Orin Kerr wonders if the Palin email hack indictment, against the son of a Tennessee Democratic politician, is legally flawed?
"Here's the indictment. And here's the potential problem with the indictment. In order to charge the case as a felony rather than a misdemeanor, the government needed to claim that the intrusion was committed to further criminal or tortious activity. The statute, 18 U.S.C. 1030, states that the intrusion is a felony if the intrusion "was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State."
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 lO30(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.
I'm not sure if the indictment is facially defective based on that. It might be, because it effectively doesn't say what crime the government is charging (in that the the government must show the unauthorized access and also the crime that the access is in furtherance of -- if you're the defendant, how to you defend yourself against an unnamed crime?). But if the government is trying to make this a felony on the theory that the intrusion was designed to further the crime of the intrusion, that strikes me as an extremely weak argument."
What's the betting that if this one gets thrown out by a judge due to the paperwork stretching a point ("the defendant looked at the email in order to... er... look at the email your honour"), that the prosecutors will 'find' a criminal or tortious activity that the teenager intended when considering putting their paperwork together for a second prosecution?