A federal judge earlier this week agreed to look at unredacted grand jury transcripts in the “Broadview Six” case against Operation Midway Blitz protesters to “see if there is anything suspicious” about portions that had been mysteriously removed by the U.S. attorney’s office.
What U.S. District Judge April Perry found was beyond suspicious, according to those who heard her remarks in a closed-door hearing. It was shocking.
Before two separate grand juries last year, a federal prosecutor repeatedly stepped over the line, including “vouching” about the strength of the evidence, dismissing panel members who disagreed with the prosecution’s theory of the case, and having “ex-parte” communications with other grand jurors outside the proceedings, according to a series of bombshell revelations in court Thursday.
The rapid developments led U.S. Attorney Andrew Boutros to announce in court that he was dismissing all remaining misdemeanor counts in the case, which had been scheduled to go to trial on Tuesday.
Boutros also issued a remarkable and lengthy apology to the court, saying he had only found out about the problems in the grand jury last month and made a quick decision to drop the felony conspiracy charge.
“I will tell your honor that as upset as you are, and have been, I too had not seen conduct like that, and it upset me which is why we did dismiss that indictment,” Boutros said after moving to dismiss the misdemeanor counts.
Boutros also defended the current prosecution team, saying they believed the redactions initially made in the grand jury materials were complying with Perry’s order to turn over only portions dealing with the instruction on the law.
“No one acted with the intent to mislead your honor, and I think that they were following your order to give the law,” Boutros said.
After his apology, however, Boutros defended the case, saying what occurred in Broadview on Sept. 26 was “unacceptable in a civilized society” and that it was “for the grace of God” that that agent drove his vehicle slowly through the crowd and didn’t jump out and shoot anybody.
That clearly irked Perry, who said to Boutros flatly: “You are significantly undercutting your mea culpa here by standing behind the charges and continuing to vilify these particular defendants.”
Perry said she intends to hold a hearing on possible sanctions for the U.S. attorney’s office’s actions in the case, but did not set a timeline. The immediate concern, Perry said, was for the defendants.
“Hopefully they never have to come back to this building again, unless it is voluntary,” the judge said.
At the suggestion of the defense, Boutros agreed to remove from the U.S. attorney’s office website the press release put out on the day the case was brought, or otherwise add a banner noting that the charges had been dismissed.
While defense attorneys applauded Boutros for dropping the case, they accused the U.S. attorney’s office after the hearing of embarking on a monthslong coverup of what had happened in the grand jury, first dismissing the conspiracy count and later turning over only partial portions of the transcripts to the judge.
Attorney Christopher Parente, a former federal prosecutor who represents Oak Park Trustee Brian Straw, said he had “never even heard of something as bad as what took place in this grand jury session,” but that in some ways the “cover up” was worse.
“We’re talking about continued misconduct by the U.S. attorney’s office, which continued the prosecution that cost these individuals significant attorney’s fees, significant stress… for what?” Parente told reporters in the lobby of the Dirksen U.S. Courthouse. “I’m sick to my stomach as a former prosecuor. I’m sick to my stomach as a U.S. citizen who has to live in this country with this Department of Justice that is acting this recklessly.”
After the hearing, defendant Katherine “Kat” Abughazaleh, a former Democratic congressional candidate, hugged her counsel and collegues with tears in her eyes. She told reporters that the way her case played out illustrated why they were out in Broadview fighting back in the first place.
“This administration does things like this because it thinks it can silence us, but it’s not going to work,” Abughazaleh said. “We fought back and we won.”
Perry had whistled prosecutors into court to explain redactions made in the transcripts at the heart of felony conspiracy charges that have since been dismissed.
She had given prosecutors until 1 p.m. Thursday to return to her courtroom to give their position on what portions of the material should remain under seal going forward. Portions of the grand jury transcript where one of the grand jurors expressed “personal opinions” about the case will remain sealed for privacy reasons, the judge told lawyers on the case.
Of all the criminal cases to come out of Operation Midway Blitz, the charges against the “Broadview Six” protesters have arguably been the most controversial.
In calling for the U.S. attorney’s office to explain the redactions, Perry had called for any prosecutor “who participated in the decision to redact portions of the grand jury transcripts, whether on the trial team or at the supervisory level” to appear before her Thursday.
The proceedings were conducted in a courtroom sealed to the public “due to the anticipated discussion of grand jury materials and in an effort to avoid tainting the jury venire” in the upcoming criminal trial, which is slated to begin with jury selection Tuesday, according to Perry’s order.
In an overnight filing, the Tribune, Sun-Times, WBEZ and Better Government Association asked the judge to reconsider the sealing of her courtroom, arguing there has been a pattern of accusations against the Department of Justice under the administration of President Donald Trump of abusing the grand jury process, particularly in cases related to protesters.
Perry denied that motion and the media was not allowed to remain in the room for the hearing.
The development was surely worrisome for the U.S. attorney’s office, which has already come under fire for a slew of criminal cases brought during Midway Blitz that have fallen apart amid scrutiny by judges and juries.
Originally, the defense had asked the judge to look at only portions of the transcripts that showed how the grand jury was instructed on the law. After those versions were filed under seal, Perry later ordered prosecutors to bring the full, unredacted transcripts to her chambers at the next hearing.
At that April 29 hearing, however, Assistant U.S. Attorney William Hogan announced his office was dismissing the original felony conspiracy charge and proceeding on misdemeanors, rendering the grand jury transcripts “moot.”
Perry agreed, and after some discussion about next steps, Hogan asked her: “Do you still want us furnish the unredacted versions or should we wait?”
“Let’s wait,” Perry responded.
“Thank you,” Hogan said.
But Parente continued to press the issue, suggesting the U.S. attorney’s office dismissed the indictment because of some error before the grand jury that they were now trying to avoid disclosing.
After Parente again raised it at a pretrial hearing on Monday, Perry on Monday agreed to take a look at the transcripts to “see if there is anything suspicious” about the 30 or so lines that had been redacted, though she guessed at the time that most of the redactions had to do with “IT issues.”
The “Broadview Six” case has been beset by controversy from the moment the indictment was brought in October as the defense has alleged the case was brought amid pressure from the administration of President Donald Trump and was nothing more than an attempt to silence protesters of the president’s draconian immigration policies.
The back-and-forth escalated last month when Parente raised the possibility that the U.S. attorney’s office had misinstructed the grand jury on the law or had “improper or prejudicial” interactions with the panel, then dismissed the conspiracy count to avoid having to turn over unredacted transcripts of the proceedings.
In response, prosecutors blasted Parente for “histrionically” speculating about perceived misconduct in what was the normal practice in Chicago’s federal court. “There was nothing remotely unusual, let alone nefarious, about that state of affairs,” prosecutors said.
Charged in the case are Abughazaleh, a former Democratic congressional candidate; Andre Martin, who was Abughazaleh’s campaign manager; 45th Ward Democratic Committeeman Michael Rabbitt; and Straw, who is also a Democrat.
Earlier this year, Perry granted a request from the U.S. attorney’s office to dismiss charges against Catherine Sharp, a onetime candidate for the Cook County Board, and Joselyn Walsh, a part-time garden store worker and singer.
Prosecutors alleged the defendants were part of a group that surrounded an ICE vehicle outside the Broadview facility during a Sept. 26 protest and “banged aggressively” on the vehicle’s side and back windows, hood and doors before they “crowded together in the front and side of the Government Vehicle and pushed against the vehicle to hinder and impede its movement.”
They further alleged that the protesters scratched the vehicle’s body, broke a side mirror and a rear windshield wiper and etched the word “PIG” into the paint — though no one listed in the indictment is accused of specifically causing that damage.
The misdemeanor counts of impeding a federal officer that were dismissed Thursday each were punishable by up to one year behind bars.
jmeisner@chicagotribune.com