Supreme Court Justice Neil M. Gorsuch worries about big government. About agencies that overreach and infringe the rights of unwary and unsophisticated individuals. About using the overwhelming force of criminal law to bludgeon relatively minor wrongdoers. About the federal government supplanting the power of state and local governments that are closer to the needs of their citizens.
By Ruth Marcus
These are all serious concerns, and they form the subject of Gorsuch’s new book, “Over Ruled: The Human Toll of Too Much Law,” written with his former law clerk, Janie Nitze. Gorsuch and Nitze make their case through sympathetic snapshots of citizens pursued by overzealous regulators and prosecutors, while giving short shrift to the ways in which we all benefit from having a clean environment, safe products and a law-abiding citizenry.
My perspective differs. “Over Ruled” overstates the problem with government oversight, whether regulatory or criminal, and undervalues its importance and benefits. But different strokes. My beef in this column is not with Gorsuch’s more libertarian worldview. It’s with the license he takes in making his case about the “human toll.” His book is dedicated to “the men and women whose experiences are recounted in these pages,” yet Gorsuch’s recitation omits inconvenient facts that undercut his argument.
If “Over Ruled” has a hero and heroine, they are John and Sandra Yates, a Florida couple whose story is threaded through its pages. Chapter 1 opens with the harrowing tale of Sandra Yates doing laundry one morning in 2010 when “seven agents in bulletproof vests, hands primed on holstered guns,” approached her Anna Maria Island bungalow.
They were looking for her husband, John, a 58-year-old commercial fisherman “who had worked his way up from deckhand to captain of his own small crew,” and who, Gorsuch writes, “was just as confused as [Sandra] was” when federal agents turned up to take him away in handcuffs: “After all, he had a nearly blemish-free record as a fisherman, and he couldn’t remember having done anything that might interest the authorities.”
Gorsuch goes on to describe what sounds like a classic tale of government gone wild, and maybe it was. In 2007, a state wildlife agent who boarded Yates’s boat in the Gulf of Mexico found, in a 2,000-pound catch, 72 undersized red grouper, almost all of them just short of the 20-inch harvesting minimum. A few days later, when Yates’s boat returned to dock, the agent found just 69 undersized fish and “grew suspicious that the fish at the dock were not the same fish he had measured at sea,” Gorsuch writes.
Nearly three years later, the federal agents — the state inspector had been cross-deputized as a federal official — came knocking, even though the minimum harvesting size by the time of Yates’s arrest had been reduced to 18 inches, meaning his earlier catch would have been legal.
Yates was charged with violating the Sarbanes-Oxley Act, the federal law passed in the wake of the Enron scandal to go after evidence tampering. The law prohibits destroying documents or any other “tangible object” with the intent to impede or obstruct a federal investigation.
After declining a plea bargain, Yates was convicted and sentenced to 30 days. He had to spend Christmas in prison, away from his grandchildren, and had to wear an ankle monitor upon his release. He lost his house. It took until 2015, but the Supreme Court, dividing 5-4, overturned his conviction, finding that a fish was not a “tangible object” for the purposes of Sarbanes-Oxley.
“How did we get here?” Gorsuch wonders. “How can a fisherman face the possibility of decades in federal prison … for allegedly throwing fish overboard and not one of the dozens of officials who touches his case says, ‘Wait a minute … ’? How can that same fisherman then go on to lose his livelihood — and lose his case before a jury and then again before an appellate court?”
Sounds outrageous, absolutely. But here’s the part Gorsuch left out: When the agents left the boat, according to testimony presented at the trial, Yates told the crew he “wasn’t stupid,” and if the agents “wanted to make sure that the fish were still there, they should have put a mark on their foreheads.” He told a crew member to throw the 72 undersized fish overboard and replace them with larger ones. Then, according to testimony, he told the crew member to lie to law enforcement and say they were the original fish. (Notably, though, the jury acquitted Yates of making false statements to the agent.)
Wow. Maybe Gorsuch didn’t know the whole backstory? Reader, he did. The Justice Department provided those facts in its brief to the Supreme Court. You might know that information and still think the government overreached in making a federal case out of this. (Justice Elena Kagan, dissenting in the case, lamented “overcriminalization and excessive punishment in the U.S. Code.”) But you might also think that a Supreme Court justice would provide a fuller factual presentation.
This isn’t the only such instance in “Over Ruled.” Another of the characters whose treatment Gorsuch laments is Aaron Swartz, a computer wunderkind who used the MIT computer system to download an enormous trove of articles from JSTOR, a not-for-profit database of scientific and academic articles for which educational institutions pay substantial sums.
“The motive for Aaron’s conduct remains unclear, but many suspected that he intended it as an act of civil disobedience in line with his belief in open access to ideas and information,” Gorsuch writes. “Regardless, once caught, he returned the articles to JSTOR and the company considered the matter closed, telling the U.S. attorney’s office that it ‘preferred that no charges be brought.’”
Swartz’s story is tragic. He was charged with multiple federal felonies involving wire fraud and computer fraud, and was facing 35 years in prison. Prosecutors offered a plea bargain but insisted he plea to a felony count and three months in prison. When Swartz refused, they upped the charges and demanded six months. He died by suicide at age 26, before the case went to trial.
Was this a terrible case of prosecutorial overreach? Once again, to read Gorsuch, it sure looks that way. And once again, the Gorsuch recitation minimizes the underlying facts. As University of California at Berkeley law professor Orin Kerr has laid out, Swartz’s effort to download the JSTOR database was no one-time lark, but a sustained campaign marked by attempts to avoid detection.
He used a program called keepgrabbing.py to exceed the database limits on downloads. When JSTOR cut him off, he changed his IP address. Then he bought a new laptop to spoof the system and circumvent the ban on his new IP address. He then used a basement server closet at MIT to connect his computer directly to the university network, downloading a major portion — several million articles — of the JSTOR database. Entering the closet to swap out storage devices, he put his bicycle helmet in front of his face to hide it from any surveillance. When police tried to stop him for questioning, he ran away.
As with Yates, this is the kind of behavior that understandably gets prosecutors’ attention. “Stealing is stealing, whether you use a computer command or a crowbar,” then-U. S. Attorney Carmen M. Ortiz said when the indictment was unsealed.
Nitze, Gorsuch’s co-author, told me that “as our book makes abundantly clear, our concern isn’t with re-litigating whether John threw fish overboard or with rehashing the technical intricacies of how Aaron connected to the MIT network or JSTOR,” and “for that reason we didn’t delve into many details of their cases, including a wealth of evidence favorable to their defense.”
Rather, she said in a statement, “our book raises deeper questions. Even if they did something wrong, did John and Aaron deserve to be labeled federal felons? Spend time in prison? Have their families and livelihoods destroyed? Driven perhaps even to end it all?”
“What do their experiences have to say about the health of our criminal justice system, the rise of plea bargaining, and our aspirations for living under the rule of law?” Nitze added. “And if the core charge here is that we show some sympathy to John and Aaron’s plight, so be it.”
Maybe prosecutors came down too hard on an idealistic, if misguided, young man. Certainly, the outcome was tragic. In both the Swartz and Yates cases, the underlying facts are complex and murky. But also in both cases, the portrayal of the individuals involved leaves out evidence that would help explain what happened.
To build on the famous words of Sen. Daniel Patrick Moynihan, everyone is entitled to their opinions, but every reader is entitled to a full set of facts.
