Persecute or prosecute?

Mark Kleiman is angry because I accused him of wanting to prosecute the people who exposed the hole in Obama's credit card system.

Megan McArdle, who is usually a more careful reader, and Glenn Reynolds, who usually isn't, both accuse me of urging the prosecution of the wingnuts who have been submitting false-name contributions on the Obama website, and criticize me for trying to use the power of law enforcement to suppress criticism the people I support politically.

Just one thing: Nowhere in the post they refer to (reproduced in full after the jump) do I say a syllable about prosecution. I merely point out that the activity violates the law, which means that people doing it shouldn't crow quite so loudly. Of course no actual investigator or prosecutor would waste his time working on a case involving a $5 contribution to Obama in the name of "Mickey Mouse." Neither Megan, who isn't a lawyer, nor Glenn, who is, bothers to offer any reason why the activity in question, which both of them have publicized and praised, doesn't constitute wire fraud as defined in the statute.

I am happy to say that I was incorrect, but this seems to me like a distinction without a difference.  When your candidate is caught violating basic financial prosecuting standards, standards which should, if anything, be stricter for politicians, the correct response is not to point out that uncovering this problem involved technically committed a crime.  The correct response is "This is terrible.  What is the campaign going to do to fix this?" 

All the information that I have gathered indicates that this couldn't simply have happened by accident; you have to systematically uncheck all the security guards that prevent address verification.  I don't read the sinister signs into this that others do--having worked in technology, I can easily imagine half-a-dozen scenarios in which a lazy tech overrode the security rather than actually fix some annoying bug.  Nonetheless.  Whoever is responsible should be fired.

Testing for holes in the system is fraud in the sense that undercover journalists who falsify their resumes commit fraud:  a technical violation that society actively encourages, because it helps us uncover things that are wrong.  If it is possible to commit fraud on Obama's website, then a citizen who uncovers this should be applauded, not least by the Obama campaign, which at least putatively does not want to violate campaign finance standards, nor make it easy for criminals to misuse someone's credit card.

As this story from the National Journal makes clear, the candidate that Professor Kleiman and I both support seems to have systematically weaker protections against fraud than McCain.  That is worrying.  In the end, I don't think it has made much difference; Obama isn't winning because of his massive pocketbook, but because the Republicans got caught in bed with a naked financial crisis.  But the principle is rather important.

And while I'm no lawyer, I'm not sure you could argue that those people did commit fraud.  The crime is not really the individual transaction; it's setting up the system to enable fraudulent transactions.  And no one made the Obama campaign do that.