Court filing

Government's Opposition to Reconsideration and Cross-Motion to Quash — U.S. v. Merritts

No. 1:25-cr-00076-JMC · Doc. 51 · Docket on CourtListener

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Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 1 of 12

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :
:
v. : Case No. 25-cr-00076-JMC
:
CORTNEY MERRITTS, :
:
Defendant. :

UNITED STATES’ OPPOSITION TO DEFENDANT’S MOTION TO RECONSIDER
ORDERS DENYING MOTION TO DISMISS FOR SELECTIVE PROSECUTION AND
ORDERS CONCERNING FORMER CONGRESSWOMAN CORI BUSH AND
CROSS-MOTION TO QUASH DEFENDANT’S SUBPOENAS ON IRS-CI OFFICIALS

The United States of America respectfully opposes defendant Cortney Merritts’s Motion to

Reconsider Orders Denying Motion to Dismiss for Selective Prosecution and Orders Concerning

Former Congresswoman Cori Bush (ECF No. 48). The defendant has presented no evidence that

the government misled the Court or that the Court patently misunderstood the parties, made a

decision beyond the adversarial issues presented, or made an error in failing to consider controlling

decisions or data; has identified no controlling or significant change in the law since these issues

were decided; and has not demonstrated that harm would flow from a denial of reconsideration. In

conjunction with his motion for reconsideration, the defendant has requested the government to

effect service of trial subpoenas on three IRS-CI officials. These subpoenas appear to have been

served on the assumption the Court would grant his request for discovery in support of his selective

prosecution motion. As there is no basis for the Court to grant a request for discovery, the

government requests that such subpoenas be quashed because the testimony of the witnesses in

question is not relevant or material to any issue at trial.
Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 2 of 12

I. No Discovery was Hidden from the Defendant.

As a preliminary matter, no evidence was “hidden” from the defendant. To the contrary,

after conducting a thorough Jencks inquiry of the IRS-CI agent on December 4, 2025

(notwithstanding the unlikelihood that the government would call that individual as a witness) and

learning for the first time that the documents in question existed, the prosecution immediately

obtained and turned over the documents that same day in an effort to ensure the defendant had

them in time for the pretrial hearing the next day. The production was small (eleven documents

total, including a number of near duplicates) and thus it borders on frivolous to insinuate that the

documents were hidden from the defendant. Had the government intended to “hide” such

documents, it would make no sense for the government to have produced them immediately upon

discovering their existence.

II. The Defendant Has Failed to Establish a Basis for Reconsideration.

The Federal Rules of Criminal Procedure do not specifically provide for motions for

reconsideration in criminal cases, but the Supreme Court has recognized, in dicta, the utility of

such motions. United States v. Sunia, F. Supp. 2d 51, 60 (D.D.C. 2009) (citing United States v.

Dieter, 429 U.S. 6, 8 (1976)). As recently acknowledged in United States v. Burns, No. 24-CR-

151 (JMC), 2025 WL 1078781, at *3 (D.D.C. Apr. 10, 2025):

Although courts differ in the precise standard applied to such motions, courts in this
district have consistently applied the “as justice requires” standard lifted from
motions to reconsider interlocutory decisions in civil cases. See [Sunia, F. Supp.
2d] at 60–61. Under that standard, the court may grant the motion if “the Court
patently misunderstood the parties, made a decision beyond the adversarial issues
presented, made an error in failing to consider controlling decisions or data, or [if]
a controlling or significant change in the law has occurred,” and if “some harm [ ]
would flow from a denial of reconsideration.” Id. at 61. Alternatively, the Court
may grant reconsideration “if there are other good reasons for doing so.” Id.

As the defendant has failed to satisfy this standard, his motion should be denied in its entirety.

2
Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 3 of 12

A. The Defendant Has Failed to Meet the Threshold for Reconsideration of
the Denial of His Selective Prosecution Motion or Discovery and His
Subpoenas to IRS-CI Officials Should be Quashed.

The defendant’s motion for reconsideration of the denial of his selective prosecution

motion is premised on the false notion that the documents provided on December 4, 2025,

demonstrate that the government brought the pending case because the defendant is “the husband

of an outspoken Democratic former congresswoman.” ECF No. 14 at 6. As nothing in the

documents at issue establish any evidence of discriminatory purpose, or, as the defendant concedes

through his complete lack of argument, establish any evidence of discriminatory effect, his motion

for reconsideration of the denial of his selective prosecution motion and related request for

discovery must fail.

The documents the defendant attached to his motion comprised a Subject Investigation

Initiation package that the IRS-CI agent drafted on May 1, 2024, seeking supervisory approval—

at the request of the U.S. Attorney’s Office—to expand his preliminary analysis of the COVID

loan fraud case into a fulsome bank fraud investigation. 1 That package is attached (under seal) as

Exhibit A (USAO-010755 et seq.). Importantly, all the documents at issue were drafted on or

before May 1, 2024, during the Biden administration, wholly undermining any argument that the

investigation was motivated by animus of the new administration against the defendant or his

1
See https://www.irs.gov/compliance/criminal-investigation/how-criminal-investigations-are-
initiated (12/30/2025) (“Special agents analyze information to determine if criminal tax fraud or
some other financial crime may have occurred. Relevant information is evaluated. This preliminary
process is called a ‘primary investigation.’ The special agent's front line supervisor reviews the
preliminary information and makes the determination to approve or decline the further
development of the information. If the supervisor approves, approval is obtained from the head of
the office, the special agent in charge, to initiate a ‘subject criminal investigation.’ At this point, at
least two layers of CI management have reviewed the 'primary investigation' material and
determined there is sufficient evidence to initiate a subject criminal investigation.”)

3
Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 4 of 12

spouse based on their political affiliation or employment. Moreover, the agent’s supervisors

declined his request for more in-depth participation in the investigation because none of the

proposed charges were charges the IRS-CI investigates standing alone. 2 That is why the agent did

not initial the case opening document (Defense Exhibit 3/Government Exhibit A at USAO-

010759), why there is blank space next to “Date Initiated” on that document, and why none of the

draft documents in the package bear the signature of any IRS official. Accordingly, all the

defendant’s arguments about who approved the instant investigation or their motive for doing so

are also without merit.

Despite the defendant’s wholly misplaced reliance on draft documents that were created

during the Biden administration, the government addresses some of his more specific arguments

about them below.

Defense Exhibit 3 was an IRS-CI case opening document recommending an investigation

into a Paycheck Protection Program loan obtained by the defendant. Notwithstanding the

defendant’s allegations, absolutely nothing in this document demonstrates that the agent’s request

to expand his preliminary analysis into a fulsome bank fraud investigation was politically

motivated. As is evident, the case opening document is a boilerplate form that requires the agent

to answer a series of questions. Question 2(c) asked generally, “How is the investigation

2
See I.R.M. 9.1.3.4.15 (“Note: Per Tax Division Directive No. 128, dated October 29, 2004, the
DOJ Tax Division may approve bank fraud charges in tax-related cases involving schemes to
defraud the government or other persons if there was a large fraud loss or a substantial pattern of
conduct and there is a significant benefit to bringing the charges instead of or in addition to Title
26 violations. Bank fraud charges may be appropriate in the case of a fraud scheme that victimized
a financial institution. For example, bank fraud charges would be appropriate where a defendant
filed false refund claims and induced a financial institution to approve refund anticipation loans
on the basis of the fraudulent information submitted to the IRS.”).

4
Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 5 of 12

impactful?” It then required the agent to answer four sub-questions, three of which are relevant

here.

Question 2(c)(i) asked about the “Notoriety of Target.” The agent responded that the

defendant was “the husband of Congresswoman Cori Bush.” In short, the agent observed that being

married to a national political figure gives a person notoriety. Notably, the agent did not identify

Congresswoman Bush’s party or elaborate that she was also the subject of a political corruption

investigation (even though “Political Corruption Investigations” was specifically listed as an

example of “Notoriety.”) The agent’s response was akin to noting that the defendant was married

to a famous athlete or actress and thus that he had notoriety derived from that person’s fame. 3 Had

the agent failed to note this fact, he would have neglected to alert his supervisors that publicity

from this case could be impactful from a general deterrence perspective — a perfectly valid factor

for the government to consider in determining whether to pursue a case. See United States v.

Armstrong, 517 U.S. 456, 465 (1996) (“Judicial deference to the decisions of these executive

officers rests in part on an assessment of the relative competence of prosecutors and courts. Such

factors as the strength of the case, the prosecution’s general deterrence value, the Government’s

enforcement priorities, and the case’s relationship to the Government's overall enforcement plan

are not readily susceptible to the kind of analysis the courts are competent to undertake.” (emphasis

added)).

Question 2(c)(iii) asked the agent to “[d]escribe the factors that ma[d]e the investigation

impactful[,]” and then listed example responses including “media attention, notoriety of subject,

3
The defendant has offered no authority, and the government is aware of none, to support the
proposition that being a person of note, or the spouse of a person of note, constitutes a protected
class.

5
Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 6 of 12

effect on community, international nexus, virtual currency, [and] dark web.” Akin to his answer

to the first question, the agent responded, “[m]edia attention since he is the husband of a

congresswoman.” Again, there was no reference to the congresswoman’s party or the campaign

funds investigation. And again, had the agent failed to note that the investigation might garner

media attention because of the defendant’s derivative fame, and thus promote general deterrence,

his answer would have lacked pertinent information.

Question 2(c)(iv) asked whether the investigation “involve[d] sensitive subjects as defined

by IRM 9.4.1.6.3 or other sensitive factors?” IRM 9.4.1.6.3 describes the approval authority

required for sensitive versus non-sensitive investigations. 4 The agent responded that the defendant

was “not a sensitive subject but [that] his spouse” was one, and that he “work[ed] for his wife’s

campaign.” The agent’s concise but complete response to the question demonstrates only that he

wanted to ensure his supervisory chain could consider the appropriate level of authority required

to approve a more in-depth investigation. Neither the question nor the agent’s response have any

bearing on the reasons for expanding the investigation.

In Defense Exhibit 4 (Government Exhibit A at USAO-010762), a draft approval letter

addressed to the U.S. Attorney’s Office, and Defense Exhibit 5 (Government Exhibit A at USAO-

010763), a Note to Reviewer for a Signature Package, the same agent repeated the same facts

elaborated in Defense Exhibit 3, for the same reasons.

At bottom, the defendant has offered nothing more than evidence that at least one IRS-CI

agent believed a factor in favor of conducting a more in-depth investigation at the IRS was that it

would garner media attention (and thus promote general deterrence); and that said agent wanted

to ensure the investigation was approved at the correct level of supervision. Not a single newly-

4
See https://www.irs.gov/irm/part9/irm_09-004-001#idm139708211836224 (12/30/2025).
6
Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 7 of 12

asserted fact establishes that the government brought this case for an improper purpose, such as

political affiliation or political employment. Further, the defendant has offered no new evidence to

prove discriminatory effect, an essential element to establish selective prosecution. Accordingly,

both his motion to reconsider the denial of his selective prosecution motion and his related request

for discovery should fail. See Armstrong, 517 U.S. at 465 (to demonstrate selective prosecution, a

defendant must provide “clear evidence” that the government’s actions “had a discriminatory effect

and that it was motivated by a discriminatory purpose” (emphasis added)); see also Transcript of

December 5, 2025, Pretrial Conference at 24:8 – 26:14 (this Court denying the selective

prosecution motion in part because “the defendant has not shown that he was singled out for

prosecution from among other similarly situated [individuals,]” “the defense has failed to properly

identify the group to which he is similarly situated[,]” “even taking this group that the defense has

identified for comparison … there is just some evidence that there are other similarly situated

[individuals] that have been prosecuted for this type of loan fraud in this amount[,]” and “the

defense has failed to demonstrate discriminatory effect”).

The Court should also quash the defendant’s subpoenas to the IRS-CI officials because the

Court has not authorized discovery on the defendant’s selective prosecution claim and the

defendant has no valid basis to call such witnesses to the stand at trial. Under Federal Rule of

Criminal Procedure 17(a), “a valid subpoena may command a witness to attend and testify.” United

States. v. Llanez-Garcia, 735 F. 3d 483, 493 (6th Cir. 2013) (internal citations omitted). When

evaluating a motion to quash a subpoena ad testificandum, courts frequently draw on principles

analogous to those used when deciding a motion to quash a subpoenas duces tecum. United States

v. Santistevan, No. 11-cr-00406-CMA, 2012 WL 2875949 *1 (D. Colo. July 12, 2012) (“The

standard is basically the same for subpoenas compelling the attendance of witnesses—i.e.,

7
Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 8 of 12

subpoenas ad testificandum under Rule 17(a)” as it is for subpoenas duces tecum under Rule

17(c)). In particular, “a subpoena ad testificandum survives scrutiny if the party serving it can show

that the testimony sought is both relevant and material.” Stern v. U.S. Dist. Ct., 214 F.3d 4, 17 (1st

Cir. 2000)). The three IRS-CI officials on whom the defendant has requested the government to

effect service are the same individuals whose names were included on these draft documents that

were never signed or approved. As no request for discovery has been granted and the only purpose

the defendant can offer for calling any of these witnesses at trial is to offer arguments this Court

has already deemed inadmissible, the subpoenas ought to be quashed.

B. The Defendant Has Failed to Meet the Threshold for Reconsideration of
This Court’s Rulings Concerning Appropriate Bias Testimony.

The defendant also argues the Court should reconsider its order granting the government’s

motion to exclude details of the campaign finance investigation because the discovery in question

revealed for the first time that he was “a target” of the campaign finance investigation. As the

defendant has failed to provide any new evidence establishing that he was a target of the campaign

finance investigation and continues to fail to identify any reason details of the nature of that

investigation are relevant to assessing the bias of any individual witness, his request for

reconsideration of the Court’s ruling on bias examination should also fail.

First, if the defendant means to assert that the evidence in question revealed he was a

“target” of the campaign finance investigation as that term is used in the Justice Manual, he is

incorrect. As defined in the Justice Manual, “[a] ‘target’ is a person as to whom the prosecutor or

the grand jury has substantial evidence linking him or her to the commission of a crime and who,

in the judgment of the prosecutor, is a putative defendant.” Justice Manual 9-11.151. The United

States correctly asserted at the pretrial conference that the defendant was never a target of the

campaign finance investigation. No target warnings were appended to the subpoena served on him

8
Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 9 of 12

to produce documents. No representations were ever made to his counsel that he was a target. No

target letter inviting him to testify before the grand jury was ever sent. No potential charges against

him were ever presented to a grand jury.

Second, the May 19, 2023, letter by the U.S. Attorney’s Office to IRS-CI (Defense Exhibit

2/Government Exhibit A at USAO-010764) inviting IRS-CI to participate in a grand jury

investigation “concerning” four individuals including the defendant and involving allegations

including unlawful conversion of campaign funds for personal purposes does not support his

argument. Describing a grand jury investigation as “concerning” several individuals is hardly the

same thing as identifying those individuals as “targets.” Indeed, “concerning” is consistent with

the Justice Manual’s definition of a “subject” of a grand jury investigation — “a person whose

conduct is within the scope of the grand jury's investigation” — which is a wholly-different

classification from one who is a “target” of an investigation. Justice Manual 9-11.151. Nowhere

in the letter does it identify the defendant as a “target” of the grand jury investigation or indicate

that the prosecutor or the grand jury had substantial evidence linking him to the crimes being

investigated or that he was a putative defendant.

Third, as the Government explained during the prior argument, it was exceedingly unlikely

that anyone other than former Congresswoman Bush or a campaign staffer involved in the

preparation or filing of her FEC reports could have been charged with any of the charges identified

in the letter. 5 Even the reference to a potential conspiracy charge under 18 U.S.C. § 371 relates to

a potential Klein conspiracy, i.e., a conspiracy to impede the FEC through false filings. There is no

5
The crimes identified in the letter included unlawful conversion of campaign funds for personal
purposes in violation of 52 U.S.C. § 30114(b), causing false campaign expenditure reports in
violation of 52 U.S.C. §§ 30104 and 30109, false statements in violation of 18 U.S.C. § 1001, wire
fraud in violation of 18 U.S.C. § 1343, falsification of records in violation of 18 U.S.C. § 1519,
and conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371.
9
Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 10 of 12

evidence, nor was there ever any evidence, that the defendant had any role in the preparation or

filing of the FEC reports. Simply put, the defendant was never a target or even the focus of the

investigation related to the charges listed.

Fourth, at all times prior to the defendant’s filing of his motion to dismiss for selective

prosecution, he was aware that his conduct fell within the scope of the grand jury investigation of

former Congresswoman Bush, i.e., that he was a “subject” as that term is defined in Justice Manual

9-11.151. Indeed, the government’s very first discovery production on April 21, 2025, included a

memorandum memorializing an interview the FBI conducted with the defendant on December 6,

2023, in which the defendant was advised of the nature of the interview and asked questions about

security services he purportedly provided to the campaign. See Government Exhibit B (USAO-

002530). The government’s second discovery production, dated April 30, 2025, included the FBI’s

case opening document, which explained that the investigation would address allegations the

campaign improperly paid two individuals, including the defendant, thousands of dollars for

security services despite no evidence security services were performed or that these individuals

owned security firms. See Government Exhibit C (USAO-005687, filed under seal). As nothing

prevented the defendant from arguing these facts in prior litigation, and the recently provided

documents shed no additional light, they provide no basis for reconsideration.

Finally, contrary to the defendant’s allegation, the government has never stated, nor

intended to imply to the Court, that the defendant’s conduct was not within the scope of the

campaign funds investigation. The record demonstrates that all the parties were less than artful in

their use of the word “target” during the pretrial hearing and may have been using the term in a

colloquial fashion to indicate that the defendant was not the focus of the campaign funds

investigation. Ultimately, it is fair to say that both the defendant and former Congresswoman Bush

10
Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 11 of 12

were subjects (but not targets) of the campaign finance investigation, that former Congresswoman

Bush was the focus of that investigation, and that neither individual ever rose to the level of a

“target.”

Indeed, the government’s representations at oral argument were consistent with

representations made in its August 29, 2023, application for a 2703(d) order to Google, disclosed

to the defense on April 30, 2025 (USAO-6371) and filed under seal as Exhibit D. Therein, the

government described its investigation as involving:

[P]otential violations of federal law by Congresswoman Cori Bush, her campaign
committee, and others both known and unknown to the Government. This investigation
concerns, but is not limited to, potential criminal offenses, including unlawful conversion
of campaign funds for personal purposes, in violation of 52 U.S.C. § 30114(b), causing
false campaign expenditure reports, in violation of 52 U.S.C. §§ 30104 and 30109, false
statements, in violation of 18 U.S.C. § 1001, wire fraud, in violation of 18 U.S.C. § 1343,
falsification of records, in violation of 18 U.S.C. § 1519, and conspiracy to commit an
offense against the United States, in violation of 18 U.S.C. § 371. Specifically, the United
States is investigating whether Congresswoman Cori Bush illegally used campaign funds
for her personal use or made illegal payments to a family member, then concealed such
activity by making false filings with the Federal Election Commission (FEC).

See Exhibit D at 2-3.

The application went on to state that “the Subject Accounts are all associated with one of

the previously mentioned subjects of the investigation: Cori Bush, Cortney Merritts, [Person 1],

[Company 1], and [Person 2] (who has been listed as a registered agent for [Company 1]).” Id. at

6-7 (emphasis added). As evidenced by this application, and by the government’s representations

to the Court, at all times the defendant was a “subject” of the initial investigation and was never

— as the defendant baselessly argues — a “target.” The defendant was also already well on notice

that, while former Congresswoman Bush was the focus of that investigation, his own conduct was

also within its scope. For the defendant to represent otherwise through baseless accusations and

hyperbolic language is disingenuous at best.

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Case 1:25-cr-00076-JMC Document 51 Filed 12/31/25 Page 12 of 12

Even if the government inadvertently confused the Court on these points, however, there

is no basis for the defendant to obtain reconsideration. The defendant has still failed to identify

why the details of the nature of the prior investigation are relevant to assessing the bias of any

individual witness. The only potential witness to whom any of the documents in question could

possibly be relevant is the IRS-CI agent who drafted the Subject Initiation Package, whom the

government does not expect to call as a witness at trial.

III. Conclusion

For the foregoing reasons, the defendant’s motion should be denied in its entirety and his

subpoenas to IRS-CI officials should be quashed.

Respectfully submitted,

JEANINE FERRIS PIRRO
UNITED STATES ATTORNEY

By: /s/ Emily A. Miller
EMILY A. MILLER (D.C. Bar No. 462077)
Assistant United States Attorney
United States Attorney’s Office
District of Columbia
601 D Street NW
Washington, DC 20530
Office: (202) 252-6988

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