Is “Under No Circumstances” Acceptable, Judge?

Gems keep coming out of the papers in the battle over the discovery in Jay Michaud’s child porn case.  It’s already come out that the government doesn’t trust prosecutors enough to tell them the truth, because they might turn to the dark side one day and become defense lawyers.  And the government’s been lying to judges because it’s just too easy, since judges will believe anything they say.

But what happens when a judge orders the government to disclose something that government would prefer to keep to itself?  Brad Heath provides the answer:


This is worthy of a repeat:

Here, the Government has already signaled its decision. It has stated that the FBI will not comply with the Court’s discovery order under any circumstances…

In the realist world of the legal system, the “solution” to the government’s refusal to comply is dismissal of the case.  In other words, Michaud walks because the FBI chooses to tell the judge “nope, ain’t gonna do it.” And for Michaud and his lawyer, that’s a pretty good outcome, so they walk away happy.

But that doesn’t do much for the rest of us.  Consider the interests at stake:  Let’s say the defendant committed Crime Everyone Hates in the first degree. The public has an interest in seeing the defendant prosecuted, convicted (we’re assuming he’s guilty) and sentenced (we’re assuming he needs to be locked up or he’s going to commit Crime Everyone Hates on you and yours).

But defendant walks because the Government has decided that its secrecy trumps someone else’s becoming a victim of Crime Everyone Hates.

On a different level, we have the “respect for the law” thing, where everyone, including the government and even its more powerful child, the FBI, is supposedly subject to both the laws of this nation and the orders of a branch of government, delightfully called the judiciary.  This is important enough that it will put your sorry butt in prison for a lifetime or two, so we know this is a very serious concern.  Judges put on their very serious face and talk sternly to defendants about their not respecting the law.

But when the government, by its untrustworthy lawyer, informs the judge that it has told the FBI of the court’s order, and, it’s sorry to say, the FBI says, “nope, not under any circumstances,” what’s a judge to do?  The judge has no army to raid the FBI office and make those nasty agents comply. The judiciary is the least dangerous branch, which means that if it doesn’t smile at the armed branches, it’s totally impotent.

Remember that serious-faced judge, talking sternly at you?  He can do that because the armed guys in ill-fitting suits are only too happy to back up his words with their bludgeons. Hell, they’d do it for kicks on a boring day. But when the judge’s stern words fly in the opposite direction, then the fragility of the system is revealed.

Here, the Government has already signaled its decision. It has stated that the FBI will not comply with the Court’s discovery order under any circumstances…

Whatcha gonna do about it, judge?  We’re awash in platitudes about “justice,” which, like religion, are there to keep the groundlings pacified and compliant, but the guy in the robe has no army to make the FBI do anything.

The realist judge shrugs, because any other response shows he’s got no power to make them comply.  He tells his law clerks, “quick, come up with some boilerplate black letter law that rationalizes why they can talk to me this way, tell me they’re not gonna do it under any circumstances, so I don’t look like an impotent fool. QUICK!!!”  And the law clerks will scurry, because they’re thinking about the Biglaw partnership that will pay for their Ferrari some day.  A judicial clerkship has its benefits, and they don’t want to piss off their benefactor.

The solution will be found in the most severe sanction a judge can impose on the government, dismissal!  Yes, that’s the ticket. Just dismiss the case and that will create the appearance of a powerful and just legal system, one that won’t take any shit from the FBI.

And so the order dismissing the case against the defendant who committed the Crime Everyone Hates in the First Degree is issued, the defendant and his lawyer walk away happy, defense lawyers and media applaud the court’s assertion of hegemony over the guys with the guns, and we believe in the legal system for one more day.

Except the guy who committed the Crime Everyone Hates is free to commit it again on someone’s kid. The lies told to prosecutors, who repeat them to judges, continue to be told. Forget about the lies told to defendants and their lawyers, since no one cares about them anyway, due process being honored only in the breach.  And the government, by its most powerful sons, continues to do as it pleases despite the platitudes about this being a nation of laws, not men with guns.

Why does this happen? Because the alternative reveals that the system can only work one way, where the various branches of government don’t push each other too hard, to the point where a clash of power is unavoidable.  When that happens, the cracks are revealed for all to see, that the legal system works only when the guys with guns want it to work, and the stern-voiced jurists are only as powerful as the guys with guns allow them to be.

There’s an old joke about which part of the body rules.  The punch line is that it’s the asshole.  When the FBI takes the position that it will not comply with an order of the court under any circumstances, it becomes plain that this joke ought to be carved into the lintel over the courthouse door where “Equal Justice Under Law” once was.  Are you good with this, Judge?

18 thoughts on “Is “Under No Circumstances” Acceptable, Judge?

  1. Richard G. Kopf


    Once a long time ago, the FBI did a black bag job on a house used by the Hell’s Angels and installed a super secret “bug,” but my Chief Judge, who had authorized the breaking and entering, had said no to placing it in a bathroom or bedroom. Yet, the recordings established that certain sounds obviously came from both forbidden areas. (I spent 28 days listening to recordings from the bug, wiretaps and the like handling the discovery and suppression issues so my Chief Judge could get ready for his two-month trial.)

    The defendants en masse asked for the location of the bug, but the Bureau said all we will tell you is that we didn’t put in a bedroom or bathroom. The FBI claimed that revealing the placement of the bug would also reveal the capacity of the bug and that was a national security issue.

    I was then an MJ and did not push the government. The defense lawyers did not push too hard either ’cause someone figured out where the bug was placed and roughly how the amazing reach was possible. But, I did a little research anyway. How could I compel compliance and do it in a way that was practical and workable?

    I concluded that I had only one viable alternative and that was a dismissal of the case. I might have also imposed sanctions, but upon whom? The AUSA didn’t know anything about the technology.

    I supposed I could have compelled the government to send me an FBI tech nerd, and then I could have held him or her in contempt. But you know the difference between civil and criminal contempt and all the migraines contempt proceedings involve.

    So, my question to you is this: Can you outline practical and workable steps a single district judge might take to compel compliance? This is not rhetorical.

    All the best.


    1. SHG Post author

      I’m a big fan of constitutional clashes, Judge, so my idea of what’s “practical and workable” will likely be entirely unacceptable. Order the big guy, whether it’s Comey (who wasn’t such a big guy when he was an SDNY assistant) or the local Chief, into Court and to give up the required info. Jail him for contempt upon his second refusal, after the warning, just like he was, oh, a defense lawyer.

      Main Justice will go batshit crazy over this, and the newspapers will run headlines about how the terrorists will win. And the bullshit will be revealed, and we’ll then be able to move forward recognizing the the judiciary branch is, without question, the least dangerous, except to the public.

      Then, someone can come up with a great new platitude to cover the situation and we can all go back to work with a clear understanding that the guys with guns can lie to judges and tell them to kiss their armed asses, and there isn’t a damn thing anyone can do about it.

      1. Hal


        I had a similar thought y’day when I first read this piece, but then thought about the Congressional committee finding Holder in contempt which AFAICT had no effect. Would a court finding COmey in contempt be any different?

        Enquiring minds want to know.


      2. Ergo Sum

        Wouldn’t just the local head of FBI be sufficient jailing him or her for contempt? The judge can always play dominos, if the local guy covers himself with regional/federal head of the FBI, and throw all of them in jail without releasing anyone until they comply with the court order.

        The chances are that your last paragraph is correct, as far as the future is concerned. The Congress can just create a new law that will exempt the LEOs from the laws.

  2. Richard G. Kopf


    The “lying” part is troublesome.

    If someone put into a Title III application or warrant application or affidavit or some other sworn document that “a confidential source” gave them such and such information and the source was actually a device or software program and that fact was not clearly disclosed, then I would be inclined to seriously consider one or both of the following:

    (1) hold the affiant in criminal contempt, and, after a jury trial and verdict of guilty, sentence him or her to prison; and/or

    (2) disbar the AUSA signing the document, although the AUSA may not be the affiant, from practicing in federal court, (a) assuming the AUSA understood the “confidential source” was, in fact, a device or software program and (b) assuming the AUSA signed off knowing the misleading nature of it.

    All the best.


    PS After I swear an affiant, I always ask several question, and end with this one: “Do you have any reason to doubt the accuracy of the statements contained in the application [complaint, etc.,] and affidavit?”

    1. SHG Post author

      There was a young, very nice special narcotics assistant in NYC who, after being informed that one of her cops was the target of an investigation into corruption, put him back into the grand jury for transactional immunity.

      A couple years later, I ran into her, and by that time, Mike Horowitz, now the DoJ inspector general, but then an SDNY assistant, had convicted the cop (along with others). She told me, “I really believed he was telling me the truth. He was such a sweet puppy dog. I thought I was doing the right thing to protect him from you.”

      Everybody believes, Judge. You and I may be the only two people left who don’t know what “justice” means.

  3. PaulaMarie Susi

    Good lord, I thought I was the only one who could say no to a judge (only partially joking here).
    Contempt it is. I see no reason why the DOJ can’t ask to make an ex parte/sealed/Judge’s eyes only showing why they should not be required to comply with the disclosure order (Article IIIs have the highest security clearance. I know, having had to go through the procedure myself for a terrorism case). Comey would find himself in our court in a New York minute. And, I’m certain our USMs would be happy to provide lodging until such time as he complied. Disgraceful.

    1. SHG Post author

      Do you realize that everybody who worked across the river when we were kids is now in Washington with very important positions? And we knew them when. Only Louis Freeh invited me to his swearing in.

      But now, you’ve got Loretta. I keep forgetting about her. Must be old age.

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