Court filing
Transcript of Proceedings in case as to Cortney Merritts — USA v. Merritts (Dkt. 61, D.D.C.)
Filed January 9, 2026 in USA v. Merritts; one of 82 filings from this case.
Record facts
| Court | U.S. District Court for the District of Columbia |
|---|---|
| Filed | 2026-01-09 |
U.S. District Court for the District of Columbia · No. 1:25-cr-00076-JMC · Doc. 61 · 2026-01-09 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Criminal Action
Plaintiff,
No. 1:25-cr-00076-JMC-1
vs.
January 7, 2026
CORTNEY MERRITTS,
Defendant.
_______________________________________________________________
TRANSCRIPT OF THE PROCEEDINGS
VIA ZOOM
BEFORE THE HONORABLE JIA M. COBB
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Government:
Brian P. Kelly, Esq.
Joshua Seth Rothstein
DOJ-USAO
601 D Street NW
Washington, DC 20530
Emily A. Miller, Esq.
U.S. ATTORNEY'S OFFICE
OF THE DISTRICT OF COLUMBIA
Fraud & Public Corruption
555 4th Street, NW
Suite 5836
Washington, DC 20530
For the Defendant:
Justin K. Gelfand, Esq.
MARGULIS GELFAND, LLC
7700 Bonhomme Ave.
Suite 750
Saint Louis, MO 63105
Court Reporter: Stacy Johns, RPR, RCR
Official Court Reporter
Proceedings recorded by mechanical stenography,
transcript produced by computer-aided transcription
Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 1 of 122
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(Proceeding begin at 1:05 p.m.)
DEPUTY CLERK: This Honorable Court is now in session.
The Honorable Judge, Jia Cobb presiding.
Good afternoon, Your Honor. We are on the record in
Criminal Case 25-76, United States of America versus Cortney
Merritts.
Starting with government counsel, please state your
appearance for the record.
MS. MILLER: Good afternoon, Your Honor. Emily Miller
for the United States. And I'm here with AUSAs Brian Kelly and
Joshua Rothstein.
THE COURT: Good afternoon.
MR. GELFAND: Good afternoon, Your Honor. Justin
Gelfand for Mr. Merritts, who is physically present with me in
my conference room but not on camera, Your Honor, unless you'd
like him to be.
THE COURT: No, he doesn't have to be on camera. Good
afternoon, everyone.
We are here because there are a number of motions
pending including a motion to continue trial. But I'll deal
with and resolve the balance of the motions first because that
might moot the motion to continue.
Let's start with the government's motion for
disclosure of tax returns. So, it's my understanding the
government's no longer seeking for that order to be nunc pro
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 2 of 122
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tunc. There was also an objection from the defense related to
whether these were certified records, which is an issue
separate, I think, from the question about whether the motion
for disclosure is appropriate.
So, Mr. Gelfand, can I just clarify, do you have a
legal objection to the motion for disclosure in substance?
Again, the nunc pro tunc issue has been withdrawn. So if I
grant it, it won't be nunc pro tunc; I'll just grant it.
And as I indicated, I think if there's a question
about whether these documents are properly authenticated or
certified for use at trial, that's a separate issue that the
government will have to lay a foundation before seeking to
admit them.
But do you have a legal objection to the government's
use of these documents in this litigation?
MR. GELFAND: We do, Your Honor. And then we have an
alternative potion in the event the Court is not inclined to go
with us on our first position.
Our first position is that the government -- under an
6103(i) order, the government has to establish that there's
actually a reason that it's relevant, in essence, to introduce
them at trial. We do not believe that producing IRS records of
this nature at trial is necessary. The government has gone all
over the place with the extent of IRS's involvement in this
case.
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But we also believe, Your Honor, that in the event
that the Court believes that the tax returns are relevant and
the tax information is relevant and should be seen by the jury,
we have an objection to any further disclosure and would ask
the Court to take precautions so that only the jury basically
sees these documents.
When I was a federal tax prosecutor, Your Honor, we
often did that in identity theft cases where tax returns,
themselves, would be admissible for purposes of the jury's
consideration but would not become part of anything other than
a sealed court record and would not be otherwise available to
the general public.
So those are our two positions in a nutshell, Your
Honor.
THE COURT: Okay. I'm prepared to rule on the motion,
which I will grant. This is in reference to exhibits D1 and
D2, I believe. The request is to disclose the tax return
information contained in D2 at trial and the lack of records
information contained in exhibits D1 and D2 at trial.
I do think that the government has sufficiently
demonstrated that these documents are probative to the question
of whether or not the defendant is guilty of the charged
offense. And I believe that -- let me just confirm, the reason
this is relevant is because it reflects certain
inconsistencies -- allegedly -- in Mr. Merritts'
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 4 of 122
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representations about money that the business purportedly
generated that are inconsistent with information on the
applications. And this is a question about whether -- a case
about whether or not the money obtained pursuant to the
applications at issue is fraudulent. Is that right in broad
strokes, Ms. Miller?
MS. MILLER: In broad strokes, that's correct, Your
Honor.
THE COURT: Okay. So for those reasons, I do think
it's relevant. And I think I dealt with this issue when I
essentially granted the government's request. They had said it
was a 404(b) issue. I thought this kind of tax information was
evidence of the charged offenses and not other crimes, but I
think they just demonstrated this is relevant.
MS. MILLER: Your Honor.
THE COURT: Yes.
MS. MILLER: Sorry. I just wanted to clarify to
ensure that the Court understands that in addition to exhibits
D1 and D2, which were attached to the motion initially because
we had attached them to our opposition to the defendant's
motion to prohibit attribution of the business's records to the
defendant, we only included those two exhibits. But I do want
to just make clear as we established in our reply that we'll
also be seeking to put in as proof of lack of records the
account transcripts which we obtained certified copies of that
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show no records of filing.
THE COURT: Okay. Yes. So that is included in the
order.
So the motion is granted. I think this is ECF 37.
What's the government's position on the defense
request for safeguards that would limit the ability of the
public to access this information? Do you have any position on
what the defense has suggested?
MS. MILLER: Your Honor, I believe that Rule 49.1 with
its redaction requirements is sufficient at this juncture,
particularly given that these tax records reveal nothing other
than that the defendant claimed one dollar in income in one
record and the rest are lack of records. So they're not
revealing of anything extremely personal. They're evidence in
the record like in other evidence in the record. And I don't
see why if requested by the public, they wouldn't just be
provided as redacted consistent with Rule 49.1.
THE COURT: What's the defense's position? And maybe
clarify, first, your position. And then if you disagree, what
exactly are you asking that the Court do with respect to these
documents?
MR. GELFAND: Yes, Your Honor. We do disagree. Tax
records, especially tax records initially obtained via an I
order are particularly confidential. They should be
confidential. The redactions deal with personal identifiers
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 6 of 122
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like Social Security numbers. They don't deal with the
underlying nature of the documents.
Our request is fairly simple, Your Honor, which is
that obviously the Court can see and receive copies of the
exhibits, if they're otherwise admissible. The jury can
consider them the way they would any other evidence in the case
but they're otherwise under seal and not available to the
general public. And I think the Court is well within its
discretion to do that.
That happens all the time in identity theft cases. It
happens with tax records. It happens frequently with health
records. And it's a fairly simple precaution that doesn't
prejudice the trial in any way. It just impacts essentially
what people that don't have a reason to see them get access to.
THE COURT: I don't think I have an issue with
ordering that the documents, to the extent that they're on the
public docket or need to be filed on the public docket, for
whatever reason remain under seal.
I guess my question is how does that impact the
testimony about these documents? You're not suggesting that I
need to clear the courtroom any time a witness is asked about
the documents?
MR. GELFAND: Your Honor, we are not. I think that
would --
THE COURT: Okay.
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MR. GELFAND: -- interfere with the presentation of
evidence in the trial.
THE COURT: You just want the documents under seal if
they're on the public docket, that's all you're asking for?
MR. GELFAND: Yes, Your Honor. And if they're
admitted into evidence, the media, candidly, shouldn't
necessarily have access to them.
THE COURT: Okay. I understand the government's
position. I do think that these are sensitive tax records.
I've clarified because I do think it would be -- we would have
to talk if you were suggesting that when this comes up as a
subject of testimony, that we treat the testimony in a manner
that's confidential. So with the understanding that the
information or lack of information contained in the documents
might be part of the public record, depending on how that
shakes out, it might impact any future ruling on the continued
treatment of these documents.
But for our purposes now, I'm happy to order that
these documents remain under seal. If introduced as exhibits
at trial, that they be limited to viewing by the parties,
obviously, the witness who is testifying about the documents,
and, of course, the jury.
MS. MILLER: And so, Your Honor -- sorry.
THE COURT: Yes.
MS. MILLER: Just to clarify, then, on your initial
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 8 of 122
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ruling on the motion which pertains to the enclosure of those
exhibits with our opposition to their motion for corporate
attribution, I would take the Court's ruling to mean that those
exhibits as well should remain under seal.
THE COURT: Yes, I'll continue to keep those exhibits
under seal.
Again, this is without prejudice for any party to seek
further relief from that. I think this is the easiest way to
deal with it now. It could be that there's a reason that any
party presents that that's not appropriate going forward. But
for now, I think it's the easiest way to deal with it.
Okay. So the government's motion for disclosure is
granted.
Then there's the motion to disqualify. I'll hear from
the defense. I read the party's pleadings. I don't need you
to repeat what's in the pleadings. I guess I would just ask
you, I understand that you've filed the civil action against
the United States. The individual U.S. Attorneys, AUSAs, that
are prosecuting this case are not named personally in that
suit, and I just want to confirm that you agree that that civil
case is not going to be the subject of any testimony at trial
such that Ms. Miller or Mr. Kelly or anyone on their team are
witnesses.
It would be different if you're saying now that the
prosecuting attorneys are witnesses in the case, but you agree
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 9 of 122
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that that's not the case, correct?
MR. GELFAND: We do, Your Honor.
THE COURT: In that case, I just wanted to clarify. I
do understand the defendant's position, but I'm prepared to
deny the motion to disqualify at ECF 50. That motion sought to
disqualify the U.S. Attorney's Office for the District of
Columbia, or alternatively the AUSAs whose conduct is at issue
in the civil lawsuit that I referenced.
I don't find on this record that there's an actual or
apparent conflict of interest in the case. The disclosure at
issue was done in the AUSA's official capacity. No AUSA is
personally named in the pending civil suit which is against the
United States. My understanding from the government's
representations is that these AUSAs would not be participating
in prosecuting that action. And I don't see how the outcome of
this case has any impact on liability in the civil suit. Quite
frankly, even if Mr. Merritts was convicted in this case, I
don't see how that impacts the civil suit which has to do with
whether or not there was an unlawful disclosure. That doesn't
turn on whether Mr. Merritts has a conviction or not, in my
view.
So I don't find there's any improper personal interest
in the outcome of this criminal case. I think that the
assigned government attorneys have been zealously litigating
this case and will continue to do so. I don't see any
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 10 of 122
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situation or even an appearance of a situation that their
motives or manner of prosecuting this case will change just
because there's a suit against the United States in which
they're not named.
I also do not find, at least on this record before me,
I'm not talking about the merits of the other case, but there's
nothing in this record to suggest that the disclosure was
deliberate or constituted any misconduct necessitating
disqualification. So I don't find it to be appropriate to do
so. So I will deny ECF 50.
MR. GELFAND: Your Honor, I appreciate and respect the
Court's ruling. Can I make a further record, assuming we are
on the record here.
THE COURT: Yes.
MR. GELFAND: So to give this Court context, I
appreciate that the government sees the 6103 violation both as
it relates to this prosecution and the civil case very
differently than we do.
THE COURT: Okay.
MR. GELFAND: As a practical matter, just to give the
Court a little bit on context, I began my career as a federal
prosecutor with the Department of Justice's tax division
prosecuting federal criminal tax cases. And I've been on the
defense side, so to speak, in private practice since then over
the last 11 or 12 years, whatever it's been.
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What was particularly drilled in me as a federal
prosecutor was that you don't disclose confidential tax records
the way that it was. But the reason that I'm saying that, Your
Honor, is because while it can expose the government to civil
liability, because the government is the only one that can be
named as a defendant in a 6103 violation case, civilly and not
statutorily, it can expose prosecutors individually or other
government employees, federal agents, whoever the person that
violates 6103 is, to in certain circumstances potential
criminal liability and almost inevitable OPR investigations
that can be career impacting.
To be blunt, Your Honor, I have represented federal
employees, one in particular alleged to have violated 6103. We
represented IRS whistleblower Gary Shapley in a case brought by
Hunter Biden. I obviously don't want to litigate that case
before this Court, but the allegation there was that Gary
Shapley violated Mr. Biden's Section 6103 rights.
And the big issue there, Your Honor, bluntly speaking,
was how much that can impact the agent's career even if the
case -- which it was -- was against the United States, not
against -- in that case, the IRS, but not against the
individual.
And my point in saying that is I do believe that
creates not only a conflict but an appearance of a conflict.
There's no dispute the tax returns in this case were disclosed.
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I'm not trying to pre litigate the 6103 case, but
based on some of the statements the Court just made, I do
believe that there's evidence of misconduct. There's a letter
from the IRS saying don't disclose these, in writing, before
they were disclosed.
THE COURT: I understand that, but what is your
proffer as to anything suggesting that it was willful as
opposed to an inadvertent error?
And again, it sounds like for civil liability,
willfulness might not be a factor. For criminal liability, it
certainly would be. Given the record before me that it was the
government that ultimately notified the clerk's office and
notified you that this had been done and took steps to rectify
it, what is your -- what can I point to on this record other
than the fact that it was done to suggest that this was done
purposefully or willfully?
MR. GELFAND: That it was done -- the disclosure
letter from the IRS disclosure officer that preceded the 6103
violation that occurred. In order --
THE COURT: You can know you're not supposed to do
something and do it inadvertently or you can do it willfully.
So there's not a question about whether the disclosure -- there
may be a question about whether the disclosure violates -- I'm
not talking about the civil case. I'm just saying that you're
suggesting some threat of criminal liability that would impact
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 13 of 122
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or change the way that these prosecutors litigate the case or
suggest some sort of retaliation.
I'm just asking, other than the fact that was it was
done, what's on this record to show that it was done
purposefully against Mr. Merritts to expose his information to
the public?
MR. GELFAND: Two things, Your Honor. Number one, the
quote/unquote, inadvertence dealt with whether it was redacted,
not whether it was published in the first place. Because it
was clearly intentionally published in the first place. It was
admitted as -- it was attached as exhibits in a public
pleading, and there was no motion to seal.
And anything that happened after that, bluntly
speaking, there was email correspondence that we believed it
was a 6103 violation. But again, we don't need to pre litigate
that.
In other words, efforts after the fact to try to kind
of clean up the record and the problem has no bearing on the
conduct in the first place. And I think that, coupled with the
fact that when the IRS puts you on notice saying don't do this
and you do it anyway. In a white collar criminal prosecution,
I mean, if they had a letter of that nature against Mr.
Merritt's, that would be government exhibit A for willfulness.
In other words, the IRS told you not to do something, but you
did it anyway. And I think that that's very circumstantial and
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I think that does impact how the public perceives this
prosecution and it does impact -- you know, to be blunt, if the
prosecutors who we believe violated 6103 in this case are found
accountable for that, I think that can have very real career
implications and consequences. And whether they appreciate
that or not is a different question. Whether that ultimately
happens is a different question. But it can happen and that's
where the conflict analysis comes in.
And our position, candidly, is that Mr. Merritts
should be prosecuted, if at all, by prosecutors that are
actually disinterested and don't have any -- there's no
argument that they can be impacted by what happens in this case
based on what happens civilly --
THE COURT: Right. How does the jury's verdict impact
the prosecutors in this case in any way other than how it
impacts them in any of their other cases? I mean, they've been
prosecuting this case before this recently occurred, before the
civil suit happened. What is the appearance of impropriety
issue that you're concerned about?
MR. GELFAND: Three things, Your Honor. First,
Cortney Merritts inevitably will be a likely witness, at least
a possible witness in the civil case. And as a practical
matter, his credibility is therefore particularly relevant and
will be impacted by what happens in the criminal case.
Number two, there can be collateral consequences for
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the prosecutors in this case based on what happens. And I
think ultimately sometimes the net result of what happens in a
criminal case can be relevant to collateral consequences later.
I think that most importantly, Your Honor -- and
again, I'm not trying to pre litigate it but I am trying to, as
best as I can, answer the Court's question.
In the 6103 civil case there's a liability question
and then there's a punitive damages question. And I think when
it comes to the issue of damages, then essentially one of the
things that the government will no doubt ask the jury to
consider and ask the Court to consider, unless they waive it
right here and right now, is Cortney Merritts' situation: Was
he acquitted, is he a convicted felon, is --
THE COURT: That's what I'm not understanding. I
don't understand why that's relevant to punitive damages, which
is -- first of all, I don't know if you can even -- these
prosecutors, it's not coming out of their pocket, whatever the
damages are. I will take that you might understand this
particular provision better than I do. I didn't know that
there were punitive damages available against the United States
but maybe under this statute there are.
I will learn this statute very well, I assume, because
I have this case assigned to me, the related criminal case. So
I will take it at your word that there's some punitive damages
available. I thought that the statute capped the damages
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recoverable per disclosure. But again, I could be wrong about
that. I guess I'm not seeing how Mr. Merritts -- quite frankly
is he a witness? I guess in some sense. But what happened
happened, and the question is whether that violated the law or
not.
So I appreciate your arguments. I am not seeing a
situation here where these attorneys have the appearance of or
actually have any personal stake at all in how this case is
resolved because of this suit. I understand that there's been
a subsequent civil suit. It can't be the case that if a
criminal -- and it happens, a criminal defendant might file a
suit against someone related to something that happens in the
criminal case, a civil suit. I don't think it's -- it's not an
automatic situation that calls for disqualification.
Otherwise, that could be gamed. You can imagine a situation in
which people file suits against prosecutors to force their
disqualification.
I think I'm looking at the cases that the parties have
cited and considering very carefully whether or not there's any
actual or apparent conflict of interest in this case, and I'm
failing to see why there would be a conflict. So I appreciate
your argument, but I am not seeing any reason to disqualify the
government in the case.
Anything else on than point, Mr. Gelfand?
I'll let you speak too --
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 17 of 122
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MR. GELFAND: I appreciate where the Court is coming
from. I'm not trying to beat a dead horse.
THE COURT: I want to allow you to make your record
fully. If there's anything else you want to make sure that I
understand, I'm happy to have you complete your argument and
then I'll hear from Ms. Miller.
MR. GELFAND: Thank you, Your Honor.
Look, we can all imagine a scenario where some
frustrated criminal defendant files some sort of specious
lawsuit against the United States or against prosecutors and
then says, look, they can't prosecute me. And that is not the
scenario that happened here. Mr. Merritts was not the one who
violated Section 6103. He's not the one, i.e., congress, who
established a serious private cause of action.
I think that the place where I respectfully would push
back on the Court's way of articulating the conflict and the
appearance of conflict is that even though the prosecutors are
not parties to the Section 6103 case because statutorily they
cannot be parties. The statute literally says that it's
brought against the United States. The collateral consequences
that can flow from an adverse judgment against the United
States to the prosecutors individually are very real and not
speculative. And I think the public -- this is also a
reasonable -- especially if the appearance of impropriety
standpoint, it's also a reasonable person standard. I think
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 18 of 122
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the public would reasonably assume that if hypothetically --
and I'm not saying the Court should reach this conclusion now,
but if the United States is hit with a very large judgment for
a 6103 violation involving AUSA X or IRS agent X, then that
person would suffer career consequences as a result of that
adverse action. And I think any suggestion to the contrary is
really just not accurate.
I mean bluntly speaking, and I don't know how much
more blunt I can be, Gary Shapley suffered adverse career
consequences just because of the allegation that he violated
Section 6103 without even a finding. And that's a
similarly-situated person to the AUSAs who allegedly committed
the conduct in this case. Because it's a government actor who
is not a party to the lawsuit but who is suffering possible
collateral consequences as a result of their conduct.
In other words, I guess what I'm challenging, Your
Honor, respectfully, and what I'm pushing back, is that whether
or not there are parties to the lawsuit shouldn't be the
determinative factor.
THE COURT: I agree. I agree.
MR. GELFAND: It's whose conduct is ultimately at
issue in the lawsuit and it just -- I was candidly surprised
that this AUSA whose conduct is -- and I mean this with no
personal disrespect to Ms. Miller, but whose conduct is at
issue in the 6103 case was the one who signed the
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disqualification response.
I think this is the kind of thing where Mr. Merritts
has the right to be prosecuted by prosecutors, if there's going
to be a prosecution, who truly are not only disinterested but
who appear to the general public to be disinterested; not who
have possible personal consequences, collateral or direct, to
the fact that there are a pending meritorious civil lawsuit.
This isn't some sue prosecutors because they're prosecuting me.
THE COURT: I agree. I didn't mean to suggest that
the fact that they are not parties is dispositive. I just do
think it's -- obviously if -- I was making the point that
they're neither witnesses to this case or parties to the other
case is kind of a preliminary observation as to issues where a
conflict might be clearly apparent. But I think where I'm
struggling -- at the moment I've denied your motion. I don't
think I'm going to be revisiting that. I'm happy to go back
and look at the case law in light of your arguments and if I
change my position, issue an order to that effect. I will
consider your specific arguments in light of the cases.
I guess where I'm struggling is the suggestion that
because of these other hypothetical, somewhat speculative
consequences that may or may not happen, I'm trying to
understand how that impacts how they might prosecute this case
or their personal interests in this case.
I mean, they have an interest in securing a conviction
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regardless, right? So if you can give me an example of -- I'm
not seeing it. So maybe you can just explain, like because
there is a pending case involving disclosure of the tax
records, they have a personal interest in this case because you
say because they want to discredit Mr. Merritts and secure a
conviction. I don't know how that whether or not he has a
conviction is relevant to the issue of whether or not there was
a disclosure.
MR. GELFAND: Again, we hope that the jury finds
otherwise. But it could impact sentencing advocacy, could
impact -- I understand the government's general obligation is
to prosecute and seek a conviction, but it is to do so by
disinterested prosecutors; not to do so at all respects. I
think that that's where the judgment can be clouded, or at
least it can be perceived to be clouded, because they are now
making decisions on behalf of the United States at every step
of this litigation that will impact Mr. Merritts but also could
have an impact on them individually. And that's where the
rubber hits the road, Your Honor. That's why this is different
than it was six weeks ago.
THE COURT: Ms. Miller, you wanted to say something.
MS. MILLER: Your Honor, I appreciate that the Court
hasn't changed its ruling so I'm not going to belabor a lot of
these ridiculous accusations by the defense. But I do want to
correct some factual misrepresentations that Mr. Gelfand made,
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and I do want to respond to some points of argument that he
made, just for the record.
THE COURT: Okay.
MS. MILLER: The first thing, Your Honor, is in
response to the idea that the disclosure itself was
intentional, I believe that the standard is not whether the
disclosure was intentional as in did I accidentally file a
motion on the docket, but whether it was intentional despite
the fact that I understood that I should not have done so
pursuant to the applicable law. I don't think there's been any
evidence of that on this record. So that was really not a
correct argument.
The second incorrect fact, Your Honor, is that the
email correspondence in which Mr. Gelfand notified us that he
believed that the conduct at issue was a violation of Rule 6103
occurred after the government noticed its mistake and asked the
clerk's office to seal the documents. So it wasn't done, could
not have been done, in response to any threat by Mr. Gelfand.
It admittedly did not occur until 8:00 the next morning, but
the government can't help that the clerk's office closes. We
did our best to reach out as early as we recognized the
potential violation.
In terms of the fact that there was a cover letter
from the IRS saying don't disclose except in -- as permitted by
Rule 6103, as I already pointed out in our pleadings is
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certainly not dispositive, as I noted there. The Court's
orders granting the ex parte relief we sought to get this
information indicated that the information could be used for
preparation in a pretrial proceeding. I think it's entirely
understandable that that was interpreted by the government to
mean it could be used in a pretrial proceeding. And further,
Your Honor, within five days I double checked myself, went back
to the statute and had it sealed.
Moreover, Your Honor, and I just want to note, this
was attached to literally an opposition to the defendant's
motion to prohibit attribution of corporate records to the
defendant. I'm hard pressed to think of a more boring motion
to attach something to should someone be seeking to
intentionally disclose it for the world to view.
In terms of Mr. Merritts being called as a witness in
his civil case, again, I just don't understand, as the Court
pointed out, how his credibility being impacted by the criminal
case has anything to do with collateral consequences for the
prosecutors. That whole argument just made no sense at all,
Your Honor.
With respect to the idea that you can get punitive
damages under Rule 6103, if the statute, at least on its face,
says you're entitle to them for willful conduct -- now I
understand Mr. Gelfand says that includes gross negligence.
Maybe it does. I don't know. It doesn't include for sure, I
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don't think he's argued that it includes regular negligence,
which is the most that this record could be held to have
established.
In terms of his allegation about, oh, well, this is
different because Congress created a private cause of action.
Yeah, against the United States. Not against the U.S.
Attorney's Office. Not against the prosecutors in this case.
So that's totally irrelevant.
In terms of the career consequences that I could face
because of the constitutional violation, that's no different,
Your Honor, than the circumstances that were faced by the
prosecutors in Heldt, the applicable D.C. Circuit case here who
actually were sued in their individual capacity for a bad faith
constitutional violation of the defendant's Fourth Amendment
rights in connection with their application for a search
warrant. And they were not held to have been conflicted, and
there was no finding that there was an appearance of
impropriety there. So that argument under directly applicable
precedent does not hold water.
In terms of the advocacy of which Mr. Gelfand is
concerned, he keeps stating that the defendant is entitled to
disinterested prosecutors. But I don't think he's citing that
standard correctly. He is entitle to a wholly disinterested
judge. There's no doubt about that. But in terms of the
prosecutors, as we've pointed out, we have a very much direct
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obligation to our client to be zealous advocates. And as the
Supreme Court has recognized, it is indeed expected that we
will be zealous advocates.
What Mr. Gelfand has not established based on any fact
in this record is that I or any other prosecutor would engage
in improper tactics to bring about a conviction in this case.
That is the kind of disinterest or interest that a
disqualification motion should be directed toward. And there's
no evidence of that here.
So I think, Your Honor, for all those reasons -- I
just wanted to put all of that on the record. I know the Court
has already ruled in our favor, but I just didn't want to leave
these specious arguments unaddressed.
THE COURT: Okay. Again, because I was not familiar
with the damages available in a Section 6103 case, I've learned
today as Mr. Gelfand correctly represented that and as the
government agrees, that punitive damages are available. That's
not here or there to what I said earlier, but I did want to
correct myself.
Ms. Miller, I appreciate that. I still stand by my
ruling, although I will look at the cases again in light of
Mr. Gelfand's specific arguments. If I have a question about
my ruling or feeling less sure about it, I will certainly give
the parties an opportunity to make further arguments.
Otherwise, I'll confirm for the parties that my ruling has not
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changed.
Ms. Miller, just for the last point, I think what I
understand Mr. Gelfand's argument to be, and I think you
addressed this and I tend to agree, but just so we're all
clear, is that even though you or Mr. Kelly or someone on your
team is not a party in the civil case, your conduct is the
subject of the civil case and thus because your conduct is at
issue, because that might have an impact on career discipline
or other discipline that you might be motivated or that someone
on the outside looking in could think that you were motivated
to retaliate against Mr. Merritts in some way in this case, in
the litigation of this case, either out of anger that you blame
him for putting you in whatever position you may find yourself
in or because you think it gives the government a leg up in the
other case. That's what I understand Mr. Gelfand's argument to
be, so if you just want to make your point about that specific
argument and then we can move on.
MS. MILLER: Yes, Your Honor. Sorry, I was trying to
make that before. What I am saying is that my circumstances
are not in way distinguishable from the circumstances of the
prosecutors in Heldt who would have faced the same reputational
and potential professional discipline consequences if it were
found that they willfully violated the defendant's
constitutional rights in that case. So if them being actually
civilly viable and personally named as intentionally violating
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his constitutional rights didn't cause that concern for the
Court, then certainly the conduct or the allegations here
should not cause that concern for this Court.
THE COURT: Okay. Thank you. As I said, I've denied
the motion. I will just review the cases again. If I am
convinced by something Mr. Gelfand has said, I will let the
parties know. Otherwise, my ruling will stand.
Finally -- or not finally because we still have the
motion to continue, but next there's the motion to reconsider.
Before dealing with or making my ruling about the selective
prosecution issue -- actually, no, let's start there.
Let me make sure I understand, Mr. Gelfand. I read
your motion. I did not see anything in the motion to
reconsider that relates to the effect prong of the selective
prosecution analysis.
In other words, it appears that the arguments relate
to a purported discriminatory motive that the defense, as I
understand, is saying now is not speculative because of these
records. Am I correct? I didn't see anything in your papers
about the effect piece of my ruling that I had determined
earlier that I didn't see any suggestion, proffer, evidence,
anything that would convince me even that discovery was
appropriate that Mr. Merritts is being singled out for this
wire fraud prosecution.
Am I correct that this new information doesn't affect
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that part of the analysis?
MR. GELFAND: No, Your Honor, I would push back on
that premise because I think that at the point that he is
singled out precisely because he is both married to former
Congresswoman Cori Bush and congressional candidate, Cori Bush,
and because he is working on this candidate's campaign for
democratic congressional office, when that's the reason that he
is being prosecuted and/or investigated, that is being singled
out, Your Honor. So I think they go hand-in-hand.
What I understood the initial court ruling on until
we -- I believe this is just the tip of the iceberg, but I'll
wait for the opportunity to respond to that. But what I
understood the initial Court's question is all we had before
according to the Court -- and I'm not trying to relitigate
that, but all we had before was this seems unusual that they're
prosecuting such a low-level PPP loan fraud case in terms of
loss amounts and there was clearly a prosecutorial decision in
March of 2025 during the current presidential administration to
go forward on this case. And now we know -- and there are
still questions we don't know, Your Honor, which is why I think
discovery is critical. Now what we know is that he was
targeted by IRS-CI, which was involved in this investigation,
because they wanted to generate media attention based on the
fact that he's married to a sitting congresswoman and he's
working on a campaign for a sitting congresswoman. And that
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goes to both prongs.
I think what the elephant in the room is, Your Honor,
is I think if this Court were to conclude that our
interpretation of that evidence that's now in the record is
correct, in other words, that he was in fact targeted because
of who he was married to and who he was working for, I think
that clearly falls within D.C. Circuit precedent that says you
cannot single him out for that, and that at a minimum requires
further discovery. And candidly, perhaps on the record alone,
we would argue, warrants dismissal of the case.
I don't think that -- there are two prongs, so to
speak, but they go hand-in-hand based on the new discovery and
the new evidence. And I would like to be heard on a couple of
things related to that issue.
THE COURT: Sure. Go ahead.
MR. GELFAND: So the government's position if I
understand it is they're still clinging to this notion that
there's two investigations, even though objective evidence
reveals that there's one investigation.
But more importantly, they basically say there's no
target of the campaign funds investigation because they quibble
with our use of the word and their use of the word target
versus subject versus focus versus whatever synonym you want to
use.
The problem, Your Honor, is that they issued a grand
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jury subpoena to the House Sergeant at Arms for documents
related to a sitting member of Congress.
We know that IRS-CI, based on new records, was
actively investigating this case. Whether you call it two
investigations or one, in April of 2024, because DLA Piper
represents a processor of one of the loans in this
investigation and was emailing an IRS-CI agent in connection
with a grand jury subpoena. That ultimately leads to evidence
that's on the government's exhibit list in this case.
So they didn't decline participating in this
investigation 12 days later. They actually participated in a
reverse proffer with me in this case, this was before
Ms. Miller and Mr. Kelly were involved. IRS-CI was present
several months later in a reverse proffer meeting with us at
the U.S. Attorney's Office in D.C., us on Mr. Merritt's behalf.
And there's no reason they were there if IRS-CI had declined
being involved in this investigation. In fact, it would
actually be illegal under 6103 for them to be there,
ironically.
And so the fact that they're targeting Mr. Merritts
because of who he's married to and because of who he works for,
which are two separate prongs of inquiry, any one of which
violates the constitutional provisions governing selective
prosecution and selective investigation, we anticipate this is
just the tip of the iceberg with more discovery.
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I'll give the Court an example. IRS-CI special agents
are required to keep time records on their work on specific
investigations. At a minimum, a minimum, those should be
disclosed in camera to this Court, and, candidly, I think to
us, to establish that the IRS-CI agents, what they were doing
on this investigation, how much time they spent and the
timestamps of when they were working on it.
The government basically says look this PPP fraud
investigation arose out of the Naval Federal Credit Union
review of bank records. The problem for them is that the Navy
Federal Credit Union records weren't turned over to the
government until November of 2023. And in March of 2023,
they're asking IRS-CI to join in this PPP loan fraud
investigation. And that's based on the U.S. Attorney's letter
that we attached to our pleading in this case.
And so the bottom line is, there's a million critical
factual questions that go to the core legal issues that must be
resolved as a matter of law before this case goes to trial. So
I do think that we're entitled to discovery.
The government basically says, we want to interpret
the IRS-CI paperwork in a certain way. It was only one agent,
other people didn't write them. That's there's no evidentiary
support for any of that. He just was talking about general
deterrence. He wasn't talking about in general notoriety.
We've never heard the special agent under oath say that.
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There's no affidavit to that effect. There's no evidence to
any of this.
All the Court has in record evidence as we sit here
today is that one of the investigative agencies, IRS-CI, that
did actively participate in this investigation, no matter what
the government is saying otherwise, that the records are clear;
there's no reason they would be CCd on emails involving grand
jury subpoenas. There's no reason they would participate in
reverse proffers. This is an evidentiary record that should be
made in the presence of this Court with credibility
determinations that must be made. If nothing more -- and I
think it would resolve the issues in our favor, but if nothing
more, to establish a fully-developed record and meaningful fact
finding before this case proceeds to trial.
And I think the problem is under Rule 12, these
motions have to be raised before the jury is sworn, which of
course they are timely raised before the jury is sworn. But
implicitly based on the case law as I read it -- and I'm happy
to be corrected -- rulings and full factual evidentiary records
also have to be established before the jury is sworn. We want
the opportunity to put on evidence as it relates to the
selective prosecution motion based on the new evidence that we
have. There's still questions that remain unanswered. There's
under oath testimony that requires credibility determinations.
In particular, at least, at least, the IRS-CI agent
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who we say said the quiet part out loud. They actually said
we're targeting him because of who he's married to and who he's
working for. And that's a major problem constitutionally, but
it's even a more significant problem from a due process and
procedural due process standpoint if we don't have the
opportunity.
THE COURT: Can you direct me to where someone said
the reason we are pursuing this investigation is because of who
Mr. Merritts is married to?
I saw reference to factual statements that
Mr. Merritts is married to Congresswoman Cori Bush. I saw
reference that it looks like there was a form that asks if
there were any factors such as notoriety, political corruption,
et cetera. And it indicated that the case would generate media
attention.
Is that what you're reading to say that those
statements -- that's what you're pointing to for the argument
that the reason that they initiated the investigation is
because of those factors? You're not suggesting that someone
said I'm recommending that we pursue this investigation because
Mr. Merritts is married to Ms. Bush?
MR. GELFAND: I think in terms of the PPP fraud side
of it, I think that's absolutely what they're saying, Your
Honor. And I'll direct the Court's attention. The question
asked is: Describe the factors that make the investigation
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impactful.
And the answer is: Media attention since he is the
husband of a Congresswoman.
The very next question says --
THE COURT: I remember reading this document, but do
you have the ECF number just so I can pull up or locate the
specific exhibit?
MR. GELFAND: Yes. Hang on one second, Your Honor.
Let me pull it up.
THE COURT: I have it.
MR. GELFAND: Exhibit 3, Your Honor. Our Exhibit 3
under seal.
THE COURT: Here's the thing. This looks like a form
memo. You can tell me if you think this was generated
specifically only for Mr. Merritts as opposed to a IRS criminal
investigation form that looks like it has form boxes. It looks
like the question itself says describe the factors that make
the investigation impactful, parentheses, media attention,
notoriety of subject, effect on community, international nexus,
virtual currency, dark web, et cetera. And so the person
responded as to which of those. So it appears from this form,
unless you have a reason to think otherwise, that this is
something that is asked in its investigations and then it's up
to the person to identify whether any of those factors or
factors related to it are present in the case. Right?
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I just want to confirm, that's what you're referring
to when you say --
MR. GELFAND: Well, yes. To answer the first question
directly, that's what I'm referring to. I think there's a lot
more evidence that's critical that an evidentiary hearing the
would establish.
And again, I'm saying this as an officer of the court
anticipating this just based on my experience. I know I don't
know what I don't know.
I know the following occurred. The IRS has two ways,
unlike every other agency, including the FBI, of investigating
a target of a criminal tax-related investigation, any IRS
involvement. They can either open what's called an
administrative investigation or they can open or join a grand
jury investigation.
In this case we know that in March of 2023 they were
asked by the U.S. Attorney's Office by letter -- it's one of
the exhibits that we included in our motion -- to join an
ongoing grand jury investigation into four separate targets
that included former Congresswoman Bush, then Congresswoman
Bush and Mr. Merritts. And there were two other names we
redacted but we provided the Court the full names. And that
was just out of respect for the government. We don't really
care if those names get out.
As a practical matter, at that point the government,
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because this involved Cori Bush, went and tried to seek a long
time later in March -- I'm sorry, in May of 2024, according to
the government's timeline, that they had to basically elevate
this up, all the way up to the IRS-CI chief. And that's
obviously not common. That is uncommon. The chief doesn't
have to approve investigations of random targets that are
ongoing.
THE COURT: I'm sorry, that point is not obvious to
me. Where do I look to understand that?
MR. GELFAND: I'm telling you as an officer of the
court that that's how the IRS operates. And I've been a
prosecutor and on the defense side.
THE COURT: Got it. Okay.
MR. GELFAND: I believe we could establish that
through evidence, if the Court needs it.
THE COURT: Okay. Go ahead. I was just asking. I
wasn't that obvious to me.
MR. GELFAND: Fair enough. If I'm wrong, I'm wrong.
Let the evidence play out.
But as a practical matter, the IRS-CI agent at this
time is saying, look, one of the appeals to investigate this
case for IRS to get involved because bluntly -- again, I'm not
trying to criticize the Court's prior rulings, but IRS does not
investigate $22,000 cases.
The reason the IRS is saying we should get involved
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here is this will be impactful. In other words, it's worth our
resources. That's how I interpret it. But again, the author
is the one who needs to testify about this. The media
attention that it will generate because he's the husband of a
congressman (sic) and in the very next line, section four,
Roman Numeral IV, it acknowledges that Merritts is not a
sensitive subject under this Internal Revenue Manual, it's the
IRM provision, but that since receiving the PPP loan, Merritts
has worked for his wife's campaign.
So the IRS, the way we interpret this, the way we
anticipate the evidence would come in, is we should prosecute
him because this will be worth our resources, because it will
garner media attention because this guy is the husband of a
congresswoman and working on the congresswoman's campaign. And
if that, in fact, was even a motive for the investigation, much
less the motive for the investigation, that is per se
unconstitutional.
And what's particularly confusing, and I'll use that
word very intentionally, is that this is May 1st, 2024,
according to the government's proffer to the Court, or at least
representation. I'm not sure I actually saw that date on any
documents, but it may have been there. If this is on May 1st
of 2024, the government says look, IRS-CI declined being
involved in this investigation on May 1st of 2024, somewhere
around there, and therefore as a practical matter none of this
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really means anything.
Well, first of all -- and that he was just getting
supervisory approval to be involved in the first place.
First of all, 12 days earlier it's clear from the DLA
Piper email -- and this is just the tip of the iceberg. That's
why discovery is necessary -- that IRS-CI is actively
investigating this case because there is no other credible
reason a DLA Piper lawyer representing a grand jury witness
would email the FBI agents on this PPP loan fraud case and CC,
the IRS-CI agent before he's even investigating this case.
There's no credible explanation for that. It's not logical.
And so then the IRS-CI agent continues to actively
participate in this investigation because he's present with me
at a reverse proffer months later talking about this case,
interestingly enough threatening criminal tax charges when the
government now says they already declined criminal tax charges.
Meaning they couldn't bring criminal tax charges.
And so what I'm sitting here doing, Your Honor, and
I'll be completely candid with the Court, I'm sitting there
very confused saying IRS-CI is clearly involved in this case.
They're clearly targeting my client because of who he's married
to and who he's working for. There's unambiguously more that
needs to be considered by the Court based on this witness's
under-oath testimony as it relates to selective prosecution.
And there's some crossover here, perhaps, with bias and
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impeachment and things like that. But as it relates to
selective prosecution, that testimony should happen in this
Court's presence outside the presence of the jury.
So that was the logic in me saying, I think it would
be benefit all the parties to hit a big time out, have an
evidentiary hearing. I think we're entitled to discovery
before then, but at a minimum let us put on evidence at an
evidentiary hearing so that the Court is not guessing as to
what these forms are or what these forms mean and we can
actually have a fully-established, developed record and
meaningful fact finding with the law applied to it before this
case proceeds to trial, if it ever does, which it shouldn't
because of the motion to dismiss.
But in any event, that's where we're coming at it
from. So I think that when the Court looks at this whole
package of documents that within the context of the other
facts, that to no fault of the Courts aren't before the Court
because we haven't had that evidentiary hearing, that's the
problem.
THE COURT: I guess the problem that I'm having is --
and we'll talk about what's relevant at trial and what's not is
we're talking about selective prosecution, which we've already
discussed is a demanding standard and there's a certain showing
that you have to make before we even get to the question of
discovery. And you're focusing on kind of why they pursued the
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investigation and investigation questions. And I guess my
initial question at the prior hearing, and I'll ask it again in
terms of the discriminatory effect, is what is the proffer,
what has changed with respect to whether the government, who
has brought charges and indicted this case and is pursuing this
prosecution, whether or not Mr. Merritts has been singled out
for prosecution and for these charges and treated differently
than similarly-situated people.
I'm hearing you raise issues about the motives of IRS
investigators, et cetera, but let's talk about what has changed
since I ruled about whether or not Mr. Merritts is being
treated differently in terms of the charges that have been
brought against him by the government that are different or
that members outside of whatever class you're saying he's in
have been -- others that have allegedly committed wire fraud
offenses haven't been prosecuted for.
And then with respect to that, I think I'm a little
bit confused about what class you're saying he's in. Because I
think at the last hearing I was under the impression that the
defense theory was, well, the Biden administration initiated
this investigation, essentially the long and short of it was
didn't pursue it. And then once the administration changed,
the current administration decided to indict this case because
Ms. Bush is in the opposite political party and was outspoken
against the administration.
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Now the evidence that you're bringing forward is
actions that occurred during the Biden administration. And now
I understand you to be saying, well, you know, she was
outspoken against the Biden administration and so that might
have motivated this, which is something different. So I'm not
exactly sure what the theory of discrimination is in this case.
I guess it's just that he was married to this particular
outspoken person.
But I still am caught on -- the question that I
focused on initially is has anything changed with respect to my
ruling. And I understand that you disagree with my ruling and
your argument is preserved. I found that this is a wire fraud
case and I didn't see anything before me to suggest that
Mr. Merritts is being prosecuted for a wire fraud crime and
that other similarly-situated people outside of his class,
however defined, have not or would not be prosecuted.
So if you have something about what's changed -- what
this evidence changes with respect to that conclusion, I'll
hear you.
MR. GELFAND: I do, Your Honor. And I appreciate the
opportunity and the clarification.
So the District of D.C. in the Judd case, J-U-D-D, 579
F.Supp. 3d 1 inside page four says in no uncertain terms that
while it acknowledges there's a presumption of regularity that
applies to prosecutorial decisions, quote: The government
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cannot base its decision to prosecute on some unjustifiable
standard such as a defendant's political beliefs. End quote.
And the Judd case is quoting for political beliefs the
D.C. Circuit's Branch Ministries case, 40 F. Supp. 2d 15. I'm
sorry, I might have miscited that but the Branch Ministry's
case that cited in our brief.
The reason that that's all important is because the
three things that have changed, at least, since the initial
argument and the Court's initial evaluation and analysis of our
motion is number one, IRS-CI's involvement in this
investigation as an active participant in this PPP loan fraud
investigation has now become clear, and before it was
represented to us that IRS-CI was not actively involved.
And that's very significant in light of what the
IRS-CI records show because they're an investigative agency
that is actively investigating, at least participating in the
investigation that leads to the two wire fraud counts that are
currently pending against Mr. Merritts.
Number two, we believe that the IRS documents when
considered in the context of what an evidentiary record would
establish are really a smoking gun and establishing that he is
being investigated and prosecuted because of who he is --
because of his political beliefs, because of who he's married
to, a democratic Congresswoman, because he's actively working
on that person's political campaign.
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And in the event that the Court wants to make
credibility determinations after hearing under oath testimony
of the author of those documents or authors of those documents
subject to cross-examination by both party -- you know, subject
questioning by both parties and this Court's questions, the
Court can make those. But the Court's now -- it's impossible
for the Court to reach that fact finding without hearing that
evidence and making those credibility determinations.
The other thing that has changed dramatically since
the pretrial hearing is that there are effectively inconsistent
representations as to what this one ongoing investigation was
and wasn't and why that's relevant and how that's relevant to
the selective prosecution claim. Because what's crystal clear
is there was one ongoing grand jury investigation. It clearly
involved FBI, IRS-CI and the U.S. Attorney's Office for the
District of Columbia. That one investigation was initially
focused on campaign funds-related expenditures. And that fell
flat because there clearly wasn't a crime.
The targets of that investigation were the people
listed in the invite letter in March of 2023, because there's
always a target of a federal grand jury investigation,
especially one where you're subpoenaing the U.S. House of
Representatives. And at that point they make a decision to go
after Cortney Merritts for essentially what they believe is
left in this investigation. And that decision is motivated
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based on the current record before the Court, by the way,
exclusively by who Mr. Merritts is married to and whose
campaign he's working for.
It's literally the smoking gun, but I think that we
need to have a fully-developed record so that this Court -- to
be blunt, if the Court's inclination is to buy what the
government is selling which is this really had nothing to do
with why he was prosecuted, that has to be based on evidence,
not just assertions.
We've clearly established threshold evidence, all of
which -- and I understand there's been some frustration with my
use of the word "hidden." I don't really know or care whether
it was intentionally hidden from us. It was hidden in the
sense that it wasn't available to us, which is why it's the
basis of a motion to reconsider.
And the government's position there is, well, we gave
it to you as soon as we have it. Fine. I take the at face
value. That's not the issue. It's not a disclosure issue.
It's that the Court now has evidence of this. So I do believe
candidly, Your Honor, our initial suspicion was that this may
have actually been a -- more than suspicion. Our initial
allegation was that this has a certain partisan motivation.
But now you have to consider what's actually in the record,
which is let's go after this guy because he's married to a
democratic congresswoman during the President Biden
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administration. And it was true, Your Honor, that what Cori
Bush -- and I'm not here to talk politics, but what Cori Bush
has in common is that she's outspoken against the
establishment, whether that's the Biden administration or
whether that's the Trump administration. And so this is not
just some baseless allegation.
The Court in Branch Ministries in this judicial
district says, look, of course you're entitled to discovery
because how would you have access to -- it's ironic, they
actually say internal IRS records, and these are the kinds of
internal documents. We have some of them. We want to
establish evidence on the stand for this Court to consider the
IRS-CI special agent or agents who wrote those documents. The
government has said it's only one even though other people's
names are on them. The evidence will establish what that is or
what that isn't.
If the Court has questions about, well, what's the
context of this form, what does it mean, why did you write
that, the Court needs to not only hear the evidence from the
witnesses with firsthand knowledge, but to make credibility
determinations as to whether that's true, whether it's
plausible. And that's the problem.
So there's a lot that has changed since the Court
initially -- I understand it's a demanding standard. The irony
of the whole thing, Your Honor, for whatever it's worth, is
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that I can't imagine a case where the evidence is as clear
where the government actually says the quiet part out loud as
they did here. And there's more documents there. There's more
testimony here. And we're entitled to fully develop that
record, at a minimum, so that this Court can make a reasoned
decision, as obviously the Court wants to. That's what I'm
asking the Court to do in no uncertain terms.
THE COURT: Okay. I'll hear from the government,
whoever is dealing with this.
MS. MILLER: Thank you, Your Honor. I'm just going to
try to respond to all of those points that were made there at
the end in response to the Court's questions, as those appear
to be the issues that the Court is most interested in.
I think, though, just before I even go there, Your
Honor, the very large question that just keeps occurring to me
is let's assume everything that Mr. Gelfand is saying is true,
which it isn't. But if we did, what he would have established
is that there's a suggestion that an IRS agent drafted a
document showing that that agent wanted to prosecute or
investigate, I should say, him for political reasons. It
doesn't show that. But I'm saying that's what it would show.
Unfortunately, neither that agent nor his agency makes
charging decisions. The U.S. Attorney's Office decides whether
to present to a grand jury and whether to seek charges. So
again, while this might go to the bias of that agent were he
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called as a witness, this has nothing to do with prosecution.
And certainly doesn't rise to the level through this one
document of establishing the elements required to even get
discovery, which are almost as high, frankly, as the elements
you need -- the standard of proof you need to prove a case on
the merits for getting discovery in selective prosecution.
So just for that reason alone, we could stop and say
how have you shown the government decided to prosecute your
client. Because what the IRS says in a document, they're not
the prosecuting authority. And the U.S. Attorney's Office is
the prosecuting authority.
But putting that aside, I just want to say the first
thing that Mr. Gelfand said was that we represented that the
IRS didn't have an active part in the PPP loan fraud, which is
honestly, Your Honor, just a lie.
First of all, Mr. Gelfand had full discovery in this
case since day one. The letter that he's referring to, for
example, where he's saying, oh, the agent exchanged messages
about a grand jury subpoena in the case, he had that well
before the motion for reconsideration, well before the initial
motion to dismiss for selective prosecution. There was nothing
hidden about IRS-CI's participation and nothing he's saying now
is new evidence that would warrant reconsideration at all.
Further, as we explained in our opposition to his
motion for reconsideration, we never said the IRS didn't
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participate. As we laid out in detail in that opposition --
and I don't want to belabor this forever for the Court, but
essentially, Your Honor, as the IRS -- and it's right there on
their website, IRS-CI -- or it's cited in the motion, they can
do a primary investigation. And if that primary investigation
in which essentially their powers to investigate are somewhat
limited, leads to additional information, they can open what's
called a subject investigation. And this is all explained in
our motion.
And what the record is in this case, Your Honor, is
that in May of 2023 the IRS began a primary -- basically a
preliminary investigation of the campaign fund case at the
FBI's request. And then essentially after investigating in
connection with the investigation to the campaign fund, they
observed the inconsistency between the defendant's finances and
the loan documents and brought that to the attention of
government prosecuting authorities who then said, okay, go with
that. And they continued in their primary investigation by
doing the very things that Mr. Gelfand's talking about, like
asking us to issue subpoenas that they served in connection
with this case.
And I imagine that included participating in the
reverse proffer to answer any tax questions that might be
raised by Mr. Gelfand since everybody understood that his
background was in tax.
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So no one ever said that the IRS wasn't present and
never suggested it. And the discovery that Mr. Gelfand's had
in hand from the very beginning has always made that very
clear. And if he had wanted to argue that, he could have
argued it at the initial motion hearing.
And ultimately what happens is the IRS agent does go
further with the preliminary investigation of the Paycheck
Protection Act case, doing things like issuing the subpoena or
helping us facilitate our ex-parte request for tax records in
relation to just that investigation. And then at our -- and
then -- sorry, I shouldn't say at our request because I don't
know that it was.
But then the next thing that he did after getting back
the grand jury records and seeing that indeed the bank records
or the lender records and the information that he already had
about the Covid loan, et cetera, and whatever else he observed
was not consistent, he began drafting what's called the Subject
Initiation Packet, and that is the item that we attached to our
opposition. It's comprised of the documents that Mr. Gelfand
attached to his motion, but it puts them in context. Which is
to say that the agent drafted a packet of information to go up
to his supervisors to request permission to take this from
being a primary investigation to a more in-depth subject
initiation investigation. And that is what his bosses
declined.
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They said, no, you're asking to investigate a bank
fraud case here, but the IRS has certain standards for whether
or not we will assist in the investigation of bank fraud and
what we've set forth here in your packet doesn't meet it. And
that's why that pact is just a draft. And that's why the
evidence in that packet shows that there's no signature from
any chief or of that from anyone. It's literally the agent
drafted it and his bosses said, no.
So while it might have been drafted for the signature
of these high-up officials, they never signed off on them
because the request to open the investigation was declined for
totally normal business reasons, which, by the way, also
completely undercut the argument that this is a politically
motivated case because the IRS actually pulled out.
THE COURT: Wait, I'm sorry. I'm getting some
feedback or something. I don't know what that is.
MS. MILLER: I'm saying --
THE COURT: Go ahead.
MS. MILLER: The IRS pulled out. First of all, they
have no say in whether charges are brought. But second of all,
they actually declined to go beyond a primary investigation in
this case. And my understanding is that after the indictment
was brought finally with no charges that this IRS would sign
onto, that's when they closed out their primary investigation
in this case.
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And so, Your Honor, all the facts that Mr. Gelfand
keeps saying are facts are not facts. They're not shown by the
document that he's relying on. And so he has not met the
standard for getting additional discovery. Honestly, we
probably shouldn't have even disclosed this document to him,
Your Honor, because unfortunately, I learned after the fact
that Brady doesn't even apply. The whole issue here is whether
he's entitled to discovery of selective prosecution. There is
no Brady element in respect to selective prosecution. And I
cited the cases for that in my -- in the most recent pleading I
filed on this issue.
So the fact that we gave him something that allowed
him to make all the specious arguments that he's making now
that still don't satisfy the standard doesn't entitle him to
more discovery, because this is his burden. Not ours. And
when he's asking for an evidentiary hearing, what he's saying
is, I want to go on a fishing expedition in front of the Court
and seek discovery on the record. But he hasn't established
that he's entitled to discovery, so he shouldn't get that
hearing.
So that's in response on that Your Honor. In response
to his --
THE COURT: Can I just stop you, Ms. Miller. This has
been going a little bit longer than I anticipated this. I do
need to take about a 10-minute bathroom break, a
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collect-your-thoughts break. Actually, let's make it since
it's 2:25, let's just say we'll come back at 2:40 and then I'll
hear the balance of your argument.
Ms. Duncan, can everyone just stay logged on and with
their cameras off and muted, or do we need to have people log
off and log back on?
DEPUTY CLERK: No, I can place them in the waiting
room for the time being and then I'll bring them back in.
THE COURT: Okay. So we'll see you guys back in a
little less than 15 minutes at 2:40.
(A recess was taken at 2:26 PM)
DEPUTY CLERK: This Honorable Court is back in
session.
Your Honor, we're back on the record in Criminal Case
25-76.
THE COURT: All right. Welcome back.
Ms. Miller, I think you were finishing up your
argument. Is there anything more you wanted to say on the
selective prosecution piece?
MS. MILLER: Yes, Your Honor. And I won't be much
longer. I promise.
THE COURT: That's okay.
MS. MILLER: Basically, I just wanted to say to obtain
discovery relating to a selective prosecution claim, the
defendant has to make a colorable claim of selective
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prosecution. That means he has to show some evidence tending
to show the existence of the essential elements of the defense,
meaning some evidence of both discriminatory effect and
discriminatory intent. And as the Court has already
acknowledged, this is a very rigorous standard which is
intentionally a significant barrier to the litigation of
insubstantial claims. He doesn't get discovery or any
evidentiary hearing or anything else if he hasn't made that
colorable claim.
So with respect to the intent part, Your Honor, as to
my earlier point, or I said he hasn't shown the intent that the
decision maker acted with discriminatory intent, I just wanted
to point the Court to the Stone case, 394 F. Supp. 3d 1 at 36,
which clearly states that the defendant has to show that the
decision maker acted with a discriminatory intent. Obviously
for all the reasons I've already stated, neither the agent nor
the IRS-CI is a decision maker about what charges to bring in
this case.
Second, Your Honor, even if they could somehow be
conceived to be a decision maker, which they can't be on this
record, the document in question is not a smoking gun. It
doesn't show discriminatory intent by anyone for the reasons
that the Court already observed and that are further completely
addressed in detail in our motion where we take the Court -- or
in our pleading where we take the Court through the entire
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document and explain it.
But the Court in sum is correct, that the agent was
responding to language that was already in there. The agent
was explaining the case would get media attention, which is a
completely legitimate basis or factor for the government to
consider because it goes to the issue of general deterrence.
And so that's not an issue. And to the extent that the agent
is noting that the defendant is married to a congresswoman or
working on her campaign, it's clearly in response in that
document to questions about the sensitivity of the
investigation. And that's because at the IRS, if the
investigation is sensitive, it goes to a higher level of
approval authority than if it's a non-sensitive investigation.
And so the agent was, of course, obligated to note the
potential for this to be classified by his bosses as something
sensitive because of his status as being married to somebody
who would be considered a sensitive subject.
So had he failed to include that information, the
Court could certainly understand how his bosses might feel if
they found out later in the press that they hadn't been told
that before they approved the investigation.
And finally, Your Honor, I'll just say to the Court's
point, we still don't know what protective class he's claiming.
First it was that the Republicans, I guess, were against his
wife and therefore were against him. Now it's because the
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Democrats are against his wife and therefore against him. And
so, best I can tell from the current arguments being provided
here is that the best way to get immunity from prosecution is
to marry an outspoken politician who has issues with both major
parties, and that's now a protected class. That appears to be
the argument in this case.
So, Your Honor, at bottom, he just has not satisfied
the standard. And given, like I said at the beginning of this
discussion, that he's shown no new evidence of discriminatory
effect and given that this Court already ruled that there was
insufficient evidence of discriminatory effect to warrant
discovery, this conversation should really just be over at this
point.
That's all I have.
THE COURT: I'm prepared to rule on the motion to
dismiss, and then we will talk, then, about the other aspect of
the motion to reconsider.
I do appreciate the defendant's arguments, but I am
going to deny the motion to reconsider my order denying the
motion to dismiss for selective prosecution.
I do want to say one thing that I think Mr. Merritts'
additional filings have, I don't know, clarified, maybe changed
is -- I did see that there was some reference early on to
Mr. Merritts being, maybe not a target, but a subject of the
investigation that involved, perhaps, campaign finance and
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other charges.
I did talk at the last hearing about my concern
about -- I think I called it a mismatch with respect to the
defendant's theory that if they were targeting Ms. Bush and
never prosecuted her but prosecuted her husband, it seems to me
it would have been a stronger argument to say they were
targeting Ms. Bush and then prosecuted her for something.
So whether "target" is not the right term of art, I'm
not suggesting that there were any misrepresentations, but I do
see where it appears that Mr. Merritts was, at minimum, a
subject of investigation, it looks like even before these
specific financial PPP loan issues were discovered. I don't
know if wire fraud is referenced and that initial letter
involves these charges or something related to the campaign
finance issues, I don't know. But I did want to clarify that.
I do think that my opinion on that piece has changed. I don't
have that concern anymore.
Nevertheless, I don't see these documents as providing
any basis for me to change my ruling. I don't read the
documents to be the smoking gun Mr. Merritts did, but if it was
just about that, that wouldn't be the basis for my decision
because I would let Mr. Merritts make the record to establish
that his reading of the documents should -- makes more sense
over mine. But I don't see anything from these documents
changing my view that the defense has not made a proffer that
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political affiliation or animus or whatever other
discriminatory motive factored into the U.S. Attorney's
prosecution of the case in their decision to prosecute this
case. At most, again, I don't read them the way that the
defense does, but at most it seems to reflect the response of a
single IRS agent and doesn't change my prior ruling as to the
selective prosecution elements.
Even if I was on the fence about that piece and could
attribute -- and both read the documents the way the defendant
does and attribute that to the U.S. Attorney's Office in terms
of its prosecution decision, I still don't see how this impacts
the aspects of my ruling that go to the effect prong. And that
is that Mr. Merritts was treated differently than
similarly-situated individuals. I put my ruling on the record
at our pretrial hearing as to why I was denying the motion with
respect to that, and I don't see that these documents change or
suggest a change of my ruling. So I'm not dismissing this case
or permitting discovery based on these documents or
reconsidering my ruling.
Now there is the issue of what, if anything, this
changes about the scope of the Court's order about what is
permissible for Mr. Merritts to inquire about or elicit at
trial in terms of bias or other information that can
implicate -- implicates his theory of defense.
So Mr. Gelfand, I guess my question for you is what is
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it you want to elicit, ask about, argue that in light of these
new documents that you don't think my order allows? And I'll
say, I thought my order largely ruled in your favor with
respect to what you were attempting to do at trial. My concern
was that I didn't want to make this a mini trial about --
whether related or unrelated about the details of the
investigation of Ms. Bush, meaning the nitty gritty of the
campaign finance violations, what was uncovered, what wasn't
uncovered. I didn't think those details were relevant to
anything. But I thought I clarified and made clear that even
though I denied your motion for dismissal based on selective
prosecution and that the question of selective prosecution is
not a jury question, I'm not going to limit your ability to
cross-examine witnesses about their alleged bias against
Mr. Merritts, whether that's because of him or because of
people he's closely affiliated with.
I do think that the investigation into him is
relevant. If you want to show the bias of the people who
investigated him, if you want to poke holes in the
investigation that was done, if you want to make other
arguments to the jury about the lack of evidence because of an
issue with the investigation, that's always fair game in a
criminal case, and I don't rule differently here.
So I guess separate from the subpoena issue which
we'll deal with next, what is it that you're asking me to
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reconsider that you want to do in light of this new information
that you don't think my prior order permits you to do?
MR. GELFAND: Your Honor, candidly I appreciate the
Court's clarification, because maybe we didn't understand fully
your prior order, which is fine.
THE COURT: Okay. That's good that we're here.
MR. GELFAND: And so if that's the case, I guess to
clarify, my understanding -- but it sounds like that's not the
case -- was that the Court was basically treating this as
essentially two investigations. One is off limits. One is on
limits.
And what we intend to do is question the agents as
otherwise appropriate on the single investigation into both --
not getting into the nitty gritty -- I mean, I agree with -- I
understand the Court's limit there -- but the fact that there
was an initial investigation into Mr. Merritts and Ms. Bush,
the general subject matter of that investigation and
challenging the government's premises of basically how we got
from there to today. I don't mean in terms of prosecutorial
decisions but in terms of the investigative decision making and
the investigative aspects that were made. And that includes by
FBI, by IRS. That includes subpoenas that were issued. That
includes what they did and didn't do, who they did and didn't
talk to.
Before there was some ambiguity where there was some
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concern -- I mean, bluntly speaking, the jury needs to know
that Cori Bush is Mr. Merritts' husband (sic), that Cori Bush
and Mr. Merritts were both at least the subjects -- use
whatever word we want to use -- of an initial investigation.
And here we are as a result of that investigation. And then
basically challenge like the Court just said biases that come
from that, holes in the investigation, the lack of certain
evidentiary maneuvers. I mean, I don't want to pre litigate
the case right now.
So I'm not sure any of that is actually inconsistent
with what the Court is saying.
THE COURT: Let me just clarify my order. So I had
said -- and I'm glad that we're here so I can say this, because
I do think there's a fine line, potentially, between
permissible questions about bias and then prohibited questions
that could go to selective prosecution.
So I granted the motion to exclude the details of --
and again, I didn't think Mr. Merritts was necessarily a
subject of the earlier investigation. I knew that the earlier
investigation dealt with payments that were made to him. But I
maintain that, again, it seems like you appreciate the kind
of -- there was some proffer about what was found or what was
not found as it relates to Ms. Bush, and I don't want to get
into the details of the campaign finance investigation that
seemed irrelevant to the investigation of Mr. Merritts, but
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certainly how the investigation started generally and then as
detailed as you want to be about the holes in the investigation
as it relates to Mr. Merritts, I think I could not prohibit you
from asking about holes in the investigation or things that
were not done in the investigation that should have been done
or the bias of any individual investigator.
So, again, my concern was kind of twofold. One is I
didn't want it to be a mini trial on what happened with
Ms. Bush. So I expect there to be very little in the way of
that investigation in terms of the details of what was found,
what wasn't found, what was looked in to, what wasn't, and what
the details were.
Second, at the pretrial hearing there were
sometimes -- I think your co-counsel would say things like they
were starting this investigation and now we're here for just
$20,000. I said, look, I have denied the selective prosecution
motion. Your record is preserved on that. But I don't want
there to be any evidence, argument, suggestion to the jury that
if they find that the government has proved their case that
they should somehow acquit or discount that because this is a
small amount or this is not an amount that's usually charged.
The jury is not going to ever hear what others are charged with
to be able to make that assessment.
MR. GELFAND: I understand that, Your Honor.
THE COURT: That is what I was largely concerned with.
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Again, I understand there is a fine line. I think it was
difficult at this juncture for me to anticipate. I'm not going
to ask you to proffer your examinations here. I think if the
government thinks that a question crosses the line into
something irrelevant, then we'll treat it like we do every
trial. And that is the government will object and I will hear
the question, I'll make a contemporaneous ruling. But I'm not
prohibiting you from asking questions about the testifying
witness's investigation of Mr. Merritts that led to these
charges. To the extent you want to ask the jury to discredit
the investigators or the evidence that they turned up in the
investigation or the quality of the investigation, I think that
would be error to do so.
So, Mr. Gelfand, do you understand the contours of my
order?
MR. GELFAND: I believe I do, Your Honor. And I was
taking notes as we were talking. The goal -- we will certainly
keep this away from a mini trial, as the Court aptly put it, of
Ms. Bush regarding the details of that investigation. I assume
from what the Court is saying, that it's just from a
30,000-feet level, it's fair game to ask, for example, a law
enforcement witness who's testifying when you initially began
this investigation, you were investigating both Cori Bush and
Mr. Merritts.
THE COURT: Yeah, I think if that's about this
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investigation, I don't think that's off limits.
MR. GELFAND: And I understand what the Court is
saying is essentially don't get into, there was a transaction
from Ms. Bush's campaign account to so-and-so. We're not going
to get into that stuff.
THE COURT: At the other hearing there was some
suggestion about that, broadly, the theory being, you didn't
find anything when you were investigating Cori Bush so now here
we are for $20,000. And I thought that the "you didn't find
anything" was complicated, because, one, it would require to
get into the details of what was found and what wasn't, and it
could potentially open the door for the government to put on a
lot of evidence about what was found.
So that's what I was more concerned about was getting
too much in the weeds of what happened with Ms. Bush to the
point where it's unrelated to Mr. Merritts.
Again, your question was about an investigation that
involved Mr. Merritts, and it may have involved others. It's
fair for you to ask that.
And again, it is hard for me to kind of, other than
the broad contours I've laid out to again -- I don't want to
suggest what your questions need to be or ask you to proffer in
detail the questions or get permission for what you want to
ask. So that's my ruling. And again, if there are questions
that you ask or arguments that the defense makes that the
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government thinks crosses the line into either inappropriate
information that would not relate to the question of guilt or
lack of guilt but to selective prosecution, I will entertain
those objections in realtime.
And again, I expect there to be very little in the way
of what happened in connection or the details of this campaign
finance investigation into Ms. Bush. So the government is free
to object.
So with that, is there something about these documents
that you think that you want to do that requires me to
reconsider my earlier ruling?
MR. GELFAND: Your Honor, I don't think it requires
you to reconsider your earlier ruling. I do intend to call the
IRS-CI special agent who undisputedly authored at least some,
if not all, of these documents as a witness, if the government
chooses not to call him. He is under subpoena. We've complied
with the two E regs. And to the extent that these documents
that he authored are otherwise appropriate for impeachment or
whatever it may be, obviously the Court can make
contemporaneous rulings at the time.
THE COURT: That's Agent Sequeira. I don't know if
I'm saying his name correctly.
MR. GELFAND: Agent Sequeira. The government has
represented, and I guess can correct me if I'm wrong on this,
that the two -- initially my read of the documents was that
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there was a supervisory special agent whose name is escaping me
right now, but the person who is on the documents that we
subpoenaed as well as the IRS-CI chief whose name was on the
documents.
If the government's representation is that those
individuals have not -- did not in (inaudible due to audio
distortion) then I think that Agent Sequeira is at least the
appropriate beginning witness. Perhaps the end.
THE COURT: Let me start with --
MS. MILLER: Sorry, Your Honor. We have lots of
questions too. I don't know if the Court wants to --
THE COURT: Let's just deal with the subpoena issue
while I'm here.
I would not quash the subpoena as to Agent Sequeira,
but to the other two, the IRS-CI chief and Agent Carter, does
the government have any information about -- were they at all
involved, to your knowledge, with any substantive aspect of
investigating Mr. Merritts?
MS. MILLER: Your Honor, I've never affirmatively
asked that question. All I know is what I represented to the
Court already, which is that the basis for wanting to call
them, which is that they're on these draft documents, because
it was presumed within Mr. Gelfand's motion that there must
have been finalized, signed versions of these documents
somewhere, that that's not true. So I have no -- and I have
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never heard of them being involved.
As I stated previously, to our knowledge, Agent
Sequeira's involvement was extremely limited. He's not the
lead agency. He wasn't the primary agency. He was asked to
join at the FBI's request and then did a very preliminary
investigation, which, Your Honor, for that reason alone, I will
say I understand the Court's not quashing the subpoena, but I
am really requesting that the Court require Mr. Gelfand to
proffer the purpose for calling him because other than trying
to back door impermissible arguments about why the prosecution
was brought, it doesn't seem like there would be a purpose in
calling him as a witness. This isn't a tax case. There are no
tax charges. His agency bowed out of an in-depth
investigation. The tax documents that we got were not provided
by him; they were provided via an ex parte order that we had to
go get because it wasn't a tax case and the IRS didn't join the
case fully.
So it just -- again, Your Honor, I don't understand
really -- I just want to ensure that there's not going to be
any back dooring of impermissible suggestions or argument on
that point.
THE COURT: I think Mr. Gelfand understands my order.
In my experience, both sides often don't necessarily call
everyone that they subpoena. I think I would not at this
juncture before the government has presented its case,
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require -- I think it's premature to require Mr. Gelfand to
proffer what these witnesses would testify to. I think there
has been some proffer as to what Agent Sequeira would testify
to.
He's the one that filled out that the form we were
talking about earlier?
MS. MILLER: Yeah.
THE COURT: So I think I would not quash that
subpoena. I would deal with him with the understanding that I
think I've made my order clear that Mr. Gelfand understands
that he can't back door inappropriate or impermissible
arguments and that if he asks a question that is impermissible,
that the government can object. And before the witness
answers, I will not permit the witness to answer any questions
that are impermissible.
With respect to these other two individuals, I'm not
necessarily hearing from the defense why the defense would call
these individuals. I don't think the defense would put someone
on the stand without any indication about what they would say
to just kind of just discover what they know.
So I guess I would say if you get to a point in your
case, Mr. Gelfand, where you think it's necessary to call
either of these two individuals, before you put them on the
stand I'll hear a proffer as to what their relevance is because
there's nothing that I see that would necessarily make them
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relevant in the case.
MR. GELFAND: Can I ask a question, Your Honor? I'm
sorry, I didn't mean to -- I apologize.
THE COURT: Sure. I was going to say I would defer
any motion essentially to exclude these witnesses from trial
because, again, to preclude a defendant from calling a witness
in his defense, to preclude any party from calling a witness is
a serious matter. And I want to make sure, one, that I'm not
doing it hypothetically, if it turns out that these witnesses
are not going to be called.
And two, I think it's a little bit premature to have
the defense proffer what they think their defense will be or
what they will ask defense witnesses on the stand. So we can
address this before the defense case when I think you'll know
whether or not you're calling them and you'll know why based on
what the government's case has been.
Go ahead, if you have anything additional to add.
MR. GELFAND: Yeah, I was only on that one point, Your
Honor, going to ask. I mean, it sounds like Ms. Miller has
said they have not actually asked these two witnesses, meaning
the supervisory special agent and the chief, what, if any,
involvement they actually had in this investigation and/or in
the drafting of those documents. I understand that those
drafts may have been initially drafted at least including by
Agent Sequeira.
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If we could get answers to those questions from the
government. Obviously, as the Court knows, it's a federal
criminal case. I can't depose these witnesses. These are IRS
supervisory agents, they're not going to take my call right
now. And so I'm a little bit limited other than what is
disclosed and discovery into what these people did or didn't
do. So it's a little bit of a chicken and an egg problem.
THE COURT: Ms. Miller, is that something you're
able --
MS. MILLER: Your Honor, I don't understand --
THE COURT: Go ahead. I was --
MS. MILLER: I'm sorry. He has the ability to
subpoena them and it's up to them whether they want to
interview with him or not. It's not our job to ferret out the
defense's case for the defendant. This is no different from
every other case where the defendant wants to talk to a police
officer or somebody else who is involved in the government's
case. We don't go asking the officers everything the defense
wants to know and then telling the defense what they say. If
he has a good faith basis to call them and wants to put them on
the stand, he can do that. But I don't think the Court should
order us to do his job for him. He has the ability and has, in
fact, subpoenaed them. So if he wants me to make them
available and if they want to interview ahead of time, that's
up to them. But I don't think it's up to us.
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THE COURT: I understand. I'm not going to order you
to do anything. I understood Mr. Gelfand was just saying he
can subpoena them and try to talk to them and require them to
come to court. But before he does that, if you knew or if it
was the case that they weren't involved, he wouldn't go through
those motions.
I won't order you to do it. I'll let you two
confer --
MS. MILLER: Your Honor, when you say "involved" he
has the discovery from this case. If they took steps that were
related to the investigation of this case, they would be on the
documents that he got.
The fact is that Mr. Gelfand only subpoenaed Agent
Sequeira after he got this document, which as far as we can
tell is only relevant to his selective prosecution discovery
argument, which the Court's denied.
That's why we question why he wants to call Agent
Sequeira, and we don't see any reason why he would possibly
otherwise want to call these other two witnesses, and we're not
going to try and ferret that out for him. He can look at
discovery he's been provided and he can make attempts to
interview witnesses in his own time.
MR. GELFAND: Your Honor, we will call them if we
choose to. And I was simply responding to the government's
whole point of proffer for us. They've turned over what
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they've turned over so they understand the government's
position.
MS. MILLER: And, Your Honor, also, I should say I've
already informed -- two things. I assume the Court is not
going to require me to have the defense witnesses present on
January 12. They have to travel. They're not local. And I
asked Mr. Gelfand via email if he would agree with that but I
did not receive a reply.
MR. GELFAND: We agree with that.
MS. MILLER: And further --
THE COURT: He agrees.
MR. GELFAND: We agree, not the first day.
THE COURT: I'll let you-all talk about witness
scheduling issues. I hope not to get involve unless I have to.
MS. MILLER: Sure. I'm just saying we need sufficient
notice if Mr. Gelfand plans to call them to make travel
arrangements, et cetera. I've already informed Mr. Gelfand
that one of those two supervisors already has leave planned,
travel plans for what would likely be the week that he would be
calling them as a witness. And I don't want to tell that
person they have to cancel their travel plans based on
non-existent reasons and no reasons known at this point in time
that they will be called as a witness.
So that's another potential issue. I suppose there
are unique times when we could do a Rule 15 deposition or take
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their testimony out of turn, but I don't think anyone has
established a basis for doing that at this time.
THE COURT: Okay. I'll let you-all deal with the
witness issues. Mr. Gelfand, you can tell Ms. Miller when you
would -- if you know you're not going to call them --
MR. GELFAND: Yeah, of course.
THE COURT: -- let her know sooner rather than later
and make sure there's sufficient notice and all of that.
MS. MILLER: I mean, Your Honor, I'm not telling that
person to cancel their travel plans, and I'm not hearing the
Court ordering me to tell them to cancel their travel plans.
MR. GELFAND: Well, the travel plan is week two and I
think we all anticipated this was going to be a one-week trial.
Obviously, you know.
MS. MILLER: Your Honor, look, trials sometimes don't
go as expected. The witness will be here the first week of the
trial. He will have to travel and will have to make travel
arrangements. He's not -- it's not someone I can just call up
and ask to come here.
THE COURT: Ms. Miller, now that we are really close
to the date of trial, how many days do you anticipate the
government's case taking based on your prep now if you had to
give an educated estimate.
MS. MILLER: Mr. Kelly has, I think, probably a better
sense, but I'm going to guess after jury selection --
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THE COURT: After the jury is selected.
MS. MILLER: I'm going to guess two to three.
Mr. Kelly thinks resting Thursday. That's why I was saying,
Your Honor --
THE COURT: I'm not going to hold you to this, but
assuming everything in the government's case happens as you're
expecting so you can exactly know what your defense case would
look like, how many days do you think for your case?
MR. GELFAND: One to one and a half, Your Honor.
THE COURT: So if you were to call these witnesses,
you could do so on Friday the 16th?
MR. GELFAND: I could, Your Honor. I'm happy within
reason to call people out of order within our case. We're
reasonable people.
THE COURT: So it sounds like there's no issue there,
but I'll let you-all discuss that.
Anything else?
MR. GELFAND: I've got to make one request for the
record, Your Honor. But I know how the Court's going to rule,
I just need a ruling.
THE COURT: Okay.
MR. GELFAND: On the motion for selective prosecution,
we have requested today and are requesting an opportunity to
put on evidence in support of our motion prior to the Court's
final ruling on that. I gather from the Court's ruling the
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Court is denying that request but just wanted to make that
clear for the record.
THE COURT: Wait. Put on evidence not obtained in
discovery but evidence that you have now? I would have --
MR. GELFAND: In other words -- I'm sorry, I keep
interrupting you and I apologize.
So Your Honor, what I was referring to is there's been
a lot that's factored into the discussion today and the Court's
analysis about what these IRS agent records are, what they're
not. And there's no evidentiary record before the Court as to,
to be blunt, what our position is on those records and what the
government's position is on those records.
And so to the extent that the Court is factoring in --
in other words, there's a difference between discovery to find
out additional information and an evidentiary hearing to
basically establish, for lack of a better way of putting it,
what we believe the evidence would show.
And so just from a procedural due process standpoint
wanted to have a clear record that we were requesting the
opportunity to put on evidence. And it sounds like the Court
is denying that.
THE COURT: Can you hear me?
MR. GELFAND: I can hear you but can't see you.
THE COURT: For some reason all of a sudden I froze
and then the camera went out. So I'm going to try to fix this
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while I'm talking.
The evidence that you want to put on related to the
documents, I mean, I've looked at the documents. I have made a
determination that (inaudible due to audio distortion) to the
elements of selective prosecution that would change my ruling.
So I don't see any gaps that that an evidentiary hearing about
these documents -- yes, I will deny that just so the record is
clear.
MR. GELFAND: Thank you, Your Honor.
THE COURT: I don't know what's going on with the
camera, so I apologize.
MS. MILLER: Sorry I'm not a cat.
THE COURT: Hold on. For some reason -- can you-all
hear me better now?
MS. MILLER: Yes.
MR. GELFAND: Yes.
THE COURT: I know our court reporter was having
difficulty hearing me. Ms. Duncan, can you ask Ms. Johns if
it's better?
DEPUTY CLERK: Yes. She says it seems to be better.
THE COURT: I don't know what's going on with my
camera. But let's keep going while I try to fix this. We're
nearing the end. I don't think it's worth me trying log off
and go back on.
Okay. Anything else, Mr. Gelfand, about the issues
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related to the motion to reconsider?
MR. GELFAND: No, Your Honor. I would just obviously
stand on and preserve all the previously raised arguments and
objections, but nothing further to be heard on. Thank you.
THE COURT: Okay. Ms. Miller, you said you had
questions.
MS. MILLER: I do, Your Honor. I think we're confused
about the Court's ruling on what the defense can elicit. And
so we just want to really make sure that we understand
because -- so for example, Mr. Gelfand is apparently allowed to
elicit that Cori Bush is the wife of the defendant and that
both were subjects of an initial investigation. Is the topic
of that investigation something -- it doesn't seem to be
relevant, Your Honor. And I guess what I'm saying is it seems
like we're going down -- the Court's calling it a fine line.
I'm very concerned that essentially where Mr. Gelfand is trying
to go here is to say the investigators are politically biased
against him.
THE COURT: If he wants to ask them about their
political bias, why can't he argue to the jury, the jury
instruction talks about biases affecting credibility. If these
are your testifying witnesses and he wants to attack their
credibility, I don't think I can --
MS. MILLER: I understand, Your Honor. And so I'm
really just seeking clarification. But if he's going to get
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into are you a Republican, are you a Democrat, I guess the
first question I have in terms of that being bias is I guess
the argument would be they're incentivized to lie because
they're of a different political party than the defendant. I
mean, all right. I mean, I guess we can address that.
THE COURT: If he wants to ask them if they're not
being truthful because they don't like Mr. Merritts because of
who he's married to, if that's what as an officer of the
Court -- I don't know all the discovery. I don't know all the
ins and outs of the case. If that's what he's suggesting, that
he thinks there's a plausible possibility of given the
information and he wants to ask that request, if they say no,
then that's the evidence in the case, or if they say no and
they're impeached on that because of some prior statements.
Again, I don't know how I would craft an order that does not
allow the defense to ask a witness if they are motivated by
some dislike of Mr. Merritts for whatever reason.
MS. MILLER: Okay.
THE COURT: Do you understand? You get what I'm
saying?
MS. MILLER: Yes, I do understand that. Our concern
is if he even starts saying what the prior investigation was
about at all, it just starts to create the side show that the
Court said it wanted to avoid. And I think he can get -- the
Court has the right to balance against non probative,
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cumulative evidence and letting him establish the bias that may
or may not be present.
And as soon as there is discussions about what the
prior investigation was about, what's going to come into play
then is, well, it was a prior investigation where Cori Bush was
the main subject. All the charges that could have been brought
had to require her. It was for campaign finance abuse that
primarily related to her paying money to him for security
services even though there was no evidence established that he
ever had any real security company. That was, in fact, what
started this entire second investigation which is the Paycheck
Protection loan wasn't for a security company at all, it was
for a moving business.
So we start to go down this well, what was it about
and what did it show about them. And a little while ago Mr.
Gelfand made some comment about "and clearly it showed that
they were innocent." And obviously the Court's well aware that
not bringing charges doesn't clearly establish someone's
innocent. There's lots of reasons we may not bring charges.
THE COURT: Let me ask you, Ms. Miller, so you're
going to present your case in chief. You're not going to just
tell the jury -- I'm assuming that the jury is going to have
some information as to how the testifying witnesses discovered
this potential violation, which is going to --
MS. MILLER: The way we were going to do it -- the way
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that we understood the Court's ruling, which obviously is not
what was intended was when you said don't mention any details
of the prior investigation, we were essentially just going to
do a very brief leading question to the agent to the effect of
during your unrelated investigation did you become aware of --
did you obtain Mr. Merritts' financials and learn that he had
sought a loan. And that was it. We weren't going to go
into -- and we were going to intentionally lead to keep out of
any of that.
But if the defense is permitted to go there and start
getting into all the details of all of that, then how we
address it on direct changes. So I guess we really do need to
understand.
THE COURT: What I'm trying to do is just pull up --
just one second.
(Pause in the proceedings)
THE COURT: I think this is where the initial document
when I said that there is some things that the defense has
presented that have kind of changed in my mind, I was under the
impression that there was an investigation of Ms. Bush and that
in the course of that investigation they learned about
something involving Mr. Merritts and kind of opened a second
investigation.
Now I see that there is this notice, this letter,
whatever you want to call it. It says: This office has been
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involved in an ongoing grand jury investigation of Cori Bush,
Cortney Merritts, two other individuals. It involves
allegations of incidents.
Is it fair to say it was unrelated if part of that
investigation was of him? I didn't understand that initially.
So I was thinking, why are we bringing up any details about
this completely unrelated investigation of a third party other
than as necessary to just give the jury an understanding of why
Mr. Merritts is here.
If he was -- whether it's target subject, if they were
looking into him for various things and that investigation is
kind of what led us here, again, my concern is if the defense
wants to ask questions about the holes in the investigation or
lack of investigation or steps that weren't taken in the
investigation, how do you propose I prohibit him from doing
that?
I was concerned about the details of Ms. Bush and the
campaign finance issues. I don't mean to be going back on what
I said before. I think now I have a different understanding of
the nature of the, whether it's prior or initial investigation,
however you want to call it.
Ms. Miller, maybe I'm misunderstanding.
MS. MILLER: I think, Your Honor, that at bottom, I'm
struggling with a few different things. Number one is I really
feel like we're veering into this idea that he's trying to
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suggest to the jury that the case was brought out of political
retribution. You had one political investigation targeting his
wife and even him. And when you couldn't make that
investigation, you brought this case that any reasonable person
would think is insignificant. That is exactly what the Court
is saying he can't do.
THE COURT: I am saying he can't do that.
MS. MILLER: So then the question becomes how far does
he need to go or can he go to ask agents essentially just are
you a lier. I want to show you're a lier by showing you have
corrupt political motivations for saying what you're saying
here. And I don't think that that requires going into details
of the investigation into Cori Bush.
The Court keeps saying he can go into the details of
the sloppiness of the investigation, I think he means the
entire -- and maybe the Court does too -- the entire thing. Or
does the Court mean we were sloppy in the Paycheck Protection
Act investigation because it seems --
THE COURT: Let me just clarify because I'm looking at
this language that suggests that there was an ongoing
investigation into Cori Bush, Cortney Merritts for campaign
funds, campaign expenditure reports, false statements, wire
fraud, which is what he's charged with here, falsification of
records, et cetera.
Maybe clarify for me, that is the investigation that
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has brought us here, correct?
MS. MILLER: I think that Mr. Rothstein, who's on the
phone, can answer that better. Because what I don't know, Your
Honor, I truly don't, is whether that wire fraud charge that's
listed there is in reference to wire fraud involving the
campaign fund money as opposed to -- meaning, not this
investigation. Not the investigation into --
THE COURT: If we're talking about an investigation --
let's put Ms. Bush aside. If we're talking about an
investigation of Mr. Merritts and the story of who investigated
him and how we got here, and how the government developed its
evidence that it's using against Mr. Merritt's in this case.
Let's put Cori Bush aside. Now I have a document that suggests
that Mr. Merritts -- I don't care if it's "target" as a term of
art or subject, that he was being looked into. And that that
process of looking into him, investigating him, revealed the
evidence that is going to be introduced against him in this
case.
MS. MILLER: I think that's a relevant fact, Your
Honor. It's a relevant fact that he was being investigated,
not his wife, not that it was political, that they were
investigating it him for one thing and they couldn't make it
and therefore they have a career motivation to pin something
else on him and lie.
THE COURT: Put aside the career motivation. I'm just
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saying -- put aside the bias. I'm just saying that he should
be able to ask -- I will permit him to questions about the
investigation of his conduct that resulted in the government
obtaining evidence that it is introducing against him in this
case. I don't understand how I can preclude him -- and we'll
talk about Cori Bush later. But just he was the subject of an
ongoing investigation. Through that investigation, I
understand the government gathered evidence, is introducing
evidence against him at this trial based on than investigation.
He can ask the people that investigated him about the
investigation into him and the evidence that was obtained.
MS. MILLER: Okay.
THE COURT: So the question is, well, what can he ask
about the investigation into Cori Bush and what was obtained.
I think very little. This document says that they were
investigating Cori Bush and Mr. Merritts for X, Y, Z. I expect
the questions to be focused on the investigation, now that I
know that he was a subject of this investigation, to the
investigation of him. I've already said, I don't think the
details of any investigation against Cori Bush separate and
apart from the investigation of Cortney Merritts and kind of
what was found that implicated her and what was not found and
why she was not prosecuted or what the status of the
investigation -- that doesn't feel very relevant to me at all.
MS. MILLER: Right. Sorry to interrupt.
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THE COURT: No, go ahead.
MS. MILLER: What I'm confused about, Your Honor, is
if the investigation into him that didn't result in any charges
that he's allowed to, quote, get into the details of, where we
end up is the government putting on prejudicial evidence to the
effect that he's going to say that investigation didn't go
anywhere and we're going to say, well, was that because there
was no evidence?
No, it wasn't.
Well, why? What did you find?
Well, we found -- we were looking into whether or not
he had a legitimate security company.
We were not going to offer evidence in this case that
he also lied about security services. But if he's going to get
into that, then in our direct we should probably start getting
right into what was the first investigation about.
Whether he was improperly paid by a campaign fund for
providing security services when he wasn't really a security
guard and didn't have any security company.
Oh, so he lied about not having a security company.
And then you found -- and the way that you discovered that lie
was because the only company that you could find was a moving
business; is that right?
And so I'm just saying, that's why I was saying we
were going to just keep it -- at bottom -- I don't think
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that -- and it also sounded like Mr. Gelfand wanted to compare
every step that was taken in that investigation to every step
that was taken about the Paycheck Protection Act case to sort
of say, see, you were much more diligent about trying to find
evidence in the first case and much less diligent in the
second.
But again, that's irrelevant. What matters is were
they sloppy here. It's not a comparison. This Court knows all
cases get different levels of attention or investigated in
different ways. If he wants to cross-examine the agents: You
were sloppy, you didn't talk to this person, you didn't get
records from this person, you didn't go here, you didn't go
there, that's fair game. But I don't understand why it's
relevant to compare that to whatever they did in the earlier
investigation. And that just really opens the door to all
those details the Court just said it was trying to avoid but I
understand Mr. Gelfand is wanting to get into.
So this is where I'm very confused on the ruling.
THE COURT: I think I'm confused too now. And the
reason I'm confused is this. Maybe someone can clarify this
for me. You keep saying the investigation didn't go anywhere,
and I think it went somewhere to the extent we're here. So I
guess my question, my question is --
MS. MILLER: The investigation into campaign --
THE COURT: Campaign finances.
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MS. MILLER: I'm sorry, that's what I'm trying to say.
I'm saying details of -- I understand that there's -- we're
calling it one investigation legalistically, Your Honor, but in
fact, beyond the fact that one grew from the other or that they
were conducted by the same agencies, there's no relation.
Right? There's zero relationship between the conduct being
investigated in the campaign fund case and the conduct being
investigated here. So drawing in details about how that one
was investigated and whether it was more comprehensive or
sloppier or whatever else is creating the very side show with
very little, frankly, probative evidence that would be
elicited, that can't be elicited with the traditional means of
crossing about sloppy investigation.
THE COURT: Okay. So, Mr. Gelfand, here's the issue
that I'm having. One is I maintain, as I said, that you can
ask any witness who testifies about their bias. That is black
letter law, and you can do that.
Second, I cannot craft an order that prohibits or
limits you in any way into asking about the testifying
witness's investigation of Mr. Merritts that led to the
evidence that's being introduced against him in court.
However, I think I am confused a little bit about when
we say "the investigation", if we're really talking about one
investigation that might have started with one thing and then
ended up at a different place but it's all one investigation,
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or if we're talking about kind of distinct investigations.
I do think Ms. Miller raises a good point. I am sure
that there are a lot of details of the government's
investigation into alleged campaign finance violations. For
example, she brings up this allegation of a misstatement in
connection with something else that the government wasn't
intending to introduce because it wasn't relevant to the PPP
loan fraud issue that I'm sure you don't want to come in.
So I guess I don't want to necessarily have you
proffer in detail the questions that you want to ask, but I
think I do need some just so I can make a clear ruling --
because it seems like both parties were confused by my prior
ruling -- to make a clear ruling about what is allowable and
what isn't. What is it you want to elicit with respect to the
investigation?
Are you going to get into or are you trying to get
into all the details of what the government investigated
Mr. Merritts for with respect to some of these other criminal
allegations, which would include alleged false statements that
he made? I'm assuming you don't want to go into all of that.
MR. GELFAND: First of all, Your Honor there's good --
I'll back up for a second, because 30,000 feet in the air, I
think the Court hit it on the head. Where the parties perhaps
disagree, but that's one of the reasons we have trials, is that
there was one investigation, not two investigations, and that
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it was an ongoing investigation. The investigation initially
focused on Cori Bush, Cortney Merritts and two other
individuals. We have no interest, no desire, as we have
throughout this litigation, to talk about the two other
individuals. I don't know if that's an ongoing investigation.
It's none of my business. But it has no -- from what I've seen
in the discovery -- and we know the identity of the two other
individuals -- from what I've seen in the discovery, we're not
intending to go there.
The investigation into Cori Bush and Cortney Merritts
ultimately -- it lasted a long time and it ultimately resulted
in the two charges that are currently pending against
Mr. Merritts. And we do intend to get in in broad stokes to
essentially how we got -- as the Court was saying, who
investigated this case, what agencies were involved, when did
it begin, how did we get here. I'm not meaning to be
exhaustive, Your Honor. But how did we get here, how did the
government develop its evidence, what investigative tools did
the government use, who was the government looking into in the
sense of Cori Bush and Cortney Merritts. The investigation
goes back a long time.
There's a disagreement, Your Honor, factually as to
how this PPP loan investigation, so to speak -- I mean, the
government has represented repeatedly their theory of the facts
as to how we got here. Whether that bears out factually at
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trial and cross-examination, time will tell. But as a
practical matter, I think my understanding of the Court's
ruling is consistent with, I think, what the Court's questions
were to Ms. Miller, which is -- we're not going into here's the
27 -- I'm making up numbers. Here's the 27 subpoenas you
issued in regards to the security investigation. That's not
where we're going with that. But I think that treating this as
if there wasn't one investigation that ultimately brings us
here is what really would kind of disable us from representing
our client and putting on a complete defense.
MS. MILLER: Your Honor, I guess my response is I
don't understand -- I really am having trouble with -- and
maybe the Court can make it clearer for me. I don't know. I'm
really struggling with -- let's call it one investigation. One
investigation into two different crimes occurring over two
different time periods involving different conduct and
different evidence, I don't understand the reason that the
investigation into what I'll -- the crime that's not charged is
relevant beyond things like you were unhappy that you didn't
make that and so we shouldn't trust your testimony on the crime
that's charged here because you were just out to get him and so
we shouldn't trust your testimony because you're biased against
him or you're worried about your career or your promotions or
whatever. Or even I guess if Mr. Gelfand wanted to get into it
to say -- he can still make the political argument, you know,
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you were married to Congresswoman Bush. You were during the
first investigation that wasn't charged. You are now. He was
and he is now. And gee, Mr. Agent, you went after him the
first time because of that and then you were upset and you did
that because of political bias and now you're doing -- and then
when you couldn't do that because of your political bias, you
went after him again. But again, this is just about whether
the agent has a political bias or a corruption -- like corrupt
intent in their testimony. And I get that.
In terms of sloppiness of the investigation, so to
speak, the sloppiness that matters for this jury, the
sloppiness that is relevant is what steps were or were not
taken with respect to the conduct that is being charged here.
Period.
And as soon as we start getting into anything about
the nature and extent of the investigation that didn't result
in charges, it just opens up a massive can of worms that nobody
wants, except perhaps Mr. Gelfand.
THE COURT: I don't think he wants it. I understand.
So my question is the applications or the way that the
government discovered the alleged PPP loan fraud, right, that
was in the course of this other -- whether it's the earlier
stage of investigation --
MS. MILLER: The other conduct that was being
investigated. In connection with the other conduct that was
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being investigated, how about that?
THE COURT: Yeah. So I don't know that the
nitty-gritty of the nature of the earlier investigation is
relevant, but what would be -- I cannot preclude the defense
have asking questions about how the government obtained the
very evidence it wants to introduce against Mr. Merritts, and
that might require the jury understanding that it happened in
the course of this other -- what did you call it --
MS. MILLER: We agree about that. The thing is, we're
agreeing about that. We're just saying why does it matter
even -- in other words, what the investigation -- it seems to
us that the fairest ruling to both parties is that conduct has
nothing to do with his guilt or innocence in the charged
conduct, and all the other avenues of political bias or
sloppiness of investigation are wholly testable without
reference to the details of the investigation that didn't
result in charges. Whereas identifying that investigation and
what it was about, that immediately starts to imply issues that
aren't -- that the Court has already deemed are impermissible
to get into and to open the possibility of the government then
needing to rebut details. Because I can promise that the way
the questions that are asked on cross-examination won't reflect
the government's position about how that investigation was
conducted or why it was conducted or what led to that
investigation or how thorough it was or what the evidence in it
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showed.
So in order to avoid all of that is why we were going
to just lead with in connection with an unrelated investigation
involving different -- we weren't even going to suggest he was
a subject. We were even willing to go so far as to, if the
Court ordered us, find a way to say -- imply that he wasn't,
that it had nothing to do with it. But I think that the
irrelevance of that investigation is a much fairer way to --
like keeping that investigation out avoids the side show and
does not impermissibly keep Mr. Gelfand from exploring what he
needs to.
If I were investigating a murder that you committed
and conducted a search warrant on your house and found a ton of
drugs under the sofa, and I then prosecuted you for the drugs
under the sofa and then as the government I came forward and
said, Your Honor, I just have to put on evidence that what we
were investigating him before was this murder, the Court would
say, are you out of your mind. And that's exactly the ruling
that I'm asking for here in reverse.
THE COURT: I was thinking about the same example. I
agree with that completely. The question is -- it's really
hard to do this in the abstract.
I agree that if in the hypothetical you gave you could
sanitize it. You would have to explain how the officers found
the drugs and you could simply say officers were executing
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search warrant and found X, Y, Z.
MS. MILLER: That's what I'm saying. We don't even
have to mention the other case. We were investigating an
unrelated case and his financial records became an issue in
that case. Period. Or some other way. I'm certainly open to
language.
THE COURT: I understand that. Let me hear from you,
Mr. Gelfand.
Again, I think we're all on the same page about what
in theory a person can do in attack and bring up. Again, it's
really hard in the abstract. I'm just going to ask you
directly: Are you intending to get into or do you understand
my ruling to permit you to ask the testifying witnesses
questions about their investigation of Mr. Merritts allegedly
receiving these security payments?
MR. GELFAND: In broad strokes, yes.
THE COURT: What does that mean?
MR. GELFAND: That for well over a year before you
even saw bank records from Navy Federal Credit Union, which are
the bank records, Your Honor, that are relevant to this case,
to the origin of the so-called -- this part of the
investigation, that you were engaged in a federal
investigation, it involved X agencies, it involved X agents,
that that investigation was looking into the conduct of
Mr. Merritts and Ms. Bush, that you knew that, you were looking
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into that.
I don't want to handcuff myself right now, but I'm
trying to answer the Court's question. I don't intend to get
into whether or not Mr. Merritts had a security company. I
mean, I will tell you -- I don't want to mislead the Court.
This is separate and apart from if we get into evidence about
Mr. Merritts' background that I believe is relevant to criminal
intent, you know, evidence of what he has done professionally
and by way of education and all that will come in. That's a
different question than the Court's asking.
THE COURT: So Ms. Miller, what's wrong with what
Mr. Gelfand just said? This is not a selective prosecution
issue. This is not a jury nullification issue, but he wants to
make the argument that this government has been -- there's some
sort of animus. These investigators have it out for Mr.
Merritts and they have for a long time. And if that's what he
wants to -- if that's his theory, I can't provide --
MS. MILLER: For that purpose, Your Honor, the fact
that the investigation was into his wife is irrelevant. And
the nature of the charges being investigated.
THE COURT: Part of his theory is that the reason -- I
mean, they wouldn't be biased against Mr. Merritts', according
to the defense, but for the fact that he's married to Ms. Bush.
That's what they're saying.
MS. MILLER: That's a matter of her being a topic --
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okay, so you were investigating her. You were investigating
her for political reasons. And they're going to say, no. And
then he's going to say, well, it was about politics and the
fact that it involved campaign funds; is that right.
Well, campaign funds are naturally a part of politics,
so, yes.
And you came after her because you hate outspoken
Democratic Congresswoman, right?
No, not true.
Okay.
Now nothing's established.
THE COURT: I don't know that those are going to be
his questions. What I'm saying is, look, I understand and I'm
sorry I haven't been as clear. I share the concerns and will
be vigilant about making -- I don't think Mr. Gelfand is -- I
think he understands what's permissible. This is not going to
turn into a mini trial about the investigation into Cori Bush.
This is not going to be -- there's not going to be any
suggestion that although the government has proven this case
beyond a reasonable doubt, wink and nod, disregard that because
this is not a big deal, this is all just political. That can't
happen. And I appreciate the government's concern about that.
I share that concern. I've ruled that way.
It is a relevant part of his theory who his wife is
because the defense wants to ask the testifying witnesses about
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their bias against -- they're not biased against -- according
to the --
MS. MILLER: We don't object to that.
THE COURT: That requires him to get out who she is in
broad strokes and that he's married to her. And he just said
at a very high level, this started when you were looking into
Ms. Bush and Mr. Merritts, and then I expect the questions to
focus on Mr. Merritts from there. I don't want this to be very
detailed about what happened with Ms. Bush that's unrelated to
why Mr. Merritts is in court.
And I agree with you that a lot of the details of
crimes that were investigated that ended up not being pursued
seem largely irrelevant. But where there is financial
information that was obtained and Mr. Gelfand wants to ask
questions about how it was obtained and you didn't talk to this
person, you didn't talk to that person, or you hate
Mr. Merritts and you've hated him for a long time and you've
been out to get him, that seems all fair game. And again --
MS. MILLER: Your Honor --
THE COURT: It's really hard for me to draw -- short
of me writing the examination and telling Mr. Gelfand what he
can't do, I have to do this in broad strokes. So I'm sorry
irrelevant's confusing but --
MS. MILLER: I understand, Your Honor, but the way the
Court just gave the example didn't actually use the topic of
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what was being investigated. Which, again, saying who was
being investigated, sure. And that it didn't result in
charges, and so therefore the agents are bias because they were
investigating her because she's a Democratic congresswoman and
when they couldn't make that charge against her and him, they
decided to go for this charge so they're not trustworthy, their
testimony, because they have an improper motive in testifying.
I get it. It's like corruption bias. But why does even the
type of charge at all matter? And I say that, Your Honor,
because I don't think the jury is entitled to really know what
that investigation was about. I don't see why that even --
THE COURT: Okay. Let me pose that direct question,
because it seems like that's the only area of confusion.
So Mr. Gelfand, what Ms. Miller and what I want to
know so I can clearly rule on it is to do everything that I
have agreed that is permissible for you to do and to do
everything you think you need to do to prove your -- not prove
your case, sorry, to poke holes in the government's case and
establish that they haven't proven their case, why is it
necessary or is it necessary for you to inform the jury that
initially the government was investigating Mr. Merritts and/or
Ms. Bush for campaign fund violations, false statements and
falsification of records?
MR. GELFAND: Because campaign funds are innately
political; whereas if they were hypothetically investigating
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Mr. Merritts and Ms. Bush for a bank robbery in Nevada two
years earlier, that's a qualitatively different question. So I
don't think that the nuanced details beyond that matter that
much, but the idea that it was directly related to Cori Bush's
congressional campaign is relevant.
THE COURT: So beyond just making the point that will
go to questions of political animus, that's the only reason why
you want to let the jury know that at the start that the
government was looking into Mr. Merritts for political-related
offenses?
MR. GELFAND: Yes. I don't know that I'll call it
offenses, but allegations.
THE COURT: Violations. Political-related violations.
Ms. Miller, you actually had given this as an example
when you were talking earlier about how that theory could spin
off. That's all he wants to do with it. He doesn't want to
get into the details, he wants the jury to know about the
political nature of the investigator's work in the case.
MS. MILLER: Your Honor, so we are going to get into
the fact that that's a corruption investigation, fine. But
then what I suspect based on the way, at least, Mr. Gelfand
argued it previously in this hearing, is that he's going to say
and your investigation showed they were innocent, didn't it.
And I just think he shouldn't be able to ask that. That's what
he said to this Court.
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THE COURT: Mr. Gelfand, are you going to ask if that
investigation showed they were innocent?
MR. GELFAND: I wasn't intending to unless there was a
suggestion by the government --
MS. MILLER: Is the outcome of that investigation at
all going to be a subject of questioning? That charges weren't
brought and that's --
MR. GELFAND: Judge, I think what I would say is I
think that we all have a clear understanding of at least where
we should all aim for the lens to be, and I think the Court can
and will make contemporaneous objections if necessary. I'm not
trying to hide the ball from anyone.
THE COURT: Here's what I will say because I'm not --
I think in broad strokes I will permit the defense from asking
a question to testifying witnesses about the political nature
of the matters for which Mr. Merritts was being investigated,
but not the details and the nitty-gritty of that investigation
beyond anything you need to make the argument about political
bias, which we understood.
In terms of any further questions, I think I'm going
to have to address that on a case-by-case basis. Right now I
don't see in the abstract why it would be relevant about what
was or wasn't brought in that investigation. Certainly if I
would allow you to ask that question and you asked the question
that implied that nothing was found, you know, as I said, that
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would open the door to the government putting on everything
that was found. I don't know if the defense wants to open that
door. But I think the best way to do that is if he asks that
question, you object. And then I'll have the whole context of
the full direct examination up to that point and I will be able
to judge very clearly whether or not that is relevant or
whether it goes into irrelevant, prejudicial, inappropriate
lines of questioning.
MS. MILLER: Sorry, I was just going to ask, given the
Court's ruling just now, is the defense -- is the Court
permitting the defense to open on saying that this was
politically motivated because of that -- because of how the
investigation came about?
THE COURT: Look, if that's his theory of the case and
he has a basis to believe that's what the evidence will show,
he can tell the jury what the evidence will show. At the end
of the day there's -- the jury will be instructed that
counsel's questions are not evidence. I'm not going to permit
questions that are inappropriate or irrelevant. He can open on
what his theory is on the case, yes.
So I'm sorry this is confusing. Again, it's hard for
me to do this in the abstract, but I think we've delineated
clear lines as best as we can. Otherwise, I'm going to have to
take it question by question.
To be clear, Mr. Merritts can interrogate witnesses
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about their political biases. Mr. Merritts can interrogate
witnesses about the evidence that was obtained against him
that's being introduced and the investigation of these
offenses. Whether it should be credited or not is an
appropriate topic. There is maybe a dispute about whether the
campaign finance violations, false statements, et cetera, were
a separate investigation or full investigation. Regardless,
Mr. Gelfand did not intend to give details of that. I do think
that absent some further proffer, I'm not seeing the relevance
of the details of that aspect of the investigation if it was
the same investigation, because I think it would require the
government then to go into detail that I think could be not
only prejudicial but unnecessary and result in a mini trial on
something completely different.
Notwithstanding that, Mr. Gelfand has indicated the
political bias of the individuals involved in the investigation
as part of his theory, so I will permit him to elicit that the
investigation involved political violations, political views,
whatever. But beyond at least the details beyond (inaudible
due to background audio disruption).
DEPUTY CLERK: I'm sorry, Your Honor, Stacy's not --
if you're not talking, can you please just mute. There seems
to be some kind of feedback and it's not letting the court
reporter --
THE COURT: Yeah, everyone mute. Okay.
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DEPUTY CLERK: Thank you.
THE COURT: So again, that's as clear of a line I can
do at the outset without asking Mr. Gelfand to tell me question
by question what he intends no ask, which I don't intend to do.
I don't think this government is asking me to do that. I think
I'm going to have to take it question by question. Those are
the broad strokes of my ruling.
Again, getting out in the broad strokes that the
investigation began looking into certain political-related
things, yes. The details of what those were, what was found,
what wasn't found, how that proceeded does not feel relevant
absent further proffer.
So again, Mr. Gelfand, if you get to trial, if you
think the government has done something or you're prepared now
with further preparation to make a proffer as to why anything
beyond what I've said is appropriate is permissible, you'll
raise that before you do it so I can hear from everyone.
It sounds we're in agreement that the details of these
unrelated offenses, violations, whatever you want to call them,
for campaign funds for personal use, campaign expenditures,
falsification of records, false statements, et cetera, are not
feeling particularly relevant beyond the fact that the defense
wants to elicit that this started from a political place.
Ms. Miller, is there anything else? I hope that
clarifies it. I'm sorry if it's not more satisfying. I wish I
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had everyone's examinations in advance and we could kind of
prescreen the trial, but I think I'm going to have to do this
question by question. I invite you, and I'm sure you will,
object if something comes up and it's not permissible.
MS. MILLER: Your Honor, could I ask the Court's
indulgence just to have a couple of minutes to discuss this
with the other two lawyers who are on the phone here?
THE COURT: Sure.
MS. MILLER: I think that they may have some
additional issues, but I'm not sure that I totally understand
them.
THE COURT: Do they want to speak? I don't mind if
you guys tag-team.
MS. MILLER: Brian or Josh, would you like to speak?
THE COURT: If you want to take a minute to confer, we
can do that. We don't have to be formal about this. Tell me
what you prefer.
MR. KELLY: Your Honor, this is Brian Kelly. Thank
you.
THE COURT: Yes.
MR. KELLY: So one of the things that was just
discussed and Mr. Gelfand, I think if I'm understanding, said
that he was not intending to get into contradicts what his
colleagues said at the pretrial hearing, when the defense's
position at that hearing was that details, including the
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 103 of 122
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outcome of the other investigation or the campaign funds piece
of the investigation, would be relevant because they would be
able to cross-examine the agents on such topics as how many
resources were put into this investigation, into the campaign
funds piece, over how long, how many agents were involved, and
you all weren't able to get charges as part of that
investigation, weren't you? And it's not good for your career
if you can't get charges in an investigation, is it? And it
would have been egg on your face if you had come up empty
handed. And you didn't get charges in that case, did you? And
you couldn't get charges against my client or his wife as to
the campaign funds investigation.
So isn't it true that then you went and cherry picked
this evidence -- I'm putting on my defense hat right now, Your
Honor, but you went and got this evidence about that you've
trumped up for these PPP funds and so your investigation was
biased and you're biased.
I mean, that is literally what was said at the
pretrial conference.
THE COURT: Okay. Thank you for reminding me, Mr.
Kelly. Let me say this. Would that, in your view, be
impermissible? It might open the door to lots of things. But
the way you've done that very excellent cross-examination
sounds like it's pretty targeted to bias. Do you think if
that's their theory I can tell him he can't do that?
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MR. KELLY: No, Your Honor. I think you were going to
allow them to do that. But I think our understanding of your
prior ruling and I think possibly the defense's understanding,
although I can't be sure, was that the details and nature of
necessarily who was sort of -- I don't want to use the word
"target" but the focus of that investigation or what was being
investigated didn't need to come in to get out this sort of
bias.
THE COURT: I agree with that.
MR. KELLY: That the details don't matter. But now
we're getting closer. Frankly, Your Honor, it seems like --
we're concerned that we're over the fine line that Your Honor
has I think put your finger on.
We're now in the position where it's not just some
undefined perhaps unrelated investigation in which his finances
were relevant and they were investigating a crime and that
didn't lead to anything and perhaps Mr. Merritts was -- his
conduct was at issue in that investigation, by no means would
that require them to say and Ms. Bush was under investigation
and it was a political investigation and it was the public
corruption squad investigating that case.
But now that we've added that piece into this and now
they're allowed to then do the additional sort of cross that I
just came up with, it absolutely looks like a selective
prosecution argument: You investigated my client and his wife
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for a political crime. You weren't able to get charges for
that political crime and so now you're trying to hang this
around his neck.
And that absolutely seems like a selective, vindictive
prosecution argument that Your Honor has already said is off
limits. We certainly understood from your prior order, which I
think I now understand we didn't fully understand, but we have
now added not just a sort of procedural fact that there was an
investigation but now it is this political investigation in
which his wife, Cori Bush, who was a member of the Squad and
outspoken blah, blah, blah, that absolutely -- this is now a
selective prosecution argument.
And, Your Honor, I think that if they do get into --
you said "open the door" a couple of times, and I think perhaps
your ruling would necessarily open the door. If they are
allowed to get into the cross of the investigation of Cori Bush
and Mr. Merritts did not lead to charges in the campaign funds
investigation, then we absolutely would, I think, be required
to, frankly, possibly even in our case in chief on direct
examination, elicit testimony before cross-examination.
Because at this point, Your Honor, if we do direct examination
of the investigating agents and we try to sort of sanitize
things and not get into all of this, and then Mr. Gelfand gets
up on cross and elicits all of this testimony, that would not
be a good look for the prosecution, Your Honor. Frankly, I
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think at this point we would almost be looking at having to put
on an entirely additional case. Not entirely additional but
certainly additional evidence that we had not contemplated
putting in.
THE COURT: So let me just say this. In terms of what
you reminded me about the pretrial hearing and the kind of mock
cross you just did, which was a very good bias cross that I
don't think I could prohibit a defendant from doing, I do think
that -- again, Mr. Gelfand, if you don't intend to do that, I
think you should say that. Because I do think that if you're
saying that is a line you might take, I think it's fair game
for the government to explain in ways that we'll have to
discuss that that's not what's going on here. So that's one.
Two, Mr. Kelly, I think the issue that I think makes
this difficult and when I say that there's a fine line is the
way you phrased the theory does sound like selective
prosecution. The idea that you were targeting me, you tried to
pin one thing on me, but you couldn't so now you're pinning
this on me, that does sound like selective prosecution.
On the flip side a argument that you're targeting me,
you have animus against me, and so, jury, you should not credit
this person who's testifying against Mr. Merritts, that is
permissible. And that's the fine line.
One line presumes that even if you believe everything
that every witness has said you should nonetheless discount
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that because this is a small amount and we're only here because
of who he is, that's not permissible. But it is permissible to
ask the jury to consider any personal interest that any witness
has and to use that to assess that witness's credibility.
So can you just respond to that? Because, again, I
think it's a fine line. It may not be so much the question but
how it's argued. It would be impermissible to say this is a
petty case. This is only $20,000. We wouldn't even be here if
he wasn't married to a congresswoman, so jury, you should
acquit. That's not appropriate.
But don't believe or doubt the quality of the
investigation, doubt the people that are testifying because
they have a personal interest or they're motivated by something
and you should consider that in assessing their credibility, I
mean, that seems like textbook credibility.
So maybe you can help me understand what line you
think I could draw that would address that other than clearly
saying one is appropriate and one isn't. I mean, you
understand where I'm coming from?
MR. KELLY: Yes, absolutely, Your Honor. I think
Mr. Gelfand has said, or perhaps it was Your Honor has said a
few times they would be allowed to sort of poke holes in the
investigation, right?
THE COURT: Yes.
MR. KELLY: And I think our understanding of that had
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all along been perhaps there's a single grand jury number for
all of this. Right? But there are separate investigations in
the sense that it's -- the only overlap between the two,
frankly, is Mr. Merritts. It's completely separate conduct.
It's completely separate timelines. It's completely separate
potential crimes that are being investigated.
And so to the extent that they are going to be allowed
to now, as we understand it, elicit testimony or even open on
the fact that this was somehow a politically motivated
investigation of Mr. Merritts and his wife, that somehow that
investigation possibly was sloppy or certainly that
investigation did not lead to charges as bias cross, I just
don't know how the government puts on our case without having
to be --
MS. MILLER: Can I ask -- sorry -- a question of
clarification on that? Is the Court saying that the defense
can open and say this was a politically motivated prosecution,
or is the Court saying the defense can open and say, you will
see that the witnesses have political motivations --
THE COURT: I think it's -- again, I don't think the
motivation of the prosecution at this juncture is irrelevant
for the jury's assessment of whether the government has proven
the charges beyond a reasonable doubt. So it would not be
appropriate to tell the jury this is a politically motivated
prosecution so the only reason -- the government doesn't bring
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these case but they're doing it here because of who Mr.
Merritts is. It has to be tied to the evidence in the case.
So if he wants to say don't trust these witnesses
because they're biased against Mr. Merritts, they had it out
for him because of him and who he's married to, again, I don't
see how I can prohibit a defendant from making that argument
and trying to elicit that evidence and asking the jury to make
those kind of credibility findings.
Again, I understand this is a little bit sloppy
because everything is intertwined, but it touches on issues of
the defendant presenting a defense that relates to questions of
bias and the investigation. And again, I don't see how I can
prohibit him from doing that.
The line that we drew that I thought we were in
agreement of is the details of unrelated -- I'll call them
offenses that he's not charged with in this case seem
irrelevant and that you can elicit these points and make all
these arguments without getting into details of that beyond
what we discussed.
But, Mr. Gelfand, if you're going to do that, if
you're going to suggest that -- don't trust them because
they're just out to get him because they don't like him and
that's evidenced by the fact that they were after him for years
and couldn't find anything, so essentially fabricated this
evidence or fudged this evidence or exaggerated this evidence,
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I mean, you understand the government can meet that testimony
and anticipate it and put on evidence to the contrary, right?
MR. GELFAND: I do understand, Your Honor. I think
that -- again, I don't want to beat a dead horse. I think the
elephant in the room -- and there's a problem here. I'm not
trying to belabor it -- is that this government's view as
Mr. Kelly just said is there's essentially -- I don't mean this
in a term of art, but essentially two separate substantive
investigations.
I'll just give the Court just by way of example, I'm
not meaning to be exhaustive, the same month they claim that
they found the PPP loan transactions in the Navy Federal Credit
Union records, there was a grand jury subpoena issued to Cori
Bush for Congress. So it's revisionist history, for lack of a
better way to put it. It's inaccurate to say that there's
different time periods. There was an investigation that was
ongoing. They're claiming they're investigating Cortney
Merritts, but they're actually subpoenaing, literally, Cori
Bush for Congress.
MS. MILLER: I'm sorry, we're saying that the conduct
is from different time periods, not the investigation was
different --
MR. GELFAND: No, but my point is, as Your Honor has
stated correctly in our view based on binding precedent, we're
going after the credibility of the investigation and the
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investigators, and they're happening at the same time. So
that's where there's a major elephant in the room here, which
we keep saying. And it's been frustrating, candidly, from the
defense standpoint.
The government keeps saying we're trying to conflate
some old investigation into some new investigation. They're
literally simultaneously saying, okay, we're going to now go
after Cortney Merritts and subpoena Cori Bush for Congress.
THE COURT: I understand that. I guess the difficult
part is even if they were happening at the same time, because
they're dealing with different subjects, there's different
questions and testimony and evidence that might be relevant to
one versus the other. So I guess getting into the weeds of any
alleged campaign finance violations doesn't seem relevant to
Mr. Merritts' PPP loan case.
And I thought that you were in agreement with that
when you said you were not intending to get into the weeds of
some of the other subjects that were -- subjects meaning topics
of investigation. The investigation might have been sprawling
and involved different topics and that your examination was
going to be limited to those relevant to Mr. Merritts, which
could, as I've indicated, go to the general sloppiness of the
investigator and why the jury shouldn't credit the
investigation that was done that led to these charges.
I don't know how I can say that another way. I think
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the problem is I don't know, I never in a case get all of the
evidence. You all know the case better than me. I don't know
what kind of landmine I might be walking into in this ruling.
I just know that I can't prohibit the defense from questioning
witnesses about their individual biases that might have
impacted how they investigated this case and might bear on
their credibility.
But I want to be clear, Mr. Gelfand, my understanding
is that you're not getting into -- if you think the details are
relevant, you should tell me so that I could rule on it and the
government can be heard. My understanding is for what we're
talking about, you're not trying to get into the details of
what the campaign finance investigation entailed, what was
uncovered, what wasn't uncovered, what the false statements --
that they were investigating false statements, what they were
looking into, what they did, what they didn't do. You're not
getting into all that? You're not trying to get into all that?
MR. GELFAND: I think that's accurate, Your Honor.
Again, I don't think it's encompassed with what you were saying
but investigator's investigative activities, for example, the
dates certain subpoenas were served, who they interviewed, as
it relates to the overlap between Cori Bush, personally, and
Cortney Merritts I believe does go to the credibility and
political bias of investigation and the investigators.
That's different from talking about was the security
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payment made on January 23rd -- I'm making up dates, whatever
it was -- which was very, very different.
I think some of this -- and this is the nature in the
same way that the Court is obviously limited in not knowing
everything, I don't know what these witnesses are going to say
on direct or on cross. And I think that we all know where the
Court is attempting to draw these lines.
THE COURT: Yeah, it's just hard. I have a concern
that I'm not stating it clearly and I don't want to mislead the
parties. So I don't know what else I could say to make it more
clear other than I've articulated the ruling and that I think
I'm just going to have to take it question by question. And
anticipating what your proffer is, the government is going to
put on its direct evidence to meet your anticipated theory so
they can do so in the first instance and pull the sting out of
whatever they anticipate is coming on cross, and so that's fair
game.
MR. GELFAND: I think that the Court has made it
pretty clear.
THE COURT: I'm trying. I'm trying. Like I said, I
maintain that there may be a fine line, and I will be very
vigilant in making sure that line is not crossed.
Okay. Now that I have resolved -- anything else that
we need to -- oh, Mr. Rothstein, sorry. I can't hear you. Are
you on mute or is your speaker not connected?
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MS. MILLER: I believe he's going to Mr. Kelly's
office, if I had to take a guess.
(Pause in the proceedings)
MR. ROTHSTEIN: Judge sorry, good to see you, Your
Honor.
Two questions on my part. One is I keep hearing the
phrase "political bias" being used. But political bias would
be the agent is a Republican and the target is a -- the person
being prosecuted is a Democrat. And as a result of their
political beliefs, they cannot be trusted because they are
against the defendant because he's a Democrat.
THE COURT: I hope it's more nuanced than that. That
doesn't sound like a very compelling theory, but go ahead.
MR. ROTHSTEIN: Yes, Your Honor. But saying that the
agent has a political bias is misleading to the jury because it
leads them to believe that because of the agent's political
beliefs, they cannot be trusted. So I think it is one thing to
say the agent is biased because it's good for their career if
they convict somebody, it's not good for their career if they
investigate and ultimately it doesn't result in a prosecution.
That's totally fair game for cross-examination. But I think
using the phrase political bias is not correct. That's my
first question or my first point of clarification.
And the second is, I've heard Your Honor say a couple
of times "if the defense opens the door." But the reason that
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we moved in limine and filed these motions is to have the Court
rule that they cannot open the door such that we would have to
put on additional evidence about the initial -- the details of
the initial investigation. So I just want to make sure it's
clear that we're not looking for a well -- there are some
circumstance where I can see the government wanting this to be
the case, but we are not looking for it to be the case that,
oh, the defense opened the door and now we want to shove in
everything from the first investigation. We're trying to be
very clear that we want that information other than what Your
Honor specifically has permitted to not come in such that we
don't have to bring in the other security guards, the people --
right.
So those are the two points that I just wanted some
clarity on.
THE COURT: Let me start with the second. I
completely agree. That's what I tried to say just now. And I
think I got Mr. Gelfand's agreement that he's not seeking to
get into the details of the -- I'm not going to call it another
investigation because that's a factual dispute. He's not
trying to get into the details of other topics of the
investigation that are not at issue in this case.
But I also said that he may or may not go into this
but it is fair for you based on the proffer to craft your
directs anticipating that he's going to attack animus of the
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witnesses, the investigation and even what Mr. Kelly had
proffered earlier about you were trying to just pin something
on him and you didn't want to have egg on your -- whatever the
beautiful bias cross that Mr. Kelly mocked out for us. So you
can anticipate that in your direct now because you have a good
faith basis to believe that that will be a topic of trial
unless Mr. Gelfand confirms that he's not going to go into
that, which he hasn't done.
So I am not anticipating -- I think I've ruled it with
understanding from Mr. Gelfand that he's not trying to go into
that. So that's my ruling.
Again, things happen at trial. If something happens
and Mr. Gelfand thinks he now has to go into it for some
reason, we will deal with it when it comes up. But I agree
that you sought pretrial clarification so that -- I thought
Mr. Kelly was right, that you want to know what to do in your
direct and present your strongest case in direct and not just
be scrambling to meet the defense testimony after the fact.
So I hope we're on the same page there.
MR. ROTHSTEIN: Yeah.
THE COURT: Okay. Yeah. With respect to political
bias, let me just say this. I have no idea who these witnesses
are, what their political affiliations are, what their beliefs
are. But I think in general I don't think it's sufficient just
to say that because someone is of a different political party,
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you shouldn't believe them. And we can tweak the credibility
instruction or talk about specific instructions if we think
necessary to make this point. But I do think that if the
defense wants to ask questions, whether it's political animus,
whether he has reason to think these investigators don't like
for whatever reason Mr. Merritts because of his affiliation
with Ms. Bush, I can't prohibit him from confronting the
witnesses and asking them whether or not they have any personal
bias because of Mr. Merritts and who he's affiliated with.
Again, I don't want to suggest in the jury that they
should -- if there are certain witnesses who are in opposite
political parties than Mr. Merritts that that's a basis in and
of itself for discounting their testimony. But I think the
argument will be a little bit more nuanced than that.
Go ahead.
MR. ROTHSTEIN: Your Honor, sorry. On that point,
defense has to have a good faith basis to ask that question.
So it would be one thing if they were to get, like, the
campaign donations of an agent and show that they donated to an
adversary of Ms. Bush or something like that. But to get up
there and just sort of lodge these questions, which they know
that the agent is not going to give the affirmative answer they
want and just using the questions to inject selective
prosecution, vindictive prosecution, is not -- Mr. Gelfand
keeps saying, well, I don't know what are were going to say. I
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mean, we have a pretty good idea of what they are going to say
on those questions. And I don't think that using questions as
a way to inject impermissible arguments into the trial is
appropriate. And I think that's is big concern of mine.
THE COURT: No, I agree, I agree 100 percent. I
think, again, because I don't know what questions Mr. Gelfand
is going to ask. I'm just opining about what the appropriate
areas of inquiry are in general, in terms of what's relevant in
any case, which is bias. You do have to have a good faith
basis to ask the questions. I think if there is a question
posed that is inappropriate, I will deal with that before the
witness answers it.
If it becomes a pattern of asking questions that I
think are designed only to get the question before the jury, I
will not allow that and I will contemporaneously strike the
question and instruct the jury that the questions of counsel
aren't evidence.
But again, I suspect that Mr. Gelfand is an
experienced trial attorney who understands what the basis for
the question has to be. I'm not going no get into detail
line-by-line of what he intends to ask at this juncture. But
your concern is a fair one and I assure you I will be vigilant
in making sure that that does not occur. I'm not suggesting
that it will occur because I think Mr. Gelfand -- if it does,
we'll deal with it.
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Again, my apologies that my prior order wasn't clear.
I've done my best to make it as clear as possible now, the best
I can in the abstract without having the details. But I think
we've landed at a place where hopefully everyone understands
the contours of my order. And beyond that, we'll just have to
deal with it question by question. And quite frankly, once
we're in the trial and things are not hypothetical anymore, if
I have to make more categorical carve outs or clarifications, I
can do so. But hopefully what I've done so far is sufficient
for your preparation.
Okay. With that, now that I've resolved all the
pending motions, I'm assuming, Mr. Gelfand, the motion to
continue trial is now moot?
MR. GELFAND: Based on the Court's rulings, it is,
Your Honor.
THE COURT: Okay. So we will proceed with trial on
Monday.
MR. GELFAND: What time does the Court want to start
on Monday?
THE COURT: 9:30.
MR. GELFAND: Understood.
THE COURT: Thank you for being available at short
notice. This was a long hearing. I have appreciate everyone's
advocacy, and if there's anything else that comes up, I'm here
so just let me know. But otherwise, I will see everyone Monday
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 120 of 122
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at 9:30.
Thank you. Have a great day.
(Proceedings concluded at 4:36 PM)
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Case 1:25-cr-00076-JMC Document 61 Filed 01/09/26 Page 121 of 122
C E R T I F I C A T E
I, Stacy Johns, certify that the foregoing is an
accurate transcription of the proceedings in the
above-entitled matter.
/s/ Stacy Johns Date: January 8, 2026
Stacy Johns, RPR, RCR
Official Court Reporter
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