Court filing

Motion to Reconsider — Selective Prosecution (Cori Bush) — U.S. v. Merritts

No. 1:25-cr-00076-JMC · Doc. 48 · Docket on CourtListener

Full text

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Furthermore, the decision to investigate and prosecute Merritts was motivated entirely by the fact that

Merritts was married to Congresswoman Bush and, even more, was working on the Democratic elected

official’s campaign. In an internal IRS memorandum hidden from the defense and from this Court during the

litigation of the selective prosecution motion to dismiss and the motions in limine regarding Congresswoman

Bush, IRS-CI stated the only reason this investigation was “impactful” was because “Merritts is the husband

of Congresswoman Cori Bush” and that this case would garner “[m]edia attention since he is the husband of

a congresswoman”:

As set out in more detail herein, the truth of the matter is: Merritts was the target of the initial campaign

funds investigation and he was targeted precisely because he is married to Congresswoman Bush and worked

on her campaign.

I. A Motion for Reconsider is Proper Under These Circumstances

“Although the Federal Rules do not specifically provide for motions for reconsideration in criminal

cases, the Supreme Court has recognized, in dicta, the utility of such motions.” United States v. Ferguson,

574 F. Supp. 2d 111, 113 (D.D.C. 2008) (citing United States v. Dieter, 429 U.S. 6, 8 (1976)). “This Court

has adopted such a philosophy by regularly entertaining motions for reconsideration in a criminal context,

applying the analogous Federal Rules of Civil Procedure.” In re Extradition of Liuksila, 133 F. Supp. 3d 249,

255 (D.D.C. 2016); see also Tyson v. District of Columbia, CV 20-1450 (RC), 2021 WL 4860685, at *4

(D.D.C. Oct. 19, 2021) (considering and denying defendant’s motion for reconsideration of the court’s prior

denial of a motion to dismiss); United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (listing cases

applying standards from Federal Rules of Civil Procedure in reconsideration context).

The Court’s decision to deny Defendant Merritts’ initial Motion to Dismiss was an interlocutory

decision. As it has before, the Court should reconsider an interlocutory decision “as justice requires.” See,

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e.g., Coulibaly v. Tillerson, 278 F. Supp. 3d 294, 301 (D.D.C. 2017); United States v. Dynamic Visions, Inc.,

321 F.R.D. 14, 17 (D.D.C. 2017); Sunia, 643 F. Supp. 2d at 60–61; Singh v. George Washington Univ., 383

F. Supp. 2d 99, 101 (D.D.C. 2005). In this case, it is clear “that some harm, legal or at least tangible, would

flow from a denial of reconsideration.” Dynamic Visions, Inc., 321 F.R.D. at 17 (internal quotation marks

omitted) (quoting Cobell v. Norton, 355 F. Supp. 2d 531, 540 (D.D.C. 2005)).

“In general, a court will grant a motion for reconsideration of an interlocutory order only when the

movant demonstrates: ‘(1) an intervening change in the law; (2) the discovery of new evidence not previously

available; or (3) a clear error in the first order.’” Zeigler v. Potter, 555 F. Supp. 2d 126, 129 (D.D.C. 2008)

(quoting Keystone Tobacco Co., Inc. v. U.S. Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003)), aff’d, No. 09-

5349, 2010 WL 1632965 (D.C. Cir. Apr. 1, 2010). Justice may also require reconsideration “‘where a

controlling or significant change in the law or facts has occurred since the submission of the issue to the

court.’” McLaughlin v. Holder, 864 F. Supp. 2d 134, 141 (D.D.C. 2012) (quoting Ficken v. Golden, 696 F.

Supp. 2d 21, 35 (D.D.C. 2010)). However, motions for reconsideration “cannot be used as an opportunity to

reargue facts and theories upon which a court has already ruled, nor as a vehicle for presenting theories or

arguments that could have been advanced earlier.” Estate of Gaither ex rel. Gaither v. District of Columbia,

771 F. Supp. 2d 5, 10 (D.D.C. 2011) (internal quotation marks omitted) (quoting SEC v. Bilzerian, 729 F.

Supp. 2d 9, 14 (D.D.C. 2010)).

Here, reconsideration is warranted because new facts and evidence have come to light since the

Court’s prior ruling on Defendant Merritts’ Motion to Dismiss for Selective Prosecution. These newly

discovered facts could not have been presented with reasonable diligence at the time of the original motion,

and they directly bear on legal analysis that must be conducted by this Court. Under the framework established

in Zeigler and McLaughlin, and as demonstrated below, the emergence of this evidence constitutes a

significant change in the facts before the Court and provides a proper basis for reconsideration. Zeigler, 555

F. Supp. 2d at 129; McLaughlin, 864 F. Supp. 2d at 141.

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II. Despite the Government’s Representations to this Court That Merritts “Was Not a
Target” and “Was Never a Target” of the Campaign Funds Investigation, the U.S.
Attorney’s Office for the District of Columbia Expressly Identified Him as a Target in
a 2023 Letter to IRS-CI

With respect to the first premise—that Cortney Merritts was not a target of the original investigation

targeting Congresswoman Bush—the prosecution has been clear in its representations to this Court. At the

Pretrial Hearing before this Court on December 5, 2025, AUSA Kelly stated: “I just want to be very clear,

Your Honor. The campaign funds investigation, the only target in that case was Ms. Bush. Mr. Merritts was

not a target of that investigation.” (See Tr. at 52-53) (emphasis added). As if that was not clear, AUSA Kelly

further stated: “He [Merritts] was never a target, so this is not a situation where the agents were going after

Mr. Merritts and couldn’t get him on one thing, and so they decided to get him on something else.” (Id. at 53)

(emphasis added). When arguing against the defense’s position, AUSA Kelly characterized the campaign

funds investigation as “an unrelated investigation.” (Id. at 63). And this Court understandably even

incorporated those representations in its own questions and analysis: “Can I hear from defense counsel? One

is, I forgot to ask you your response to the government's argument about the mismatch, meaning, you know,

maybe this would be a closer question if Ms. Bush were the defendant. But because Mr. Merritts was not the

target of the investigation, this idea that, you know, you had to find something, doesn't that suggest that they

would have -- if they were going to kind of pin something on someone, wouldn't they pin it on the target of

their investigation?” (Id. at 63) (emphasis added). And in its Court’s December 18, 2025 MINUTE ORDER,

this Court ruled: “At this juncture, the Court GRANTS the Government's motion to exclude details of the

prior investigation, including the nature of the investigation and the specific allegations at issue. Defendant

filed a very cursory and generic pleading about the relevance of the prior investigation. Absent a further

proffer, Defendant has not suggested to the Court why the details of the nature of the prior investigation

are relevant to assessing the bias of any individual witness.” (emphasis added).

Based on discovery hidden from the defense throughout the litigation of these issues and only

disclosed in December 2025, Cortney Merritts was the target of the campaign funds investigation—and the

U.S. Attorney’s Office for the District of Columbia expressly stated so in a letter to the Special Agent in

Charge of the IRS’s Washington, D.C. field office:
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alleged PPP and EIDL loan fraud was not motivated by his marriage to Congresswoman Bush or by his work

on the campaign of a Democratic candidate, this Court denied the motion to dismiss.

But the newly disclosed documents unambiguously establish an unconstitutional motive—and this is

no doubt just the tip of the iceberg that will be revealed with further discovery to which Merritts is entitled.

On May 1, 2024, the IRS agreed to “participate…in this ongoing investigation.” See Exh. 2 (filed

under seal) (emphasis added). As the defense has always maintained, there were not two separate

investigations: the PPP loan fraud investigation was, in the Government’s own words, part of an “ongoing

investigation” involving Cori Bush, and Merritts was investigated precisely because he was married to

Congresswoman Bush. Indeed, that same day, the lead IRS-CI special agent assigned to this case made it

crystal clear that this investigation involving a “paycheck protection program loan in May 2021” was directly

tied to Merritts’s marriage to Congresswoman Bush. See Exh. 3 (filed under seal).

The special agent’s sole response to the question, “How is the investigation impactful?” was: “Merritts

is the husband of Congresswoman Cori Bush.” (Id.). And the unconstitutional motive to target Merritts based

on political affiliation should make this Court cringe:

This is the opposite of speculation. The direct evidence is that Merritts was targeted because this

investigation, in the eyes of the federal investigators, would garner “[m]edia attention since he is the husband

of a congresswoman.” (See id.) (emphasis added). And as the special agent expressly stated, the decision to

“elevate” this investigation on May 1, 2024—the same day it was opened—was that the “USAO plans to

move forward on PPP Loan fraud against Merritts” and IRS-CI, which was invited to join the investigation

by the U.S. Attorney’s Office for the District of Columbia, did so because the case would generate media

attention solely based on the premise that Merritts was married to a then-sitting member of the U.S. House of

Representatives. Yet the Government repeatedly represented to this Court that this prosecution has nothing to

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do with Congresswoman Bush.

And in the context of how IRS-CI actually operates, the notion that this investigation was “unrelated”

to the campaign funds investigation and to Congresswoman Bush is plainly disingenuous. In most

investigations involving IRS-CI, the chief of IRS-CI does not have to approve the IRS’s involvement. But in

this case, Guy Ficco, who was (and is) the chief of IRS-CI, apparently approved this investigation 1 in an

internal memorandum stating—in direct contrast to the prosecution’s representations to this Court—that this

was “related to a current IRS-CI primary investigation of Cori Bush” (emphasis added); that IRS-CI’s

involvement was at the request of the “United States Attorney’s Office for the District of Columbia and the

Federal Bureau of Investigations” and the request was for IRS-CI “to join in an investigation of Cortney

Merritts and others relating to allegations of paycheck protection program fraud”; and that, “[a]lthough

Merritts himself is not a sensitive subject, his wife is Cori Bush. Bush is a congresswoman from St. Louis.

They were married in February 2023. Merritts currently works for Bush’s campaign.” See Exh. 4 (filed under

seal). As the internal investigative agency memoranda reveal: (1) Merritts and Congresswoman Bush were

both targets of the campaign funds investigation even though the prosecution in this case has expressly

represented otherwise; (2) Merritts was targeted precisely because he was married to Congresswoman Bush

even though the prosecution in this case has expressly represented otherwise; (3) Merritts was targeted because

he was actively working for a Democratic congresswoman’s political campaign even though the prosecution

in this case has expressly represented otherwise; and (4) the reason this case would be “impactful” was because

Merritts’s marriage to Congresswoman Bush would garner media attention for the Government. Merritts

would not be standing before this Court as a defendant if he were not married to Congresswoman Bush. And

the evidence of the unconstitutional motive is as powerful as it is wrong.

What is particularly critical is that it is black letter law that political affiliation and political

employment cannot constitutionally factor into the decision to investigate or prosecute somebody for a crime.

While a “presumption of regularity applies to prosecutorial decisions . . . the Government cannot base its

decision to prosecute on some unjustifiable standard, such as a defendant’s ‘political beliefs.’” United States

1
The Government has not provided the signed copy of the memorandum.
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v. Judd, 579 F. Supp. 3d 1, 4 (D.D.C. 2021) (quoting Branch Ministries v. Rossotti, 40 F. Supp. 2d 15, 21

(D.D.C. 1999), aff’d 211 F.3d 137 (D.C. Cir. 2000)). As set out in the motion to dismiss for selective

prosecution (Doc. 14), the question is whether Merritts was “singled out.” United States v. Fares, 978 F.2d

52, 59 (2d Cir. 1992). Indeed, the D.C. Circuit has acknowledged that “direct evidence of motive or intent is

rarely available” in a selective prosecution context, and indirect evidence can establish unequal application of

the law. Branch Ministries, Inc. v. Richardson, 970 F. Supp. 11, 17 (D.D.C. 1997). In Branch Ministries, the

D.C. Circuit ordered discovery because the litigant in that case “could not be expected to have access to

internal IRS documents, witness statements or other direct evidence of discriminatory intent.” Id. (emphasis

added).

The same was true when Merritts was litigating the motion to dismiss for selective prosecution before

this Court: he did not have access to “internal IRS documents” and other documents evidencing

“discriminatory intent.” Id. But the Government did. And the limited internal IRS documents recently

disclosed—all of which should have been disclosed before this Court’s pretrial motions deadline and, at a

minimum, during the litigation of the motions to dismiss—reveal unambiguous evidence of the Government’s

motive: this case will be “impactful” because it will generate “media attention since he [Merritts] is the

husband of a congresswoman.” But instead of disclosing and acknowledging this unconstitutional motive, the

prosecution outright misled this Court in its opposition to the motion to dismiss: “Defendant has put forth no

evidence that any government official involved with deciding to prosecute this case was motivated by

impermissible considerations or discriminatory influence.” (See Doc. 16 at 13). However, to the extent that

was true, it was only because the Government had not disclosed the clear-cut evidence that this prosecution

was motivated by the fact that Merritts was married to a former congresswoman. It was that fact that was

going to generate the media attention the investigative agency wanted. It was the fact that Merritts was

working for Congresswoman Bush’s campaign that was front and center in the law enforcement agency’s

internal memorandum. And, tellingly, it was the very first fact in a note to reviewer seeking authority for IRS-

CI to join in this investigation:

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ultimately set this matter for an evidentiary hearing, and that this Court reconsider all of its previous rulings

related to Congresswoman Bush given what actually transpired.

Respectfully submitted,

Margulis Gelfand DiRuzzo & Lambson

/s/ Justin K. Gelfand
JUSTIN K. GELFAND
JOSEPH A. DIRUZZO, III
7700 Bonhomme Avenue, Ste. 750
St. Louis, MO 63105
Telephone: 314.390.0234
Facsimile: 314.485.2264
justin@margulisgelfand.com
jd@margulisgelfand.com

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Certificate of Service

I hereby certify that the foregoing was filed electronically with the Clerk of the Court to be

served by operation of the Court’s electronic filing system upon the Office of the United States

Attorney and all other counsel in this case.

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