Hold the phone here, somethin's fishy!

DOJ Goes Long for Sarah Palin

By Scott Horton

We will all be able to sleep more soundly tonight knowing that a serious criminal has been apprehended. The Associated Press reports:

David Kernell, 20, of Knoxville, Tenn. entered the plea in federal court in Knoxville, the same day prosecutors unsealed an indictment charging him with intentionally accessing Palin’s e-mail account without authorization. Kernell, an economics student at the University of Tennessee, was brought into court wearing handcuffs and shackles on his ankles.

He was released without posting bond, but the court forbade him from owning a computer and limited his Internet use to checking e-mail and doing class work.

The hearing follows a massive deployment of FBI and Secret Service agents and prosecutors to identify the culprit who hacked into Palin’s email account, removed a series of her communications and published them on the internet.

As Orin Kerr explains here, hacking someone’s email account and making use of the information gained is a crime; it may either be a felony or a misdemeanor, depending upon the hacker’s intentions. And here’s the rub. In order to dramatize the case and get a felony indictment, the prosecutors needed to allege that it was “committed in furtherance of a criminal or tortuous” act. Here’s Prof. Kerr, again on the case:

Oddly, though, the indictment doesn’t exactly state what the crime or tort is that the intrusion was designed to further. It just states that the intrusion was “in furtherance of the commission of a criminal act in violation of the laws of the United States, including 18 U.S.C. Section 2701 and 18 U.S.C. Section l030(a)(2)” But Section 2701 and Section 1030 are the intrusion statutes themselves! It makes no sense to allow a felony enhancement for a crime committed in furtherance of the crime itself; presumably the enhancement is only for intrusions committed in furtherance of some other crime. Otherwise the felony enhancement is meaningless, as every misdemeanor becomes a felony.


... What motivates this prosecutorial overreaching?

The Justice Department seems to be setting one of its amazing new rules. When a Republican political figure is damaged in her expectation of being elected to office, it is telling us, that’s a felony. And why is that the case here? Because the hacker helped establish something important: Sarah Palin has been systematically violating the Open Records Act.

As David Corn has noted at Mother Jones, [see next story] Palin relied heavily on private email accounts for improper purposes. As governor of Alaska, she was obligated to maintain as public records her communications with respect to her discharge of official duties. Palin skirted this obligation by turning to private email accounts for government related dealings. In fact, the hacker in question helped flush out Palin’s violations. The hacker also helped establish a motive for the illegal conduct: Palin regularly involved her husband in official business, and it’s easy to understand why she did not want to leave behind evidence of her husband’s involvement.

http://harpers.org/archive/2008/10/hbc-90003672

Palin's (Functional Equivalent of an) Email Cover-up

David Corn

By using at least one private email account for state business, Alaska Governor Sarah Palin has virtually guaranteed that most of the emails she sent as governor--which are subject to the state's Open Records Act--will not be publicly released before Election Day.

After Senator John McCain, the GOP presidential nominee, picked Palin to be his running mate, a number of news organizations, including Mother Jones filed Open Records Act requests for copies of emails Palin had received or sent. (For a comprehensive list of all the requests received by Palin's office, see here.)On September 22, in response to the Mother Jones request, Palin's office replied that it would cost $2,249.46 to conduct a search of her official email account. This did not include copying fees. The fee was later reduced to $590.06. But money was not the issue.

Palin has used at least two private email accounts in addition to her state account. That posed a serious challenge to the record-keepers in her office: how to find the emails to and from these accounts. The information managers had easy access to the emails she generated and received with her official account. But they did not have access to a Yahoo account she used for official communications and another private account she might have used for state business.

...

The bottom line is that Palin appears to have benefited from her decision to conduct state business using private channels. As governor, she has touted the need for accountability and transparency (even though she has withheld about 1100 emails involving her aides, citing dubious justifications). But because Palin used one or more non-state email accounts for official communications--perhaps improperly--she has created a costly mess for her administration's information officers and a situation in which emails from all her accounts will likely not become public before November 4. If her emails contain any information that might not reflect well upon Palin, the McCain-Palin campaign need not worry. Palin, wittingly or not, has engineered a delay that is the functional equivalent of a cover-up.

http://www.motherjones.com/mojoblog/archives/2008/10/10122_palins_email_cover-up_open_records_act.html