I will have more to say about why Andrew Boutros so aggressively denied the claim — in Sheri Mecklenburg’s retirement letter, which I first saw published by NYT and Chicago Tribune — that he directed her to pursue a felony charge after she recommended a misdemeanor.
You recklessly agreed in court that I had committed misconduct without even asking for my account, fully reviewing the record or briefing the law. That evening, you sent an office-wide email laying responsibility at my feet for a felony prosecution that you personally directed over my objection that the case was better suited to misdemeanor charges.
For now, though, I want to note how selective Boutros’ office is being about its claim all this is privileged.
In the response brief signed by Boutros, he claimed exonerees’ requests would be covered by privilege in four different places. (Throughout, I’ve marked Boutros’ invocation of privilege in hot pink bc it’s Friday, and sometimes you gotta live a little.)
In a section arguing against contempt charges, Boutros said such proceedings would impinge on separation of powers.
Such proceedings undermine the Constitutional separation of powers “between executive and judicial roles” and can be expected to implicate “intra-office conversations and memoranda,” legal advice and work product, and inter-agency communications that are “covered by multiple privileges” such as the deliberative process and pre-decisional privilege, In re United States, 398 F.3d at 618, as well as inter-agency and attorney-client privileges, among others. United States v. Zingsheim, 384 F.3d 867, 871-72 (7th Cir. 2004) (discussing various Government privileges).
Immediately after discussing contempt law, Boutros launched into a claim that Judge April Perry didn’t have the authority to delve into privileged charging decisions.
This Court has inherent power to sanction for conduct that obstructs justice, but cannot conduct an investigation pursuant to its inherent authority into, for example, any deliberations or predecisional considerations within the United States Attorney’s Office. See, e.g., In re United States, 398 F.3d at 618 (“The intra-office conversations and memoranda that the judge wants to see are covered by multiple privileges” and as such, “federal judges may not insist that prosecutors reveal deliberative or pre-decisional materials”).
In a section arguing exonerees should get no discovery, Boutros says they can’t have it because it is all privileged.
To the extent former Defendants request this Court compel the Government to give them materials as part of a contempt proceeding, that should be denied since there is no prima facie showing of contempt. Furthermore, much of the discovery that former Defendants seek is protected from disclosure pursuant to various privileges, including privileges unique to the Government. See supra p. 19; Zingsheim, 384 F.3d at 871-72 (discussing various Government privileges).
Two paragraphs later, still discussing discovery, Boutros invoked Trump v. US and said the President can order up prosecutions but defendants can’t discover it, in part because of privilege (and in part because of separation of powers).
Separately, as the Supreme Court recently held, “[i]nvestigative and prosecutorial decisionmaking is ‘the special province of the Executive Branch,’” and so even the “President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.” Trump v. United States, 603 U.S. 593, 620 (2024) (quotations and citations omitted). Thus, members of the Executive Branch are constitutionally required to “take Care that the Laws be faithfully executed,” and it is entirely appropriate for them to “decide which crimes to investigate and prosecute.” Id. (quoting U.S. Const. Art. II, § 3). Although the Supreme Court in 2024 made clear that the law permits such interactions, as already noted and consistent with Department policy, in this matter, the United States Attorney reported the Office’s charging decision to Main Justice shortly before the first grand jury presentation in this case. R. 110 at 4, n.2.15 Former Defendants are not entitled to any communications relating to charging decisions or any other intra-agency or interagency communications, including those with other individuals in Main Justice or federal law enforcement, because the law disallows their access to such communications both as a matter of separation of powers and privilege.
LOLGOP and I did a whole video about that move.
Of absolutely critical importance, that Trump v. US passage cites to Footnote 15, now the subject of a heated discussion (as I wrote about here).
15 On July 15, 2026, counsel for one of the former Defendants sent an email to the U.S. Attorney’s Office asking whether the Office “still stands” behind its assertion that there were “no communications” “with anyone outside the USAO” regarding “who and what to charge” or its “investigatory or charging decisions.” R. 110 at 3 (bold in original, italics added). The Front Office is not aware of any communications in which it took direction from anyone outside the U.S. Attorney’s Office regarding its decisions as to what investigatory steps the local prosecution team would take or who the local prosecution team would charge when prosecutors went into the grand jury to indict this case. Out of an abundance of caution, the Office notes there was a virtual meeting on September 27, 2025, among Main Justice lawyers, the Chicago U.S. Attorney’s Office, lawyers from at least one other U.S. Attorney’s Office on the West Coast, and many federal law enforcement agencies where the September 26 “Broadview” incident was mentioned (and a public video played) as part of a broader discussion of incidents and conduct against ICE during that time. To the Front Office’s knowledge, the virtual meeting did not mention the identity or political affiliation of any person. It was only later when Chicago FBI agents assigned to the case began investigating the matter that the Office learned the identity of some of the people involved in the incident. Moreover, as would be expected in the normal course, there were discussions between the Office and Main Justice regarding such things as case updates, especially given the publicity the case generated after it had been charged. These privileged discussions are not only permitted but are contemplated. See supra 19; In re United States, 398 F.3d at 618 (“How the United States reaches its litigating positions, who said what to whom within the prosecutor’s office, and so on, are for the Attorney General and the President to evaluate. The Judicial Branch is limited to assessing counsel’s public deeds.”). [non-pink emphasis original]
Boutros is relying, a lot, on privilege claims. But privilege claims, of course, only work if you really adhere to that privilege. If you waive privilege by, say, blabbing to the press about those communications, you don’t get it back.
When First AUSA Jason Yonan submitted a filing earlier on Thursday, explaining that when Diane MacArthur told exonerees there were no discussions after the September 27 meeting at which a video was shown, she was relying on what Yonan told her, he still made the point that such communications — including MacArthur’s representations about what the Front Office said, made back in July — are privileged.
More specifically, as reflected in Exhibit A to former Defendants’ Reply (R. 255-1), on July 15 and July 27, 2026, counsel for former Defendants emailed an AUSA on this matter to identify communications (which the government maintains are privileged) between the United States Attorney’s Office and U.S. Department of Justice in Washington D.C. (“Main Justice”) related to this case. Because the AUSA was not involved in any such communications with Main Justice and had no personal knowledge of such communications, the AUSA presented counsel’s requests to the Front Office of the U.S. Attorney’s Office.
But after Sheri Mecklenburg’s resignation letter got published in multiple places and DOJ attempted to rebut her claim that Boutros had ordered her to pursue the felony, they appear to have made no such caveat.
That prompted a swift denial Friday from the Justice Department.
“The claim that AUSA Mecklenburg proposed a misdemeanor and was told instead to file a felony charge is false,” it said in a statement. “Mecklenburg’s recommendation in writing to the supervisory chain of the U.S. Attorney’s Office included the [conspiracy] felony as the strongest charge.”
They just blabbed to the press about (what they claim, but the claim is suspect) Mecklenburg’s written communications with Boutros say. About charging decisions! Dumbasses!
Boutros has just made it clear that his invocation of privilege only holds so long as his attempt to scapegoat others stands. When his own involvement becomes an issue, he’ll blab to the press about those purportedly sacrosanct deliberations about charging decisions.
He keeps using that word. I do not think it means what he think it means.
[Why yes, I *do* have The Princess Bride on my mind. Can you blame me?]
He should read up on John Mitchell and his buddies.
Live it up ETw!!!
Footnote 15 both waives privilege outright and waives it by using privilege to shield potential fraud on the court and perjury. “No means no” not meaning anything under Trump is sadly on level, but any 2L will remind you that the right assertion was “No non-privileged conversations” instead.
They could screw up a one car funeral procession if you spotted them the hearse.