Comment by skissane

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.