I was thinking last night about the denouement of the Broadview Six case, a collapse which I’m told by some legal observers stands a non-trivial chance of seeing some of the prosecutors disbarred. And I contrasted it with the series of TPM Reader emails about the “fancy lawyers.” A number of these emails start out with some version of, I’m not part of the legal elite, I’m just working here in the trenches as a lawyer in [this or that mid-sized city in the United States]. Or maybe, my background is in elite law but I’m down here in the trenches, etc.
Let me say upfront, in advance of what I’m about to write, that I certainly recognize that these are to an extent caricatures, idealized forms in a binary account which can break down quickly when examined up close. But caricatures exist because they contain essential, revealing truths. And when I thought about yesterday’s events in that courtroom in Chicago, I had this strong sense of this is the rule of law we’re fighting for and these are the people who are fighting. And this matters so much more than that world of legal-speak mystification telling ordinary but knowledgable Americans that what their Constitution says is something that can only be plumbed by someone with rock-star reasoning skills and an Ivy League JD.
And when one of those people tells us that Amy Coney Barrett deserves to be on the Court because she is world class on the Con Law 100-yard dash or pole vault that’s exactly what that person is telling us. And that is a big part of how we got into the present jam.
We’ve seen many versions of this during the ICE reign of terror across major American cities. It shows both the strengths of the real and meaningful rule of law as well as the key democratic elements of our judicial system that have tended to hold up much better under the Trumpist assault than most of the bill of goods we’d been sold on at the elite levels of power. Grand jurors simply refused to bring indictments, a heavy, heavy lift since a grand jury is a collection of ordinary citizens, few of whom have probably ever been on a grand jury before, whose only source of facts or legal counsel is the prosecutor trying to get the indictment. Jurors acquit after minutes or hours, often in ways that blur ordinary factual analysis with jury nullification (which whatever you’ve heard is a totally legitimate part of the judicial process).
In the Broadview case, you had a number of defense lawyers, in several cases former AUSAs from the same U.S. Attorneys office, fighting tooth and nail against what was clearly an abuse of prosecutorial power or just a comically weak case but one that at least seemed legitimate in the narrow sense. By this I mean that the case shouldn’t have been brought and was almost certainly headed to an acquittal but was arrived at through a proper process. They pushed every button and felt for every weak point. And over the last month, first slowly and then in a torrent, the whole thing fell apart: because from day one it was tainted by a scale of prosecutorial misconduct the judge, herself a former prosecutor, said she’d “never seen” in a lifetime of reviewing grand jury transcripts.
Defense attorney Chris Parente, after quipping that the defendants appeared to be good candidates to receive paydays from Trump’s “weaponization fund,” noted that this misconduct mattered far beyond the fate of the remaining four defendants. “It does impact other cases. I know there are other cases right now where people are trying to get grand jury transcripts, and other judges are trying to weigh, like, is the U.S. Attorney’s Office acting in the right way? And based on what I’ve heard having come out of that office, I’m sick to my stomach about what you just described to me. And if it happened here, I can tell you that it’s probably happened in other offices …”
What happened in this case didn’t come from one of Trump’s clown show DOJ lawyers, one of those ones who’ve never tried a case or are known more as Trumpy influencers. All the key actions appear to have come from career lawyers in that office. Now, maybe they were always crooked prosecutors. It’s certainly not that prosecutorial conduct is unknown. But the particular actions in this case speak to a broader contagion — some mix of political pressure and corrupt disinhibition.
If I’m understanding the transcript of yesterday’s closed door hearing correctly, the key misconduct at the grand jury was the work of Sheri Mecklenburg, a 20-year veteran of that office who was the original lead lawyer on the case. Back in February, seemingly out of the blue and with no apparent warning, she withdrew from the case and announced she’d been assigned to work on the Senate Judiciary committee under Sen. Dick Durbin (D-IL). (That’s where she’s working now. Curious whether Durbin has any comment.) The Broadview case was always some mix of abusive and laughable, a wildly overcharged case, which is now again evidenced by the fact that Mecklenburg had to repeatedly commit grave prosecutorial misconduct to secure an indictment. It simply doesn’t add up to me that a career prosecutor, near retirement eligibility, would commit what I’m told is disbarment level misconduct on behalf of a case like this without some major outside force being involved. Possible? Of course. But given the larger political context in which this happened, pretty unlikely.
Nor should we ignore the possibility of disinhibition. If the attorney general is openly crooked and violating his oath, why not? There’s no punishment or consequences.
Regardless, we need to find out. We’re seeing the ultra-high-profile cases where DOJ lawyers indict a former FBI director over a photo of seashells. But there are certainly many more cases out there like what happened in Chicago. And we need to find out all about it.