Court filing
Motion to Disqualify the U.S. Attorney's Office — U.S. v. Merritts
No. 1:25-cr-00076-JMC · Doc. 50 · Docket on CourtListener
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Case 1:25-cr-00076-JMC Document 50 Filed 12/29/25 Page 1 of 11
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
Plaintiff, )
)
v. ) No. 1:25-CR-76-JMC
)
CORTNEY MERRITTS, )
Defendant. )
DEFENDANT’S MOTION TO DISQUALIFY THE U.S. ATTORNEY’S OFFICE
FOR THE DISTRICT OF COLUMBIA OR, IN THE ALTERNATIVE, THE AUSAs
WHOSE CONDUCT IS AT ISSUE IN THE PENDING CIVIL 26 U.S.C. § 6103
LAWSUIT
Defendant Cortney Merritts (“Merritts”), by and through his undersigned counsel,
respectfully requests that this Court disqualify the U.S. Attorney’s Office for the District of
Columbia or, in the alternative, the Assistant United States Attorneys whose conduct is at issue in
the 26 U.S.C. § 6103 civil lawsuit currently pending in this judicial district. See Merritts v. United
States, Case No. 1:25-cv-04343.
I. Introduction
During the pendency of this criminal case, the U.S. Attorney’s Office for the District of
Columbia obtained confidential tax return and return information from the IRS. On April 30, 2024,
the IRS disclosure officer expressly warned the U.S. Attorney’s Office for the District of
Columbia: “[i]f you or other personnel disclose the information contrary to these guidelines or use
it for other purposes, you may become liable for civil damages, fines, and imprisonment for
unauthorized disclosure under IRC Sections 7213, 7213A, and 7431, as well as Title 18 Section
1905 of the United States Code.” (See Doc. 31-5 at 1). Despite being expressly on notice by the
IRS not to violate Section 6103 by disclosing confidential tax returns and return information, the
U.S. Attorney’s Office for the District of Columbia published—on the public docket of this federal
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criminal case—the precise tax return and return information for which disclosure was statutorily
prohibited. See 26 U.S.C. § 6103(b)(8) (“The term ‘disclosure’ means the making known to any
person in any manner whatever a return or return information”).
As the federal courts have long recognized, this is no small matter. “[I]n the wake of
Watergate and White House efforts to harass those on its ‘enemies list,’” Congress passed the strict
confidentiality requirements found in Section 6103. Tax Analysts v. I.R.S., 117 F.3d 607, 611 (D.C.
Cir. 1997). Against this backdrop, the sharing of return information by the IRS with other
agencies—specifically including the U.S. Department of Justice outside of its then-operational Tax
Division—raised privacy concerns. Rather than allowing the Executive Branch including the U.S.
Department of Justice to control sensitive taxpayer records, “Congress undertook direct
responsibility for determining the types and manner of permissible disclosures.” In re U.S., 817
F.3d 953, 960 (6th Cir. 2016) (quoting Office of Tax Policy, Taxpayer Confidentiality Provisions,
Vol. I at 22). “To give teeth to these confidentiality provisions, Congress increased the criminal
penalties found in 26 U.S.C. § 7213 and added civil liability.” See Biden v. IRS (Case No. 1:23-
cv-02711-RC) (Doc. 39 at 9) (emphasis added). As Judge Contreras explained, “Congress intended
taxpayers’ return information to be broadly protected from disclosure to prevent abuse by
Executive officers and politicization of the voluntary assessment system” and “the evolution of
these statutes additionally demonstrates that Congress specifically decided that civil liability for
federal employees’ unlawful activity should lie against the federal government and not against the
employees themselves.” (See id. at 9-10.) 34. As the D.C. Circuit has stated: “This general ban on
disclosure provides essential protection for the taxpayer; it guarantees that the sometimes sensitive
or otherwise personal information in a return will be guarded from persons not directly engaged in
processing or inspecting the return for tax administration purposes. The assurance of privacy
secured by § 6103 is fundamental to a tax system that relies upon self-reporting.” Gardner v.
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United States, 213 F.3d 735, 738 (D.C. Cir. 2000) (citation omitted). For these reasons, federal
courts including the D.C. Circuit have long emphasized that the protections afforded by Section
6103 ring hollow when not enforced—and Congress created a private right of action for taxpayers
when federal officials violate Section 6103 in the form of statutory penalties and punitive damages.
In this case—after the defense moved for dismissal based on selective prosecution of an
indictment against the husband of a former Democratic United States Congresswoman—the U.S.
Attorney’s Office unambiguously violated Section 6103. That fact should hardly be in dispute:
after violating federal law despite being told by the IRS of the consequences for doing so, the U.S.
Attorney’s Office for the District of Columbia filed a motion with this Court seeking nunc pro
tunc permission for the unlawful disclosure of confidential tax return information that had already
occurred. (See Doc. 37). Nevertheless, as 26 U.S.C. § 7431 expressly permits, Merritts filed a
lawsuit for damages against the United States for the knowing or negligent unauthorized disclosure
of tax returns and return information in violation of Section 6103. That lawsuit remains pending
in this judicial district.
II. Merritts Has the Right to Be Prosecuted By Disinterested Prosecutors and This
Court Has the Responsibility to Guard Against Even the Appearance of
Impropriety
On December 2, 2025, the defense in this case notified Government counsel—AUSA Emily
Miller, AUSA Brian Kelly, and SAUSA Rami Sibay—by email that their publication of Merritts’s
confidential tax return and return information on the public docket of this case “constitutes a clear
violation of Section 6103.” Three days later, SAUSA Sibay withdrew from this case. (Doc. 38).
On December 22, 2025, the defense formally requested by email that the U.S. Attorney’s
Office for the District of Columbia recuse itself from further participation in this pending federal
criminal case—as the pending civil lawsuit focuses specifically on the conduct of Assistant United
States Attorneys currently prosecuting Merritts and the conduct alleged to violate the law occurred
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during the litigation of this criminal case. This necessarily creates both a conflict of interest and
the appearance of impropriety for both the U.S. Attorney’s Office for the District of Columbia and
for the Assistant United States Attorneys whose conduct is at issue in the civil case. See, e.g., 5
CFR § 2635.101(b)(14). Anticipating the real world realities of the timing of this issue—which
was solely the result of conduct by the U.S. Attorney’s Office in late November and early
December 2025, not the result of any conduct by Merritts—the defense made clear that while ready
and prepared to try this case in January 2026, Merritts would not object to a continuance if that
was necessary so the Government could staff this case with conflict-free prosecutors.
On December 23, 2025—without, in any way, addressing the issues raised by Merritts—the
Government notified the defense by email that neither the U.S. Attorney’s Office for the District
of Columbia nor any person currently on the prosecution team “intends to recuse from this matter.”
Thus, as it stands, the defense gave the prosecutors the opportunity to do the right thing.
However, as they have opted not to do so, the law requires this Court to disqualify them from
further prosecution of this case.
The right to a fair trial encompassed in the Due Process Clause of the Fifth Amendment
affords criminal defendants including Merritts certain rights not specifically enumerated in the
Constitution. These rights include, inter alia, the right to an unbiased judge, Johnson v. Mississippi,
403 U.S. 212, 216 (1971), to a presumption of innocence, Estelle v. Williams, 425 U.S. 501, 503
(1976), to have the government prove every element of its case beyond a reasonable doubt, In re
Winship, 397 U.S. 358, 365 (1970), and to obtain exculpatory evidence in the government’s
possession, Brady v. Maryland, 373 U.S. 83 (1963). In fundamental terms that strike at the heart
of a criminal defendant’s rights in this country, a “fair trial in a fair tribunal is a basic requirement
of due process,” In re Murchison, 349 U.S. 133, 136 (1955). Thus, “[f]airness of course requires
an absence of actual bias in the trial of cases,” id. and, accordingly, “our system of law has always
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endeavored to prevent even the probability of unfairness.” Id.
Thus, it is not surprising that the Supreme Court has long recognized that “[a] scheme
injecting a personal interest, financial or otherwise, into the enforcement process may bring
irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise
serious constitutional questions.” Marshall v. Jerrico, Inc., 446 U.S. 238, 249–50 (1980); see also
Berger v. United States, 295 U.S. 78, 88 (1935) (“It is as much [the prosecutor’s] duty to refrain
from improper methods calculated to produce a wrongful conviction as it is to use every legitimate
means to bring about a just one.”).
Indeed, the U.S. Court of Appeals for the Fourth Circuit has held that prosecution by a
prosecutor with impermissibly conflicted interests (in that case, representing the wife of an accused
while serving as a prosecutor) “violates the requirement of fundamental fairness assured by the
Due Process Clause of the Fourteenth Amendment.” Ganger v. Peyton, 379 F.2d 709, 714 (4th
Cir. 1967). And other courts in various contexts have raised similar concerns in cases that are
largely factually dissimilar but where the general legal principles apply with full force to this case:
the right to be prosecuted by prosecutors who are both conflict-free and who appear to the public
to be conflict-free. See, e.g., United States ex rel. SEC v. Carter, 907 F.2d 484, 486 n.1 (5th Cir.
1990); United States v. LaVallee, 439 F.3d 670, 681 (10th Cir. 2006); United States v. Heldt, 668
F.2d 1238, 1277 (D.C. Cir. 1981); Faulkner v. State, 260 P.3d 430, 431 (Okla. Crim. App. 2011);
In re Goodman, 210 S.W.3d 805, 808 (Tex. App. 2006); Lux v. Commonwealth, 484 S.E.2d 145,
149 (Va. App. 1997); State v. Eldridge, 951 S.W.2d 775, 782 (Tenn. Crim. App. 1997); State v.
Hunter, 313 S.C. 53, 54 (S.C. 1993); and Cantrell v. Commonwealth, 329 S.E.2d 22, 26 (Va. 1985).
These decisions correctly recognize that criminal prosecution by an attorney with a conflict of
interest implicates a criminal defendant’s right to due process—regardless of where that conflict
of interest originates.
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In this case, the conflict of interest is real: the federal prosecutors currently prosecuting
Merritts outright violated the tax secrecy laws and did so even after the IRS—in writing—told
them not to and correctly informed them that the consequences for doing so could be criminal
and/or civil. Merritts exercised his right to seek relief in the form of a civil cause of action
statutorily created by Congress for precisely this conduct. And the prosecutors have already, in
this criminal case, sought to protect themselves from civil liability by seeking an order nunc pro
tunc permitting disclosure as if that would somehow insulate the violation of law that had already
occurred. As this Court may not be aware, this was after the prosecutors—clearly recognizing a
violation of Section 6103—engaged in ex parte communication with the clerk’s office inquiring
about who, other than the Government and defense counsel, had accessed the confidential tax
records from PACER and the clerk’s office informed them it was impossible for the Court to make
that determination. However, it is particularly concerning because, well before this Section 6103
violation, this case has garnered significant media attention at various stages—initially as a result
of a press release generated by the U.S. Attorney’s Office in March 2025. When producing the
email correspondence with the clerk’s office to the defense only upon our request, the U.S.
Attorney’s Office for the District of Columbia expressly acknowledged—by email—that at least
two of the documents it published on this Court’s docket fall “within the ambit of 26 USC 6103.”
In short, the AUSAs responsible for the Section 6103 violation should not be further
prosecuting Merritts—because, knowing he seeks relief in a pending civil case for statutory and
punitive damages, they have every incentive to try to discredit him and to retaliate against him.
And to be clear, Merritts did not manufacture this conflict of interest; rather, it is a result of their
unlawful conduct and a valid private cause of action statutorily created by Congress for precisely
these purposes.
But even if this Court were to presume that the prosecutors assigned to this case will not act
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improperly as a result of their actual conflict of interest, the reality is that the appearance of
impropriety is unavoidable.
To be clear, the appearance of impropriety itself requires disqualification of the prosecution
team in this case. See Williams v. Pennsylvania, 579 U.S. 1, 15 (2016) (“[T]he appearance of bias
demeans the reputation and integrity not just of one jurist, but of the large institution of which her
or she is a part.”); see also, e.g., Roman v. State, 373 Ga. App. 863, 865 (Ga. Ct. App. 2024), cert.
denied (Ga. 2025) (emphasizing that disqualification was required where a public prosecutor’s
conduct created a significant appearance of impropriety during the exercise of prosecutorial
discretion, even absent proof of actual prejudice); Battle v. State, 301 Ga. 694, 698 (Ga. 2017)
(stating that the appearance of impropriety may be grounds for disqualification of a prosecutor).
As a plurality of the U.S. Supreme Court in Vuitton recognized, the participation of a conflicted
prosecutor raises doubts that “undermine[] confidence in the integrity of the criminal proceeding,”
and “‘calls into question the objectivity of those charged with bringing a defendant to judgment.’”
481 U.S. at 810 (plurality opinion) (quoting Vasquez v. Hillery, 474 U.S. 254, 263 (1986)). This is
consistent with 5 CFR § 2635.101(b)(14), which requires federal prosecutors to “avoid any actions
creating the appearance that they are violating the law or the ethical standards” set forth in the
regulations.
In this case, both the inherent conflict of interest and the appearance of a conflict of interest
are overwhelming. Merritts filed a statutorily authorized civil lawsuit because the prosecution in
his criminal case violated the law by publicly disclosing his confidential tax return and return
information. As set out in a letter addressed to the U.S. Attorney’s Office for the District of
Columbia, the IRS disclosed the confidential materials “with the understanding that it will be used
strictly in accordance with, and subject to the limitations of, the disclosure provisions of IRS
6103.” (Doc. 31-5.) The IRS further stated (accurately): “If you or other personnel disclose the
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information contrary to these guidelines or use it for other purposes, you may become liable for
civil damages, fines, and imprisonment for unauthorized disclosure under IRC Sections 7213,
7213A, and 7431, as well as Title 18 Section 1905 of the United States Code.” (Id.).
This is a textbook Section 6103 violation—the kind taught to federal prosecutors who have
access to federal tax returns and return information at the early stages of their employment. Indeed,
the U.S. Attorney’s Office for the District of Columbia in this case even had to obtain (and did
obtain) a court order to obtain this material in the first place and it was provided to them with strict
instructions from the IRS not to violate Section 6103 by further disclosing their contents.
The bottom line is that, regardless of their intentions, the prosecutors currently assigned to
this case outright violated Section 6103 by disclosing to the world confidential tax return and return
information including, but not limited to, disclosing the name, Social Security Number, home
address, tax filing history, and a full federal income tax return of the husband of a former United
States Congresswoman who is currently running in an effort to reclaim her seat in the next
congressional election. And they did so in a case that has garnered significant media attention
initially as a result of a press release they issued in March 2025 publicizing the indictment they
obtained. That press release led to news coverage by national media outlets because, as they well
knew, Merritts is the husband of a former U.S. Congresswoman who is now running in an effort
to reclaim her seat. As the law expressly provides, Merritts is seeking statutory and punitive
damages for the Section 6103 violations and the people and office alleged to be culpable have
every incentive to do everything possible to discredit him and to retaliate against him in the
pending federal criminal case. In simple terms, they have every incentive—personally, not only
institutionally—to silence him and to turn him into a convicted felon by the time his civil case is
ultimately litigated. They are necessarily witnesses in the civil case. Bluntly speaking, they are no
longer disinterested prosecutors—and even if they were to treat him fairly in the criminal case, the
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appearance of impropriety is substantial.
To that end, this Court can and should use its supervisory powers to ensure that the
prosecutors handling this matter are objectively disinterested—and appear so to the general public,
as the law requires. Federal courts have a general supervisory power with respect to the
administration of justice in federal judicial proceedings. See United States v. Hasting, 461 U.S. 499,
505 (1983). “The use of the supervisory power supports three institutional goals: deterring illegal
conduct by government officials, protecting and preserving the integrity of the judicial process, and
implementing a remedy for violation of recognized rights.” United States v. Omni Int'l Corp., 634 F.
Supp. 1414, 1436 (D. Md. 1986) (citing Hasting, 461 U.S. at 505; United States v. Payner, 447 U.S.
727, 735 n. 8 (1980)). “Within limits, federal courts may formulate procedural rules not specifically
required by the Constitution or the Congress.” Id. at 1436–37. “In determining the proper remedy
pursuant to the supervisory power, the relief chosen should be directly related to the seriousness of
the misconduct.” Id. at 1438 (citing United States v. Banks, 383 F. Supp. 389, 392 (D.S.D. 1974)).
In United States v. Dyess, the United States District Court for the Southern District of West Virginia
disqualified the U.S. Attorney’s Office after determining, “The potential conflict between protecting
the good name of the office and its agents while ensuring that the Government’s interests in justice
are fully and fairly represented is clear and unavoidable.” 231 F. Supp. 2d 493, 498 (S.D.W. Va.
2002). The court continued, “This conflict of interest highlights the Court’s final and paramount
concern, the potential for the appearance of impropriety. The Court’s ultimate consideration must
be public confidence in the administration of justice, that ‘justice must satisfy the appearance of
justice.’” Id. (quoting United States v. Johnston, 690 F.2d 638 (7th Cir.1982) (emphasis added)). As
the Supreme Court emphasized in no uncertain terms, federal courts such as this Court have an
obligation to ensure “that legal proceedings appear fair to all who observe them.” Wheat v. United
States, 486 U.S. 153, 160 (1988). An observer of this trial would no doubt question the fairness of
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these proceedings if conducted by prosecutors fully incentivized to discredit and to retaliate against
a defendant who brought a valid civil cause of action against the United States arising out of their
conduct.
“District judges have ‘substantial latitude’ in deciding whether counsel must be
disqualified[.]” United States v. Frega, 179 F.3d 793, 799 (9th Cir. 1999). Because there exists, at a
minimum, an appearance of impropriety that is “clear and unavoidable,” this Court should disqualify
the U.S. Attorney’s Office for the District of Columbia or, in the alternative, the assigned AUSAs
from further prosecution of this case and require substitute counsel to take their place. See Dyess,
231 F.Supp.2d at 498.
To be clear, the remedy Merritts seeks in this motion does not prevent this criminal case from
being prosecuted; it prevents this case from being prosecuted by prosecutors who are no longer
disinterested and by an office inherently interested in protecting its “good name.” 231 F. Supp. 2d at
498. But the law requires more.
III. Conclusion
For the foregoing reasons, Merritts respectfully requests that this Court disqualify the U.S.
Attorney’s Office for the District of Columbia or, in the alternative and at a minimum, the prosecutors
whose conduct is at issue in the pending Section 6103 civil litigation.
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.
/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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