Comment by j_w
20 hours ago
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.