The government just told the “Broadview Six” defendants that it won’t fight their request for attorney’s fees under the Hyde Amendment.
Perhaps this shouldn’t be a surprise, since the alternative was to hand over discovery about what happened behind the scenes. And, if we’ve learned anything over the last 18 months of this Justice Department, what happens behind the curtain is even worse than what we see in public.
The Hyde Amendment
Back in 2017, I was curious about whether a wrongly prosecuted defendant could recover attorney’s fees from the government. A quick Google search later, and I had my answer: Theoretically, yes; realistically, no way. I wrote about how hard it is to win fees under the Hyde Amendment. That statute, codified as a legislative note to18 U.S.C. § 3006A, allows a defendant to recover fees if the government’s “position” was vexatious, frivolous, or in bad faith.
The courts have interpreted the statute narrowly, saying that it is not intended to award fees where there is prosecutorial misconduct but instead only where the prosecution itself was in bad faith. So, if the grand jury had some basis to indict, the defendant is out of luck, no matter how badly the prosecutors behaved along the way. I called this framework a mistake back in 2017 and urged defendants to continue to file these motions when there was a basis to do so.
The Broadview Six, In Brief
Six people were indicted last October on federal conspiracy and misdemeanor charges tied to a protest outside the ICE facility in Broadview, Illinois. The case fell apart this spring when unsealed grand jury transcripts revealed that the lead prosecutor had vouched for the evidence to grand jurors and had improper contact with a grand juror, and that prosecutors had dismissed grand jurors who wouldn’t vote to indict.
U.S. Attorney Andrew Boutros personally appeared in court in May to dismiss all remaining charges. Judge April Perry had harsh words for the government and its conduct in the case, saying, “I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing. That trust has been broken.”
The Defense Brief – Seeking Fees and Answers
The defendants’ Hyde Amendment filing does two things. First, it asks Judge Perry to award attorney’s fees and costs for a case that ran from indictment to dismissal over roughly six months. Second, it asks for discovery into communications between the U.S. Attorney’s Office and Main Justice, including Associate Deputy Attorney General Aakash Singh and Acting Attorney General Todd Blanche. It notes the 30-day period for the filing and reserves the right to supplement it with new evidence.
As the brief powerfully argues:
The Court’s discovery and revelation of the prosecutors’ serial and severe misconduct before the Grand Jury was shocking. What is of at least equal, if not greater concern, however, is the willful and persistent cover-up of that conduct by the government over the past six months. To date, we believe only a portion of the conduct constituting the cover-up has been brought to light, and further discovery is warranted for Defendants to properly present their Hyde Amendment claim.
The brief lays out the timeline of events and the coverup of the prosecutorial misconduct. It also asks the judge to hold the motion in abeyance until discovery has been completed.
The defense also throws out this nugget, suggesting that there is more in the grand jury transcripts than we’ve seen so far. Apparently, their review of the unredacted grand jury transcripts “has revealed other prosecutorial statements concerning the alleged ‘offense conduct’ that were, at best, made in reckless disregard of the truth and video evidence (if not outright false) that would further support Defendants’ claims as to the vexatious and frivolous nature of this prosecution.”
This seems like yet another example to support my proposal to give all defendants a copy of the entire grand jury proceeding after indictment.
I personally cannot wait to see what else is out there.
The Government’s Response: How Much Will It Cost To Make This Go Away?
The government’s 5-page response does not contest that the defendants are entitled to fees. It attempts to wave away the nature of this concession, saying that is simply a “litigation decision . . . like in any typical settlement” and noting that the government “does not concede that the United States has acted or done anything to warrant those fees.”
Its main argument, which is a reasonable one, is that discovery is needed only when the court must decide whether the defendants are entitled to fees and that issue is no longer in dispute. According to the government, “[t]his seems more like a fishing expedition or an excuse to do discovery rather than a reason. It’s hard to imagine how such discovery would advance negotiations over the amount of fees when entitlement to fees is not an issue at all.”
Two other factoids: The government’s brief says that the matter will now be handled by the USAO’s DOJ’s Civil Division and signed by a prosecutor who has worked for DOJ for four months.
The Reply Brief
The defense filed a response brief pointing out that they still need this discovery to negotiate the fees. Without full information, they write, they cannot fairly and effectively negotiate a resolution for their clients. Given that the government agreed to pay fees within hours of the initial motion, the defense notes that “It seems clear from this timeline that this requested discovery (1) likely exists, and (2) would further expose the bad faith and vexatious nature of the litigation and add to the ‘special factors’ the statute directs be considered, and thereby support the payment of the full amount of Defendants’ billed legal fees and expenses.”
More interesting, though, is their argument that the court should hold a hearing. Without discovery and a hearing, “neither Defendants, nor the Court, nor the public will have a full record and understanding of the bad faith, vexatious, and frivolous nature of this prosecution and the months-long coverup that followed, nor all the persons responsible.”
The argument continues, “[a]llowing the government to bury what remains to be exposed of its misconduct before this Court not only offends justice in this case, it endangers all members of the community who are and remain subject to the authority of the U.S. Attorney’s Office. Without full transparency and accountability, the injustices and type of misrepresentations to the Court that occurred in this case could very easily be repeated, targeting other individuals in our community.”
Another Way to Ensure the Full Story Is Revealed
Given how difficult it is to win a motion for fees under the Hyde Amendment, the government’s admission here is stunning. The only explanation I can come up with is that there is even worse evidence of prosecutorial misconduct that the government does not want to reveal. A quick payment of the requested fees in full may moot the matter. I’m surprised DOJ hasn’t already written a check.
Even if the judge denies the request for discovery in the context of the Hyde Amendment (and the pending vindictive prosecution motion), there is another way for the whole story to be told. When the prosecution of Senator Ted Stevens revealed considerable prosecutorial misconduct, AG Eric Holder agreed to conduct an internal investigation and referred the matter to the Office of Professional Responsibility as well. Even that was not enough for Judge Emmet Sullivan, who wanted an independent review of what happened. He appointed an independent lawyer to investigate and prosecute possible criminal contempt proceedings against the DOJ lawyers who handled the case. Ultimately, Judge Sullivan released the independent counsel’s report.
Given the state of the Justice Department and the fact that it cannot be trusted to investigate this wrongdoing, Judge Perry could appoint “another attorney” under Rule 42(a)(2) to investigate what happened here. That section provides, “Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.” This may, of course, trigger a dispute over that counsel’s access to DOJ records.
This type of wrongdoing should not be swept under a rug.