Dangerous Messages: Excusing Aaron Swartz, and the Unethical Non-Prosecution of David Gregory

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To  no one’s surprise, District of Columbia attorney general Irving Nathan announced that he will not be prosecuting NBC’s “Meet the Press” host David Gregory for a clear, intentional and unequivocal violation of a D.C. law on national television. In so doing, Nathan sent the District, the nation and the public a package of unethical and damaging messages, perhaps the least significant of which is that the District of Columbia’s chief lawyer is just as ethically flawed as the rest of its government.

In his letter to Gregory’s attorney, which you can read in its entirety here, Nathan said:

  • “The device in the host’s possession on that broadcast was a magazine capable of holding up to 30 rounds of ammunition. The host also possessed and displayed another ammunition magazine capable of holding five to ten rounds of ammunition…It is unlawful under D.C. Code Section 7-2506.01(b) for any person while in the District of Columbia to “possess, sell, or transfer any large capacity ammunition feeding device regardless of whether the device is attached to a firearm” or loaded. Under the Subsection, the term “large capacity ammunition feeding device” means a “magazine, belt, drum, feed strip or similar device that has the capacity of, or that can be readily restored or converted to accept more than ten rounds of ammunition.” Under D.C. Code Section 7-2507.06, any person convicted of a violation of this Subsection may be imprisoned for not more than one year, fined not more than $1,000.”
  • “The larger of the two ammunition feeding devices in question here meets the definition under the statute. OAG has responsibility for prosecuting such offenses and takes that responsibility very seriously.”
  • ” OAG has determined to exercise its prosecutorial discretion to decline to bring criminal charges against Mr. Gregory, who has no criminal record, or any other NBC employee based on the events associated with the December 23, 2012 broadcast. OAG has made this determination, despite the clarity of the violation of this important law, because under all of the circumstances here a prosecution would not promote public safety in the District of Columbia nor serve the best interests of the people of the District to whom this office owes its trust.”
  • “Influencing our judgment in this case, among other things, is our recognition that the intent of the temporary possession and short display of the magazine was to promote the First Amendment purpose of informing an ongoing public debate about firearms policy in the United States,especially while this subject was foremost in the minds of the public following the previously mentioned events in Connecticut and the President’s speech to the nation about them.”
  • “There were, however, other legal means available to demonstrate the point and to pursue this line of questioning with the guest that were suggested to NBC and that could have and should have been pursued.”
  • “No specific intent is required for this violation, and ignorance of the law or even confusion about it is no defense. We therefore did not rely in making our judgment on the feeble and unsatisfactory efforts that NBC made to determine whether or not it was lawful to possess, display and broadcast this large capacity magazine as a means of fostering the public policy debate. Although there appears to have been some misinformation provided initially, NBC was clearly and timely advised by an MPD employee that its plans to exhibit on the broadcast a high capacity-magazine would violate D.C. law, and there was no contrary advice from any federal official. While you argue that some NBC employees subjectively felt uncertain as to whether its planned actions were lawful or not, we do not believe such uncertainty was justified and we note that NBC has now acknowledged that its interpretation of the information it received was incorrect.” Continue reading