my position because they don't like it or don't want it to be true. Of course, maybe I'm wrong – maybe Thomas, Alito, Gorsuch, Kavanagh, Barrett and Roberts are all secretly dreaming of sending Musk and his minions to federal prison; or maybe they'll dispassionately follow their own judicial philosophies to the logical conclusion that doing so (using CFAA or whatever) is statutorily and constitutionally required - but that doesn't seem very likely to me, given their track records. Do you really think I'm wrong about that?