Please stop posting this misinformation about federal prosecutors lacking discretion. It is a completely false statement.
"The USA [US Attorney] is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority."
The United States Attorney, within his/her district, has
plenary authority with regard to federal criminal matters.
This authority is exercised under the supervision and
direction of the Attorney General and his/her delegates.
The statutory duty to prosecute for all offenses against
the United States (28 U.S.C. § 547) carries with it the
authority necessary to perform this duty. The USA is
invested by statute and delegation from the Attorney
General with the broadest discretion in the exercise of
such authority.
The authority, discretionary power, and responsibilities of
the United States Attorney with relation to criminal
matters encompass without limitation by enumeration the
following:
Investigating suspected or alleged offenses against the
United States, see USAM 9-2.010;
Causing investigations to be conducted by the appropriate
federal law enforcement agencies, see USAM 9-2.010;
Declining prosecution, see USAM 9-2.020;
Authorizing prosecution, see USAM 9-2.030;
Determining the manner of prosecuting and deciding trial
related questions;
Recommending whether to appeal or not to appeal from an
adverse ruling or decision, see USAM 9-2.170;
Dismissing prosecutions, see USAM 9-2.050; and
Handling civil matters related thereto which are under the
supervision of the Criminal Division.
It is necessary for you to actually read the citations referred to by that page (which is just a general summation, not an authoritive declaration on the authority of federal prosecutors), since federal criminal statutes generally do not give "plenary discretion" to federal prosecutors. See ISAM 9-2.020 (The United States Attorney is authorized to decline prosecution in any case referred directly to him/her by an agency unless a statute provides otherwise.)
This is why the law is complicated: you cannot read a law in a vacuum; you must read it in conjunction with all other laws bearing upon the same issue.
You said in many different posts that federal prosecutors in general lack discretion, that their hands are tied. This was a false claim. And you may be the only person in the world who holds this view; I don't think anyone else (Democrat, Republican, prosecutor, or defender) would make this claim.
Now you are arguing that the specific statute at issue did not allow Ortiz and Heymann to decline prosecution. That is a completely different contention, thought it is also false, as it is hard to think of something more subject to prosecutorial discretion than the 1984 CFAA:
The Nosal opinion expresses grave concern that the broad
reading advocated by the government could criminalize much
innocuous activity. In particular, the Court notes that
the phrase "exceeds authorized access" appears in another
section of the CFAA, § 1030(a)(2)(C), which has no
requirement of fraudulent purpose, and requires only that
the person who "exceeds authorized access" has "obtain[ed]
. . . information from any protected computer" (i.e. any
computer that can connect to the Internet). The
government's view, the Court feared, could "make every
violation of a private computer use policy a federal
crime."
Obviously most such cases are not being prosecuted by US Attorneys (discretion!). Yet this is exactly the interpretation that is being relied upon in the Swartz case, that violation of JSTOR's policy was a federal crime. Moreover, general opinion is that CFAA is due for Supreme Court review due to the circuit splits in interpretation. Any federal prosecutor who doesn't want to be overturned by the Supreme Court had plenty of excuses for dropping this prosecution, over and above the obviously unjust nature of the case. Ortiz and Heymann decided nevertheless to take that risk to append a "cybercriminal" conviction to their CVs.
In short, you are just factually wrong here that the federal prosecutors have no discretion in general (your first claim), or that they had no discretion with respects to the statutes at issue here (your second claim).
"The USA [US Attorney] is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority."
http://www.justice.gov/usao/eousa/foia_reading_room/usam/tit...