The Eric Holder Memo on the "Reasoned Exercise of Prosecutorial Discretion" and the Swartz Affair ~pj

When Aaron Swartz died, I told you that I'm no expert on criminal law, and I'm not. So I couldn't really provide a star to guide anyone. But what I could do is research and provide information so you could be fully informed. That's what journalists are for.

And now I've come across something that I think might be helpful, a May 19, 2010 memo [PDF] by Attorney General Eric H. Holder, Jr. to all federal prosecutors, letting them know that he wanted them to be fair and reasonable in exercising their prosecutorial discretion. He told them that he wanted them to be flexible, too, not necessarily bound by maximum/minimum guidelines, but to look at the individual circumstances of each case, stating that the "reasoned exercise of prosecutorial discretion is essential to the fair, effective, and even-handed administration of the federal criminal laws". That raises a natural enough question, of course, about whether that policy was followed in the Swartz case, but that isn't what struck me. It's this as BLT explained it at the time:

The May 19 guidance, which replaces previous memos from then-Attorney General John Ashcroft and then-Deputy Attorney General James Comey, says all charging decisions must be reviewed by a supervisory attorney. All but the most routine indictments should be accompanied by a document that sets out charging options and explains the charging decision. People who commit similar crimes and have similar culpability should be treated similarly.

If Massachusetts followed that guidance, there should be such a memo in existence. Since members of Congress sent a letter to the Attorney General, asking for details, and they've been promised a closed briefing, I would imagine this explanatory document, if it exists, might be exactly what they are looking for, in that it was written contemporaneously instead of after the huge public furor.