Native Format: A Way to Test Andrew Boutros' Claim He Never Read the October 9 Transcript in Real Time - emptywheel
In the Broadview 6 hearing last week, Judge April Perry focused closely on how privilege claims would be affected if they were pertinent to a claim of selective or vindictive prosecution. But as with many questions Judge Perry posed to AUSA Nate Whalen, he hedged in his answers.
All right. Let’s move on to privilege, which has loomed large in our discussion so far. Is it the Department of Justice’s position that if someone is prosecuted because of their political affiliation, their First Amendment conduct, race, any other legal consideration that the documents that show that will be privileged?
MR. WHALEN: I think there is caselaw — the government believes there is caselaw out there that says when — in the FOIA context is where I’ve seen it — when there has been a showing of potential selective or vindictive prosecution, this court can, pursuant to an order, kind of maintaining the privilege reviewed in the documents. And hopefully I answered your question, Your Honor. I don’t mean to be —
THE COURT: I’m thinking it through.
MR. WHALEN: Sure.
THE COURT: I’m going to ask you again because I’m not sure you did.
MR. WHALEN: Okay.
THE COURT: If there is a document that says, we are going to prosecute all of the people of color for this offense and none of the white people, would that be privileged, in your opinion?
MR. WHALEN: It depends on the situation in which the document is being asked to produce.
Perry then asked questions that would go to whether DOJ would have to reveal the existence of pertinent communications if relevant to a selective and vindictive claim. Again, Whalen hedged.
THE COURT: Okay. I’m assuming it’s not your position that if one of those legal considerations is at issue in a case, that a prosecutor should lie to the government or the Court about whether or not the communication exists?
MR. WHALEN: Your Honor, it’s the position of the Department of Justice we should never lie to Your Honor.
THE COURT: So if there’s a claim of privilege, doesn’t that need to be made at the time the relevant communication is requested?
MR. WHALEN: I don’t know the answer to that.
THE COURT: I mean, certainly AUSAs, like all lawyers who appear before me, have a duty to be truthful, right?
MR. WHALEN: Correct. I’m sorry.
THE COURT: And privilege isn’t automatic, right? I mean, Courts review documents for claims of privilege all the time.
So then Judge Perry asserted as fact that she was told there were no relevant communications on that topic.
THE COURT: All right. Well, in this case I was told that there were no relevant communications at all. Period. Hard stop. If there are, in fact, no relevant communications to the malicious prosecution, vindictive prosecution motion, what privilege could possibly exist here?
She’s talking about the claims that William Hogan made in a March 30 filing, which she expressly relied on in an April 7 hearing when denying the Broadview 6′ selective and vindictive claim.
To the end, the prosecutors agreed to provide evidence of external forces communicating with the Chicago U.S. Attorney’s Office about this case, and they have now said there is no such evidence. There are no White House communications, there are no main justice communications, and I quote, There are no communications of any nature from, to, or with anyone outside of the U.S. Attorney’s Office other than local FBI investigators assigned to the case regarding any investigatory or charging decisions.
In response to her assertion that she was told there were no relevant communications, Whalen pulled up the March 30 document in question and disputed whether the claim was that categorical.
MR. WHALEN: Your Honor, may I just grab something off the table for a second?
THE COURT: Sure.
MR. WHALEN: Thank you. And the reason I’m grabbing this, Your Honor, is the representation was not made that there were no communications period or stop, as I understand it. Our representation in docket 110, starting on pages 3 and 4. We were responding to the former defendants’ request for documents. And their request is on page 94 — I’m sorry — docket 94. So if you look at docket 94, page 6, they said, quote, these — I’m not quoting here, these documents, quote, “Give rise to a prima facie showing sufficient to warrant discovery in to any role the White House may have held in influencing, if not directing, the prosecution of this case.”And the government responded at docket 110, pages 3 to 4, and said that there are no communications showing who was — “The indictment in this case was proposed, reviewed and approved exactly like hundreds of others routinely brought by the USAO year-in and year-out, that is without any influence or interference by anyone outside the USAO.”
And then the government goes on and says, “The decisions about who and what to charge were made by USAO prosecutors and their supervisors based solely on positive identifications of the defendants and evaluations of their individual criminal conduct.” Tying back to that, we then say, “Accordingly, there are no communications of any nature or form to or with anyone outside of the USAO regarding investigatory or charging decisions.” How I read that sentence and paragraph is that there are no communications prior to the decision to charge the former defendants directing us to charge these particular individuals. Because, Your Honor, on page 4 there is this footnote, footnote 2, where we say, we have alerted DOJ about our decision to charge these individuals, right. That in and of itself is saying, yes, there are communications, they are just post charging.
THE COURT: All right. So what I have says — and this is, I think, exactly what you quoted, “Accordingly, there are no communications of any nature from, to, or with anyone outside of the U.S. Attorney’s Office, other than the local FBI investigators assigned to the case, regarding any investigatory or charging decisions. To be crystal clear, this specifically includes anyone in the White House and all components and offices of Main Justice.” Is it your position that statement is true, or is it your position that statement is truthy because there are privileged communications of this nature?
When asked whether he stood by that statement Whalen said it was true as it relates to precharging decisions.
MR. WHALEN: Our position is that is true when tied back to the opening of the paragraph where it says, no one — excuse me — There was no communications about influence or interference by anyone outside the USAO. And so this statement is true as it relates to precharging decisions, Your Honor.
THE COURT: But possibly untrue as it relates to things that happened after the decision was made?
MR. WHALEN: Well, Your Honor, we made clear and we tried — we clearly did not make clear. We attempted to clarify that there were communications after the decision was made between us and the Department.
That’s when Judge Perry raised the point I raised here: There wasn’t just one charging decision. There was, at a minimum, the decision to present the case a second (and third) time to the grand jury. Whalen attempts to claim the famous Footnote 15 addressed this issue. Perry scoffed.
THE COURT: I mean, here’s what I’m having a little struggle with. The decision is not, as in most cases, a one-time thing because we have a cross-memo that goes up the chain that at some point has an indictment with it that gets signed. And then we have a whole lot of other things that happened in the weeks that follow where the case gets presented, there’s a no bill, re-presented, re, re-presented. So are you saying charging decision as in the moment whoever at the top of the chain, whichever chain it was at the time, agreed that charges should issue? Or are you accounting for all of this later time period where there were arguably other decision points that needed to be made, not the least of which was after the no bill? Again, the US Attorney, as I understand it, had to affirmatively make the decision to represent.So, I guess, it would help me if you would clarify what your decision point is that you are using for that very nuanced and specific statement. MR. WHALEN: Your Honor, we attempted to clarify in our response on footnote 15, page 41.
THE COURT: You didn’t. Footnote 15 is a mess. “The front office is not aware of any communications in which it took direction from anyone outside the USAO regarding decisions as to what investigatory steps the local prosecution team would take or who the local prosecution team would charge when prosecutors went into the grand jury to indict this case.” Okay. So “the front office is not aware” is different from there were no communications. “In which it took direction” is different from no direction was given to us. “As to what investigatory steps or who would be charged” is different than what would be charged. And “when prosecutors went into the grand jury to indict this case,” I mean, they went into the grand jury to indict the case on three separate occasions. So I appreciate you trying to clarify. That is a highly ambiguous statement, and given that I’ve already been confused, shall we say, several times about what the facts are with respect to this issue, I want to make it clear now. So “the front office is not aware.” Does that mean there could be, but at this moment the front office does not remember whether there are any communications?
A bit later, Judge Perry noted that DOJ keeps raising privilege claims, suggesting there’s something privileged in question. She repeats, again — and again — that she was told point blank (by Hogan, though she doesn’t name him) that there were no such communications pertinent to a selective prosecution claim.
THE COURT: I mean, I didn’t intend to engage fact finding either at this stage, but you’re telling me — you’re making a lot of claims of privilege. And look, if there are no documents that are material, there is no privilege. No documents, no privilege. The constant repetition of privilege indicates to me there is something out there that is relevant and material.
MR. WHALEN: Well, Your Honor, I think even — I don’t know that the claim of privilege necessarily goes to only responsive and relevant documents. Right? When the Court is asking us to produce documents and they are privileged documents, I understand you can say, there are no responsive documents. That’s like saying, you know, I’m not guilty of a crime. I understand that you could always say that. I don’t think the Court should necessarily infer — and I could look at the caselaw, I might be wrong about this. I don’t think that the Court should infer the fact that we’re saying there are potentially privileged communications necessarily means that there is a responsive communication to the question.
THE COURT: I’m inferring it only because my first question I got was there’s nothing. No way, no how. And now your argument has changed pretty significantly. And is, if there were something, it would be privileged.
MR. WHALEN: I don’t believe I said there is no way, no how communications.
THE COURT: You didn’t.
Judge Perry returns to the fact that there were more than one prosecutorial decision. Whalen tried, again, to retreat back to what the March 30 document says. But ultimately he concedes that those reassurances would read differently to someone who knew DOJ presented this case three times.
MR. WHALEN: Your Honor, I think reading docket 110, I mean — I’m telling the Court docket 110, as a read it, and I think our position has been, that there are communications between us and DOJ, and we’re not hiding that fact. Now what document 110 says, as I read it, is there are no communications about the direction of the charging and indictment in this case.
THE COURT: But at what stage?
MR. WHALEN: I understand Your Honor’s question.
THE COURT: Because I didn’t know at the time I got docket 110 that there were multiple presentations, I don’t think.
MR. WHALEN: I think that’s probably correct.
This question seems to be the primary thing Judge Perry wants to answer, given her order for more documents. She is asking for every communication with someone outside of Chicago USAO from the day of the protest until the day Hogan wrote that claim into the March 30 filing.
(1) all communications between September 26, 2025 and March 30, 2026 from, to, or with anyone outside of the Northern District of Illinois U.S. Attorney’s Office (other than the local FBI investigators assigned to the case) regarding any investigatory or charging decisions for this case; and (2) the October 14, 2025 email sent to U.S. Attorney Boutros attaching the October 9, 2025 Grand Jury transcript and any replies to or forwards of that email.
The timing would cover the October 27 meeting at which a video — almost certainly the video Kat Abughazaleh posted, which Mike Davis and others RTed, ordering Andrew Boutros to charge it as a conspiracy. Judge Perry is ordering any memorialization of that meeting and any other oral communications.
To the extent there were oral, rather than written, communications that would be responsive to the Court’s requests, the Government is asked to provide the following: (1) the people present for such communication; (2) the date, time, and length of the conversation; and (3) a certification that there was no recording or transcription made of the communication. If the communication was later summarized in writing or notes were taken, they should be produced.
And she is asking for the documents in native format, meaning she’ll be able to see who was involved in authoring emails, who was BCCed, what time various events occurred with such emails. Such a timeline could be of critical import for the events of October 16. Judge Perry would get something more specific from such tracking information for the first grand jury presentation. As Boutros described in his filing, he received it on October 14. But he pinky swears he didn’t read it.
The United States Attorney was emailed a copy of the transcript from the October 9, 2025, grand jury presentation on October 14, 2025, but has no recollection of reviewing the transcript at that time, and is quite certain he did not review the transcript at that time.
Judge Perry might get a lot of documents from this request.
One other thing she’ll get, with her request for the native format on email files and their attachments, is some more information about whether Boutros was telling the truth that he never read that October 9 transcript.