Taxpayers May Pay Legal Bills Of Activists In Dropped Case Over Ice Protests Near Chicago

The Justice Department will not fight a demand by people charged in a since-abandoned criminal case stemming from anti-ICE protests in Chicago that the federal government pay their legal bills, defense attorneys and a DOJ spokesperson confirmed.

The highly unusual move appears to be a gesture by the top federal prosecutor in Chicago, Andrew Boutros, to quell the controversy over his office’s handling of the “Broadview Six,” a group of activists and local Democratic politicians indicted on felony conspiracy charges last year over a protest at an Immigration and Customs Enforcement facility in a Chicago suburb.

Boutros dropped all remaining charges in the case last month, after acknowledging prosecutors engaged in grand jury misconduct, dismissing jurors who opposed charges and communicating with grand jurors outside their official meetings. Boutros, a Trump appointee, later announced he was ordering “sweeping internal reforms to the Office’s grand jury practices.”

Defense attorneys have been unsatisfied by those changes, with several calling on U.S. District Court Judge April Perry to appoint a special counsel to investigate potential contempt of court by prosecutors and to order the government to pay the defendants’ legal fees.

While defendants who can afford it usually have to bear the cost of their own defense regardless of who prevails at trial, a federal law passed in 1997 allows judges to award legal fees to a defendant who faced prosecution tactics that are “vexatious, frivolous, or in bad faith.”

In a court filing late Wednesday, defense lawyers said prosecutors took a “noteworthy and rare” step earlier this month by disclosing they did not intend to oppose the defense request for fees.

A spokesperson for Boutros, Joseph Fitzpatrick, confirmed the office’s position, while adding that the amount has yet to be negotiated.

“We advised defense counsel on June 5 that we do not intend to contest whether they are entitled to fees (without admitting or conceding that fact),” Fitzpatrick told POLITICO by email. “We asked the attorneys to submit their proposed fees and related expenses so that we could negotiate in good faith on a final amount owed.”

One prominent defense attorney who pressed a similar claim more than a decade ago said judges almost never enforce the fee-shifting provision known as the Hyde Amendment, after its author, the late Rep. Henry Hyde (R-Ill.)

“You just don’t see awards under the Hyde Amendment, which is a shame,” Florida-based lawyer David Markus said. ”This is a really important moment and a unique moment. It really does reflect how badly they acted. And that they just want to put this behind them.”

The fee offer — while extraordinary — seems unlikely to calm the storm surrounding the case, particularly after it was revealed that Boutros personally addressed the grand jury that returned the indictment against the group.

Defense attorneys in the Broadview case contend that prosecutors “made repeated misrepresentations both to Defense counsel and to the Court” about what transpired in those sessions, which are typically secret. In addition, transcripts provided to the court edited out prosecutors alleged misconduct, defense lawyers said.

The defense has asked Perry — a Biden appointee and former prosecutor in the same U.S. Attorney’s office — to order the government to turn over any communications between Boutros’ team and high-level DOJ officials in Washington about the case.

Perry hasn’t yet indicated what steps she plans to take, but at a hearing last month she expressed profound disappointment with the conduct of government lawyers in the case.

“I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing. That trust has been broken,” the judge said. “We all took the government attorneys’ word on a great many things. I, at the time, was operating on a presumption of regular grand jury proceedings, which these clearly were not.”