Stephen Colbert famously coined the term "truthiness"
on the very first episode of The Colbert Report
. The word is used to explain a person who knows something is true in his or her "gut" rather than via any facts (and, of course, continues to believe that it's true even if the facts contradict the claim). I'm beginning to wonder if there needs to be a similar world for the legal world, where you believe something must be illegal, in your gut, even if the law itself doesn't appear to cover it. That's what we see with folks who want to string up Lori Drew
, the woman whose online conversations with a former friend of her daughter may have resulted in that girl's suicide, despite little evidence that Drew's actions broke any actual law. Yet, because of the quasi-lynch mob mentality of folks who felt in their gut that it must be
illegal, prosecutors eventually twisted a law
to charge her.
Now it's looking like the recent indictment
of a teenager for breaking into Vice Presidential candidate Sarah Palin's email may be facing a similar situation. We had already noted that Justice Department's own definition of the law might make it difficult
to prosecute the hacker. However, now a friend sent over an interesting analysis of the indictment itself, by Orrin Kerr, which suggests the entire indictment is legally flawed
. Specifically, the statute used, claims that the intrusion is only a felony if used to further a criminal activity.
As Kerr notes, it's not clear what criminal activity was "furthered" by hacking into the email -- unless you read the whole thing recursively, such that the act itself is illegal, and thus doing it is furthering that illegal act. But, obviously, that's legally problematic. So once again, it looks like a situation where plenty of people believe that the act was illegal (very reasonably so, I might argue), but the feds are having trouble finding a law that actually makes it illegal. So, do we have any Colbertian suggestions for what this should be called? Illegalism? Illeginess? Illegfulness?