Blogging Break

Happy Holidays to all. Blogging will be irregular, possibly nonexistent, until January 5.

Oops

President Bush issued some pardons on December 23, but on December 24, he announced that he was revoking one of them that had caused some outcry and submitting it to his Pardon Attorney for further study. A Justice Department official stated that the President can pull back a pardon until it is delivered to the person who requested it. Is that right?

Amazingly enough, it seems that it is. In United States v. Wilson, 32 U.S. 150 (1833), the Supreme Court stated that "A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance." So the pardon must not only be delivered, but accepted by its subject, before it takes effect. The Court explained that pardons may be conditional, and the subject might prefer to reject the pardon rather than accept the conditions.

The case, and subsequent cases citing it, have been directed more to the question of whether the pardon must be accepted, than to whether it must be delivered, before being effective. Every now and then the subject of a pardon decides he'd rather not be pardoned. So the acceptance question comes up. It's tough to find a case in which the subject was happy to accept the pardon but the issue was whether the pardon had been delivered.

Still, Wilson says that the pardon must be delivered. So assuming that the President had signed the pardon, but that it had not been delivered, it would appear that he still has the power to pull it back. Kind of a silly rule -- it's hard to see what it can lead to besides the kind of embarrassment that's occurring right now. If the President wants to check whether a pardon would lead to a public outcry he could always announce a day or two in advance that he was thinking of pardoning somebody, and see what happens. Once the President signs the pardon, that should be it. But apparently it's not.

Yet More Minnesota Maneuvering

I had a chance to look at the decision of the Minnesota Supreme Court regarding the absentee ballot controversy. I have to say that the dissents seem to have the better of it.

Here's the deal: the county canvassing boards reported their vote totals to the State Canvassing Board, which is now in the process of resolving challenges to what happened at the county level. But one thing that's unclear is what's supposed to happen to ballots, particularly absentee ballots, that weren't counted at all at the county level. Apparently the theory of the Coleman campaign is that the State Canvassing Board can consider a challenge to the way a vote was counted, but cannot consider a challenge to the complete rejection of an absentee ballot that wasn't even opened at the county level. Such challenges can be heard, Coleman recognizes, but only, in his view, in a "contest" held in court after the State Canvassing Board certifies a winner.

It appears that hundreds of absentee ballots may have been rejected improperly at the county level. The State Canvassing Board instructed the county boards to segregate these ballots. But Coleman then asked the state Supreme Court to order that the ballots not be opened at this stage of the proceedings.

And here's what that court came up with: it order that the ballots not be opened and counted now unless the Coleman and Franken campaigns agree that a ballot was improperly rejected. If the candidates agree on that with regard to a ballot, it shall be opened and counted.

And what is the justification for this? Minnesota statute 204C.39 provides that "A county canvassing board may determine by majority vote that the election judges have made an obvious error in counting or recording the votes for an office. " This is the section that the court held to be inapplicable -- I guess the court believes that improperly rejecting and therefore improperly not even opening an absentee ballot cannot be an "obvious error in counting or recording the votes for an office." (It's hard to be sure what the court thinks because it hasn't written up its full opinion yet -- it just issued this order in a hurry.) I guess if you don't open the ballot at all, you haven't counted or recorded it, so the court thinks you can't have made an obvious counting or recording error. OK, that sounds like an unnecessarily restrictive reading (I would say that refusing to count a valid vote is a counting error), but let's give it to them.

But then why can the ballots be opened if the candidates agree they were improperly rejected? Section 204C.38 says that "If the candidates for an office unanimously agree in writing that the election judges in any precinct have made an obvious error in the counting or recording of the votes for that office, they shall deliver the agreement to the county auditor of that county who shall reconvene the county canvassing board, if necessary, and present the agreement to it. The county canvassing board shall correct the error as specified in the agreement."

But notice that the key phrase is essentially identical in the two sections: "obvious error in [the] counting or recording [of] the votes for [an, that] office." Improperly rejecting an absentee ballot and refusing to open it either can be, or cannot be, an "obvious error in counting or recording votes." I don't see how it can be one where the candidates agree but not if the candidates don't agree. It doesn't make sense. That's the point of the dissenting opinions.

Obviously the candidates will not have the right incentives to agree on ballots. Even where the objective indications are that a ballot was improperly rejected, each candidate will be inclined to agree to have it counted only if they think it will favor their side -- and it seems like they'll have a lot of data to guide them, like the voter's name and address (how can they agree on whether a ballot was obviously improperly rejected without seeing the outer envelope, which would have this information?). So it seems unlikely that an appropriate set of the ballots will get counted under this procedure.

Also, section 204C.38 refers to unanimous agreement among the "candidates for an office." So I don't see how agreement between Coleman and Franken can be enough to justify acting under this section -- there would also need to be agreement from the other three, lesser candidates, Barkley, Aldrich, and Niemackl.

The court also cited section 204B.44 in its ruling, but I can't see how that supports the rule the court imposed.

So there's another fine mess the courts have gotten into, trying to invent rules as they go along. I remember the same thing in Florida in 2000. The state Supreme Court's first decision didn't follow the applicable statutes but tried to make up a procedure that seemed sensible in light of the circumstances. Then by the time of the court's second decision, which followed the statutory procedures to the letter, people couldn't believe the court was acting honestly.

With the votes totals separated by a hair's breadth, every little procedural ruling counts for a lot. It doesn't seem like a good idea to count improperly rejected absentee ballots only in a court contest, and it certainly doesn't seem like a good idea to invent an ad hoc procedure for counting only some of them.

0.002%

Al Franken's lead in the Minnesota Senate race is 251 votes right now, but, according to informal counts, after the Minnesota State Canvassing Board accounts later today for vote challenges withdrawn by the two campaigns, Franken will still be ahead, but by just 48 votes. In case you're counting, 48 votes out of 2.4 million votes cast for the two main candidates is a lead of 0.002% -- that's 1/500 of 1%.

Moreover, today's meeting will not end the counting. Still to be resolved are claims by the Coleman campaign that some votes were accidentally counted twice, and how to deal with perhaps 1600 absentee ballots that may have been improperly rejected. There's a long way to go.

I remarked before that where the vote totals are separated by less than 1/100 of 1%, there just doesn't seem to be a way to determine the winner accurately. Obviously that observation applies all the more to vote totals separated by 1/500 of 1%. I'm ready to assume that all five members of the State Canvassing Board are acting in perfect good faith and doing their very best to count every vote with perfect honesty and accuracy. But after watching them squirrel through piles of ballots last week in a moment of confusion, I am hard pressed to believe that they are noting every decision and getting everything right, not just most of the time, but more than 99.998% of the time.

Normally, if people doing some kind of drudgework -- like counting vote after vote after vote -- made a mistake only one time in every 10,000, you'd probably think they were doing a great job. Counting 9,999 votes accurately and accidentally putting just one in the wrong pile seems like excellent work to me. But in this case, mistaking one vote out of every 10,000 would result in 240 incorrectly counted votes -- five times the margin of victory. Of course the mistakes might tend to cancel each other out (if they were random mistakes, that would often be the case), but if the mistakes were even slightly the result of a (possibly unconscious) bias in favor of one of the candidates, they could totally overwhelm the honest difference in the vote totals.

I'm not envying the Canvassing Board their jobs. And the worst of it is, even when they finish (if they ever do), there's still a potential court challenge and a potential Senate challenge.

Infighting Warrior

W. Mark Felt, better known as Deep Throat, the anonymous source behind the Washington Post's Watergate stories in the 1970s, died yesterday. We at GW Law School take special note. Felt graduated from GW Law School in 1940.

When Felt revealed his identity in 2005, the most interesting thing, I thought, was the reason behind his decision to inform. He didn't expressly say so, but it seemed to me that Felt acted partly out of patriotism and a sense that the President and his top aides were wrongdoers who deserved to be denounced, and partly as a tool of bureaucratic infighting. Felt was the No. 2 official at the FBI, and the President and the administration were, he believed, subverting the Bureau's investigations in the Watergate breakins. And there was possibly a touch of personal revenge: Felt had been passed over for the post of FBI Director in 1972.

It was a fascinating insight into how reporters do their work. Where do they get the anonymous sources for those blockbluster stories? The Deep Throat experience suggests that, whatever controversial policy the administration is pushing, whatever crime it's committing, there's somebody, somewhere on the inside, who doesn't like it and who would blow the whistle on it. A combination of noble desire to do the right thing, plus bureaucratic desire to win the policy war, plus perhaps a bit of personal desires as well, opens someone up. The reporter's job is to find that person.

MN Mayhem

I'm watching the live stream of the Minnesota State Canvassing Board recounting individual ballots. (I'd give you the link, but they'll be done by the time you click on it.) The Board is confused about whether they've resolved a challenge to a particular ballot already. Three members of the Board were just standing over piles of ballots, flipping them over and putting them in different piles. Now Coleman's attorney is arguing about whether they resolved the challenge yesterday or not. Now both attorneys are standing up with the Board watching them dig through piles of ballots.

How can this possibly all be done correctly? The Board's been running through challenges all day -- I watched a bit earlier -- and they do most of them in about 20 seconds or less, and the results are noted down somewhere, but now they're arguing about which challenges have been resolved, whether the results have been properly noted down, which notations are typos, and so on.

In a race that's currently separated by about 40 votes (as counted by the MN Star Tribune), it just seems impossible that they're going to resolve it accurately with all this chaotic counting going on. Even if all the challenges are accurately resolved, I don't see how they can accurately tabulate the results.

Judicial Restraint

The Illinois Supreme Court has denied the state Attorney General's request to remove Governor Rod Blagojevich from office on an emergency basis or to temporarily strip him of many of is powers. But the Court denied the requests "without comment" -- it hasn't even bothered to post the order on its own website (I suppose it might be up by the time you click) -- so it's a little hard to say what's really going on. It's not clear from the reporting whether the Court agreed with my analysis that it lacks power to remove the Governor for political or even criminal misdeeds (I'm sure this blog is highly influential in Illinois judicial circles) or whether the Court has merely denied the Attorney General's request for immediate relief, while retaining the potential for the case to move forward more slowly.

I'm guessing the Court doesn't want any part of the controversy. But if the Court thinks there's no legal basis for it to act in this kind of situation, it should say so.

Madoff Followup

A couple of fascinating articles on the Madoff fund implosion point out some really bad news for investors: if you were invested in the Madoff fund, but you smelled something fishy about it and sold your shares before the big fraud was revealed, you may be compelled to give back your profits. So even those who got out safely, didn't get out safely.

Why? Because bankruptcy law permits the bankruptcy trustee to "avoid" (i.e. get back) transfers of money that was transferred by the bankrupt party at a time when the party was insolvent if the bankrupt party did not receive reasonably equivalent value in exchange and the transfer was made to hinder, delay, or defraud any creditor. In a similar, recent case involving the Bayou Fund, a court held that every redemption (i.e. sale of shares) met these criteria: the fund's share price was, like the Madoff Fund's, imaginary -- the fund managers were just making it up to preserve the appearance of good returns. So when shareholders redeemed their money, the fund was transferring out more money than the value of the shares it was getting back. And the fund was insolvent. And the fund did this to preserve its big fraud. So the criteria for avoiding the transfer were met. The court held that an investor could defend against the claim for return of the money by showing that the redemption was made in "good faith" -- that the investor had no inkling anything was wrong with the fund -- but this was a defense, it would be up to the investor to show it, and it wouldn't apply if the investor saw some red flags before getting out.

One of the articles linked above states that there is no time limit on these avoidable transfers. That seems, based on my quick research, to be mistaken: the bankruptcy law section linked above sets a time limit of 2 years. But I'm not a bankruptcy expert and there could be some other section that looks back even further.

But certainly resolving the Madoff fund's problems is going to be a big, big mess for investors, even those who thought they'd gotten out.

To Catch a Thief

Now that Bernard Madoff has been arrested for pulling off a $50 billion Ponzi scheme, editorialists are naturally wondering what to do, and the Wall Street Journal is taking the opportunity to warn against using the incident as an excuse for more regulation. With the hard-nosed, clear-eyed thinking for which the free market's champions are famous, the WSJ tells us that "The reality is that it is impossible for the SEC or any regulator to prevent every financial fraud, just as it is impossible for city police to prevent every burglary." So I guess the message is that we should just accept that every now and then someone will steal $50 billion and not expect government to prevent it. The last thing we want is for "every enforcement failure [to] become an excuse for more enforcement."

Sorry, but what the WSJ analysis overlooks is that at least some smart people did detect the Madoff fraud. Aksia LLC, which advises clients about which hedge funds to invest in, warned against investing in Madoff as early as last year. How did they spot the potential fraud? As they recounted in a recent letter to their clients, they just did the basic due diligence. They noted many suspicious things: Madoff's vast fund was audited by a 3-person audit firm (and only one of the three employees seemed really active); the market in which Madoff traded was too small to support the huge sums he claimed to trade; he didn't have enough actual holdings; and so on. And with their suspicions heightened, the Aksia LLC people checked up: they actually visited Madoff's offices to check up on his vaunted technology, but found only paper tickets and no apparent electronic access to his holdings.

So it seems that what was really necessary to catch this thief was some due diligence. Not taking everything on faith, but actually checking up on some basic details.

Now, why couldn't the government have done that? The WSJ may be right that the SEC doesn't need any new enforcement powers as a result of this incident, but it sure does seem like we could use some more actual exercise of the powers the SEC already has. It seems like they were just asleep at the switch, doing a "heckuva job" doing nothing while the crisis was building. I don't know how related this is to the fundamental problems we've seen in the Bush Administration all along, but it does seem thematically related to the attitude that the government should mostly do nothing and let us all take care of ourselves, whether there's a real or an economic hurricane coming in.

A Shoe to Throw

What I enjoy about the stories about the Iraqi journalist who threw his shoes at President Bush is that they all take care to explain that "Throwing a shoe at someone is considered the worst possible insult in Iraq and is meant to show extreme disrespect and contempt" (Wash. Post) or "Hitting someone with a shoe is considered the supreme insult in Iraq." (NY Times). These explanations should be helpful to readers who imagined that in cultural context throwing the shoes was some kind of compliment ("You are so great that I give you my shoes!").

Really, though, it is interesting that a culture has such expressive gestures. What have we got? We have "not gesturing with all five fingers," as the President delicately put it, and there are even ruder hand gestures, but I can't think of anything as vivid. It seems we have a gesture gap.

A Leg to Grandstand On

OK, I did a little basic research (which I should have done before posting yesterday), and, what do you know, Illinois does have an unusual setup that gives at least some color to state Attorney General Lisa Madigan's request that the state Supreme Court remove the Governor from office.  But I still think there's an element of grandstanding about it.

Here's the skinny:  Section 6(d) of Illinois's state constitution does indeed provide that the state Supreme Court shall, as provided by state law, or under its own rules in the absence of such a law, have jurisdiction to determine whether the Governor should be removed from office because of "death, conviction on impeachment, failure to qualify, resignation, or other disability."  That's the provision that Attorney General Madigan cites in her extensive filing with the Illinois Supreme Court asking it to remove the Governor.

So Madigan does actually have a leg to stand on.  But I'm still thinking it's more like a leg to grandstand on.  Even Madigan admits in her filing that the history of the Illinois constitutional provision, as shown by an exchange at the Illinois constitutional convention, suggests that the term "disability" is limited, as one would most naturally expect, to a physical or mental disability that prevents the Governor from discharging the functions of his office.  She claims, however, that the "plain meaning" of the term encompasses anything, including a political problem, that prevents the Governor from serving effectively.

I'm sorry, I just don't buy it.  The fundamental problem is that a court is ill-equipped to make such a political judgment.  Sure, the current case seems pretty clear, but what about the fact that the Governor had a 13% approval rating even before the scandal broke?  Would we want a state court making a judgment about whether such a low approval rating was a "disability" that prevented the Governor from serving?  I don't think so.

The strong tradition, certainly at the federal level and in every state I've ever heard of, is that the situation of a crooked chief executive is handled by impeachment, which is vested in a political body, not a court.  Illinois is free to depart from that tradition, but it would take much clearer language than "other disability" to convince me that it had done so.

Madigrandstanding

Illinois Attorney General Lisa Madigan has petitioned the state Supreme Court to remove Governor Blagojevich.

She what?

Look, I'm not an expert in Illinois state law. Maybe the state Supreme Court there has the power to declare the Governor out of office. But I never heard of such a thing. When a Governor or President has done something so awful that he has to go, the remedy is impeachment. Courts are not empowered to remove them.

During the Clinton years, what would have happened if some attorney had asked the U.S. Supreme Court to declare President Clinton out of office? That would have been laughed at.

Again, this is all subject to the caveat the maybe Illinois has some unusual setup. But it sounds like grandstanding to me.

Senate Seat Follow-Up

As I remarked yesterday, the Supreme Court case of Powell v. McCormack makes it pretty clear that the Senate would not have the power to refuse to seat a Senator appointed by Illinois Governor Rod Blagojevich to fill the seat vacated by Barack Obama (although, having seated the appointee, it could vote to expel him or her by 2/3 vote). The news is starting to catch up to this point.

But what if the Senate did refuse to seat Blagojevich's pick? Could a court actually order the Senate to seat the person?

This gets a little more complicated. The relief issued in Powell v. McCormack was declaratory. The Supreme Court determined only that Powell was entitled to a judicial declaration that the House of Representatives was without power to exclude him from membership. Further relief was unnecessary, because Powell had been re-elected! He was excluded from the 90th Congress, but he had been re-elected to the 91st Congress and was seated in that Congress. So the Supreme Court didn't face the ultimate question about how far a court could go in ensuring compliance with its decision.

The Court's opinion (which was unanimous) did say that declaratory relief can "be used as a predicate to further relief, including an injunction." So the prospect for a coercive order that an appointee be seated is there. Still, somehow I think the current Court would be more receptive than the Powell Court to the argument that courts lack power to issue coercive relief directed at a House of Congress.

So while Powell seems to make it pretty clear that the Senate could not refuse to seat a Blagojevich appointee, it's less clear what would happen if the Senate did that anyway.

Illinois Senate Seat

Despite calls for his resignation, as of right now, Rod Blagojevich is still the Governor of Illinois, and he could still name anyone he wants to the U.S. Senate seate vacated by Barack Obama. Various news stories are suggesting that if he exercised this power, the Senate might refuse to seat whoever he chooses. According to these stories, the Constitution gives the Senate the power to refuse to seat the Governor's choice because the Senate has the power to judge the qualifications of its members.

Could the Senate refuse to seat Blagojevich's pick? I don't think so.

It's true that Article I, section 5 of the Constitution provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." But in Powell v. McCormack, the Supreme Court held that this clause refers only to "the standing qualifications prescribed in the Constitution": that the member be a specified age, a citizen of the United States for a specified amount of time, and an inhabitant of the state for which he serves. The Court specifically rejected the ability of a house on Congress (in that case the House of Representatives) to exclude someone because of what the house regarded as his moral unfitness. That would seem to extend a fortiori to moral unfitness in the person who appointed a member.

So it seems to me that the Senate would have to seat a replacement picked by Blagojevich. The Senate could then immediately vote to expel that person. But an expulsion is different from an exclusion: in particular, under the Constitution, it requires a two-thirds vote. That might well happen, but it's a higher hurdle than an exclusion, which requires only a majority vote.

OMFG

It's not often that I am completely blown away by something unexpected when I casually click on the headlines, but this time I certainly was. Just in case you thought you had seen everything crazy that politicians do, be sure to click here. Of course at this stage it's only an allegation, we have to assume innocence, but it's said that it's captured on tape.

What is up with these characters? On top of the outrageousness of the crime itself, I am, as with most of the previous cases, stunned by how anyone could possibly be so stupid. How could anyone possibly imagine that he would get away with this? And how could it be so blatant? Of course I would never have this problem because if I were a governor it wouldn't even occur to me to try to sell a U.S. Senate seat, but even if you were the kind of person who would do this, wouldn't you at least do it with a modicum of discretion? I mean, I know there are crooked politicians, but somehow I imagined that even they employ roundabout periphases that give some degree of plausible deniability. Look at Ted Stevens. He was found guilty, but even he hadn't given the government a smoking-gun, straight-up, goods-for-votes trade. That's why he was only convicted of failing to report gifts.

If the evidence in the current case is true, we have outrageous, flat-out bribery. It's utterly corrupt and it's unbelievably stupid.

Minnesota Brainstorming

As the Minnesota Senate recount grinds agonizingly on, one thing seems clear: there is no way to decide who truly won a race that's this close. I've been trying to think up ideas, but I'm afraid my best brainstorming hasn't solved the problem.

Running all the ballots through the machines and accepting the count is not the solution. Machines make mistakes. When you see a ballot that's marked with only a two-stroke "x" in the oval for the Senate choice, you know that's something the machine might not pick up. But when you see that the voter put only "x"s in the ovals for every election on the ballot, you know that the voter intended to vote for the candidates marked with the "x"s. As you look at images of the disputed ballots, you see many similar situations where the voter's intent is clear, but where it's understandable that the machine might not have counted it. Human judgment is necessary.

But humans make mistakes too. Judgment calls can be clouded by partisanship, intentional or unconscious. Even if everyone involved is counting with perfect honesty, there are still screw-ups. Humans can put ballots in the wrong pile. Counting a pile of 1000 ballots, humans might come up with 997 or 1004. Some ballots disappear.

And by the way, while it might seem that the solution to human partisanship is to trust the machines and say that it's just too bad if voters are too dumb to fill out their ballots correctly, remember that the apparently impartial solution of trusting the machines is actually partisan; the partisanship is just implicit rather than explicit. Democrats (at least according to conventional wisdom) have a higher error rate in filling out their ballots than Republicans, so putting the whole thing in the hands of the machines has the effect of giving a small edge to Republican candidates.

If the vote totals were separated by 1%, none of this would matter. 1% seems like a whole lot in the context of this recount. Even half a percent -- the statutory limit for automatic recount -- would be a luxurious margin. In this case, as in Florida's 2000 presidential race, the vote totals are separated by less than 1/100 of 1%. Even a margin of 0.02% would give me a lot more confidence that we would know the true winner at the end. The 0.01% difference seems impossible to resolve correctly.

Holding a runoff where no candidate reaches 50% (as Georgia did), would have solved the problem of this race, as would instant runoff voting, in which voters also vote for their second and third choices, and in which those votes immediately count if no one breaks 50%. Here, Dean Barkley's 400,000 votes would have been immediately distributed between Coleman and Franken and would, in all likelihood, have clearly broken the tie.

But neither of these methods really solves the problem. They would have worked this time, but might equally well have created trouble another time. For example, if Coleman had 44%, Franken had 42%, and Barkley had 14%, the election would have been clearly decided under the existing first-past-the-post rule, but distributing Barkley's votes under instant runoff might have created precisely the 0.01% difference that we see now. A candidate might have a clear plurality margin in an initial election but the runoff might result in a tie. So runoff and instant runoff (although perhaps desirable for other reasons) are just as likely to create an almost perfectly tied vote as it is to break one.

Similarly, one is tempted to say that the rule should be, "if the vote totals are separated by less than 0.01%, redo the election." But does that really help? Again, it just pushes the marginal cases out to a different line. There could be just as must trouble deciding whether the margin is above or below 0.01% as there is deciding which candidate is ahead under the current standard.

A better rule might be to vest someone (presumably the Secretary of State) with discretion to decide whether the election is so close that it should be redone, with the statutory guidance that redos should occur when the margin is about 0.01%. That would allow for a decision to be made without agonizing about determining the exact margin. But of course the fatal flaw with this method is that it would be impossible to find someone who could be trusted to exercise the discretion impartially.

Perhaps the best thing I can come up with is this: if the machine count on election day produces a margin of less than 0.5%, hold a recount, and if the margin is less than 0.01%, do the election over without a recount. That way the costs of a recount are avoided when it seems likely in advance that the election cannot be decided accurately. But again, even that method doesn't really solve the problem. It takes care of the present case, but still leaves trouble in the case where the initial machine count produces a margin of 0.02%, but the human recount is more closely tied.

Sorry, there's no solution. No matter what you do, there are going to be cases in which the count is too close to whatever line you've drawn.

I guess the ultimate solution is too increase the accuracy of voting on election day to the point where we can really trust the machine count and not have recounts even if it's really close. But that was the point of touch-screen voting, which has turned out to be a disaster.

The real solution is to win by a bigger margin.

The Next Attorney General

The New York Times editorial page today focuses on the next attorney general, pointing out the slew of problems the new A.G. will face.

Here's my advice: on the first day in office, the new A.G. should issue a memo to all employees in the Department that says, "All hiring for career positions is to be done strictly on the basis of merit, with no consideration given to ideology or politics. To those employees involved in hiring, this is a directive, to all others; it is a pledge."

As a former Justice Department employee, I was particularly offended by the politicization of career hiring at the Department. Of course hiring for political positions is political. But career hiring should be politically neutral. The Department should hire the best people it can find. There's no need to hire loyalists for career positions -- the career staff takes direction from the political staff.

A clear directive to this effect from the new A.G. would set the right tone for the new administration.

MN Recount Drags On

They're still counting ballots in Minnesota. For an interesting peek into the process, you can take the Star Tribune's vote-counting challenge: the paper presents pictures of 599 challenged ballots. (A free but rather annoying registration is required.)

I say interesting, actually it gets dull rather quickly. Unlike the ballots presented by Minnesota Public Radio, most of these ballots seemed crystal-clear votes for either Coleman or Franken -- at least, that's what I thought. There were a few toughies, but most of the challenges strike me as frivolous. So not as interesting as the MPR display I linked to previously. (And another defect is that the Star-Tribune's display doesn't show you how other viewers voted on each ballot, the way the MPR one does.)

Apparently Franken's team is going to withdraw a bunch of challenges ("more than dozens," they say). Good. There's no point wasting time on ballots that are obvious Coleman votes. Coleman's side should do the same. Many of the challenged ballots are clear-cut Franken votes.

The ballots challenges have obscured the issue of who's actually ahead. If one side challenges a vote that was previously counted for the other, that vote is removed from the total until the State Canvassing Board's ruling. So although the vote count currently puts Coleman ahead by even more than on election day, the total misleadingly misses many clear-cut Franken votes that Coleman has challenged. And some of the same is going on in the other direction. So the current margin is somewhat meaningless. There's just no knowing the outcome until the State Canvassing Board rules on the challenges. Sorry, but we'll just have to wait.

It's Not YourSpace

Sorry for the break, Faithful Readers -- I was away for Thanksgiving.

Perhaps the most interesting legal story over the break was the Myspace cyberbullying verdict. Lori Drew, a woman in her 40s, created a fictitious persona of a teenage boy on MySpace and used it to send messages, first friendly and then nasty, to a teenage girl who had had a falling out with Drew's daughter. The girl committed suicide after receiving the message "the world would be a better place without you” from her fictitious friend. Drew was convicted last week.

Drew's conduct was obviously horrible and it had terrible consequences. But not all such conduct is a crime. It's important to be careful about stretching the boundaries of criminal law to cover anything that some prosecutor wants to punish. Prosecutors are often busy pushing their own careers and sometimes seem to lack the sense of restraint that one would hope accompanies the exercise of prosecutorial discretion.

In this case, Drew was convicted of violating the federal Computer Fraud and Abuse Act. This statute, as one would imagine, has primarily been applied in cases of what one would think of as real computer hacking -- breaking into computers that one isn't supposed to be accessing. But, looking carefully at the statute, one sees that it applies to anyone who "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer if the conduct involved an interstate or foreign communication." 18 U.S.C. § 1030(a)(2)(C). And the crime is a felony if it was done "in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." § 1030(c)(2)(B)(ii). "Exceeds authorized access" is defined as "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter."

Drew was supposedly guilty of this crime in that she violated the "terms of service" of MySpace by giving false information when she created the fictitious MySpace profile. The U.S. Attorney in Los Angeles has evidently decided that pretty much any violation of a website's TOS is a federal crime.

Looking at the text of the statute, I would say that, if it weren't for the definition of "exceeds authorized access," it would be pretty clear that Drew did, in fact, violate the statute. Without the definition, the statute basically says that you're not allowed to access other computers in an improper way. The exact definition given in the statute leaves some room for doubt: did Drew obtain information she wasn't entitled to? If you could have gotten the same information with an honest access, it's not totally clear to me that the information is information you are "not entitled . . . to obtain." But it is at least arguable.

So based on the text of the statute, I would have to say that the U.S. Attorney is not totally out of bounds. Even with respect to websites that are right out there on the Internet for anyone to access, there's a decent argument that that Congress has made it a crime to access them in other than the proper way.

The real question is whether this is the world we want to live in. Judging from the number of messages I get from people who call themselves "v4vendetta" or "Crouching Lesbian" or the like, people like the anonymity of the Internet. We don't want to have to give all our real personal information just to look at a website or send someone else a message. Of course this means that the Internet is a breeding ground for fraud, but we are content to let caveat emptor rule the day and to count on people to understand that there isn't really millions of dollars waiting for them in a blocked Nigerian bank account.

So one might even think that the verdict represents an appropriate compromise -- Drew was convicted of misdemeanors only, and perhaps the answer is that prosecutors will ignore the millions of violations of the statute that probably occur every day, and trot out the statute only when, as in Drew's case, someone uses unauthorized access to a computer for truly bad ends. But at the same time, it's important to remember that the terrible consequences that occurred in this case are not an element of the crime of conviction. If this verdict holds up, it means that people are committing crimes when they use a false name to look at a weather forecast on the Internet. I do find it somewhat chilling to know that prosecutorial discretion is all that stands between people who give a flase name to any Internet site and a jail cell. Some tightening of the statute would, I think, be a good idea.