{"id":107261,"date":"2025-02-04T12:14:23","date_gmt":"2025-02-04T18:14:23","guid":{"rendered":"https:\/\/milesfortis.com\/?p=107261"},"modified":"2025-02-04T12:14:59","modified_gmt":"2025-02-04T18:14:59","slug":"107261","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=107261","title":{"rendered":""},"content":{"rendered":"

D.C. Federal Judges Join the Resistance<\/a>
\nOverriding the President’s Control of the Department of Justice<\/p>\n

<\/p>\n

U.S. District Judge Beryl Howell\u00a0<\/span>(Nice when PID is provided)<\/span><\/p>\n

Some judges have seized upon a new form of resistance to President Trump\u2019s policies and agenda \u2014 Refusing to dismiss criminal cases with prejudice in accordance with the President\u2019s instructions to the Attorney General. Three of the eight federal district judges in D.C. who are on senior status,1<\/a><\/span>\u00a0joined by one of their colleagues, have tried to undercut Presidential authority in this manner.<\/p>\n

This article will consider one such case before Senior Judge Beryl A. Howell. Judge Howell has frustrated the President\u2019s clear intent by refusing to dismiss indictments against Nicholas DeCarlo and Nicholas Ochs with prejudice. She did this despite the fact that, as she admitted, \u201cIt has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences<\/em>.\u201d<\/p>\n

In her explanatory\u00a0Memorandum and Order<\/a> (\u201cMemorandum\u201d) Judge Howell not only refused to dismiss the indictments with prejudice but went out of her way to take gratuitous and irrelevant shots at the President and the pardons he granted pursuant to his Constitutional powers.<\/p>\n

The Presidential Amnesty Proclamation<\/strong><\/p>\n

The date he was inaugurated, President Trump a signed a\u00a0Proclamation<\/a>\u00a0that essentially granted amnesty for all \u201coffenses related to events that occurred at or near the United States Capitol on January 6, 2021<\/em>.\u201d The Proclamation addressed separately defendants who had been convicted and those who had been indicted but not convicted. Of those who had been convicted, they either had their sentences commuted \u201cto time served as of January 20, 2025<\/em>,\u201d or were granted a \u201cfull, complete and unconditional pardon<\/em>\u201d for their offenses.<\/p>\n

However, there were other defendants who were still subject to pending indictments for which there were not yet final convictions. For these, the President\u2019s Proclamation directed the Attorney General \u201cto pursue dismissal<\/strong>\u00a0with prejudice to the government<\/strong>\u00a0of all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021<\/em>.\u201d (bolded emphasis added)<\/p>\n

The \u201cdismissal<\/em>\u00a0with prejudice to the government<\/em>\u201d clause was intended to ensure that the government would never again be able to prosecute this category of defendants who were not yet burdened with a final order of conviction. It was the functional equivalent of a pardon. Judge Howell has now done everything she can to thwart that Presidential intent.<\/p>\n

<\/p>\n

The Case Against DeCarlo and Ochs<\/strong><\/p>\n

A recitation of the basic facts relating to this prosecution is instructive. It reinforces the idea that these prosecutors have been pursuing a political vendetta, and that they had a willing ally in Judge Howell.<\/p>\n

DeCarlo and Ochs, originally were indicted for seven alleged federal crimes, two felonies and five misdemeanors.2<\/a><\/span>\u00a0One of the felonies was for \u201cObstruction of an Official Proceeding\u201d (the certification of the election results). This was an alleged violation of the anti-obstruction provisions of the Sarbanes-Oxley Act, 18 U.S.C. \u00a71512 (c).3<\/a><\/span>\u00a0That statute was enacted in 2002 to combat the corporate abuses and excesses that led to the Enron scandal.<\/p>\n

In September 2022, the defendants and the government entered into a plea agreement. The defendants agreed to plead guilty to the \u00a71512 Obstruction count (which they had previously sought to dismiss) and the government agreed to dismiss all remaining charges.<\/p>\n

On December 9, 2022, Judge Howell sentenced the defendants to 48 months in prison on the Obstruction count.<\/p>\n

A year-and-a-half later, however, things changed. On June 28, 2024, in\u00a0Fisher v. United States<\/a><\/em>, the Supreme Court ruled that the obstruction provisions of \u00a71512(c) did not apply. That was the only charge for which the defendants had been convicted and sentenced. As a result, on November 1, 2024, Judge Howell vacated DeCarlo\u2019s and Och\u2019s criminal convictions.<\/p>\n

At this point, the only count upon which they had been convicted was barred by the Supreme Court\u2019s\u00a0Fisher<\/em>\u00a0decision and all other charges against the defendants had been dismissed. Trump had won the election, and it was clear that he would be reviewing the convictions of J6 defendants for possible clemency action. In a normal case, the defendants would have been released from prison so they could try to reconstruct their lives. But, where you have politically motivated prosecutors and a politically activist judge, normal procedures will not be followed.<\/p>\n

\n

For reasons Judge Howell did not explain in her Memorandum, the government was allowed to renew the criminal charges that it had previously dismissed pursuant to the plea agreement, and even to file new criminal charges against the same defendants arising out of the same conduct.<\/p>\n

The prosecutors let more than two months go by before they filed new charges. Doubtlessly miffed at both the Supreme Court\u2019s reversal of the only charge for which they had secured a conviction,\u00a0and<\/strong><\/em>\u00a0at the election of the detested Orange Man, they filed new charges on January 15. Some were larded-up versions of the original charges that they had agreed to dismiss as part of the plea bargain; others were new counts entirely. In contrast to the original five misdemeanor charges that could have been refiled, they stacked on additional charges, bringing the total in the new indictment to nine, including\u00a0seven<\/em>\u00a0felonies. It was, in short, a vindictive \u201cWe\u2019ll-teach-you-by God<\/em>\u201d carpet-bombing.<\/p>\n

Five days later President Trump was inaugurated and promptly issued his\u00a0Proclamation<\/a>\u00a0and ordered the Department of Justice to pursue a \u201cdismissal with prejudice<\/em>.\u201d DOJ complied with the President\u2019s order and filed a Motion to Dismiss the new indictment under Federal Rule of Criminal Procedure 48(a).<\/p>\n

Bravo Blue is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.<\/p>\n

In her January 22 Memorandum<\/a>\u00a0Judge Howell wasted no time in making political points\u00a0and<\/em>\u00a0a disputed factual finding about an irrelevant matter that was not before her. In her opening paragraph, she quickly veered off the issue before her to volunteer her explanation of why the defendants engaged in criminal conduct, including throwing \u201csmoke bombs<\/em>\u201d at officers. She says that this was<\/p>\n

due to their belief in the falsehood, disseminated by political leaders, and others, that the 2020 presidential election was \u201cstolen,\u201d\u00a0when no evidence of any outcome-determinative election fraud has ever been uncovered, let alone confirmed, by any federal, state, or local government agency, or in any court of law<\/strong>.\u00a0<\/em>(bolded emphasis added)<\/span><\/p><\/blockquote>\n

There are several points worth making here before moving on. The first is her statement that it was a \u201cfalsehood\u201d\u00a0<\/em>for anyone\u00a0<\/em>to voice their opinion that the election was \u201cstolen.<\/em>\u201d There are a number of ways to steal an election other than the old fashion way of\u00a0certifying ballots from people who never voted<\/a>, which is what propelled \u201cLandslide Lyndon\u201d Johnson into the Senate in 1948. Another way to steal an election is the infamous Letter of 51, signed by former intelligence operatives trying to link Hunter Biden\u2019s laptop to a Russian disinformation operation, and the related efforts to censor all reporting about the matter.<\/p>\n

Note that Judge Howell did not say that no election fraud had been \u201cuncovered<\/em>,\u201d only that election fraud had not been proven to be \u201coutcome-determinative<\/em>.\u201d In truth, there have been analyses that the fraudulent Letter of 51 swung the 2020 election to Joe Biden after Biden used it as planned in their last debate to rebut Trump\u2019s statements about the laptop.<\/p>\n

And her characterization of \u201csmoke bombs<\/em>\u201d necessitates a bit of an explanation. Most people think of a \u201cbomb\u201d consistent with its\u00a0common definition<\/a>\u00a0as an explosive device designed \u201cto injure or kill people or to damage or destroy property.\u201d These \u201csmoke bombs<\/em>\u201d were what the military refer to as \u201csmoke grenades.\u201d They do not explode but simply emit smoke. I used them literally every day in Vietnam to mark a pick-up zone for incoming helicopters so they could quickly spot us in a heavily jungled area and gauge the wind direction. When thrown they are about as dangerous as a can of pork and beans. Judge Howell probably just bought the government\u2019s pejorative characterization of these as \u201cbombs,\u201d without bothering either to think or check it out.<\/p>\n

Finally, for the non-legal purists among my readers, it is fundamental that judges are supposed to decide only matters that are before them and should not make factual findings about extraneous matters, especially when those factual findings are based upon an undeveloped record. But that is exactly what Judge Howell did here with her repeated \u201cno election fraud<\/em>\u201d and \u201csmoke bomb<\/em>\u201d memes.<\/p>\n

More shoddy legal work<\/strong><\/p>\n

After a recitation of the seven new felonies that the government had stacked on, Judge Howell spent over four pages attacking the President\u2019s reasons for the pardons and his instructions not to continue prosecutions. It is a nasty piece of shoddy legal work but one that, in the end, is totally irrelevant to the matter at hand, i.e<\/em>., the dismissal of the indictments against DeCarlo and Ochs.
\n\u00a7dismiss-but-the-prosecutors-worked-so-hard” class=”pencraft pc-reset header-anchor offset-top”>She first complained that Trump had instructed the Attorney General to dismiss the case even though the defendants had admitted to criminal conduct and the government had spent a lot of time on the case. She whined that the government \u201cexpend<\/em>[ed]\u00a0significant time and resources<\/em>\u201d identifying, investigating and indicting the defendants, opposing a defense motion and \u201cnegotiating and executing\u00a0<\/em>[!]\u00a0plea agreements<\/em>.\u201d After all that work, the prosecutors then sought to dismiss the indictments<\/p>\n

Think about the utter silliness of that argument: the government spent time on this case, and now all that work will be wasted. Goodgawdalmighty, the injustice surpasses all bounds!<\/p>\n

Is there anyone who thinks that is a unique situation, much less a reason that somehow should result in a denial of the motion to dismiss the indictments? Did the government prosecutors work hard on the Hunter Biden criminal cases, only to have victory snatched away before poor Hunter could be sentenced? Oh, the unfairness of it all! Perhaps Congress should pass an amendment to Federal Rule 48(a)4<\/a><\/span>. Something like this, perhaps:<\/p>\n

Provided, however, that the government may not dismiss an indictment if the defendant is guilty, and the government prosecutors have worked hard on the case.<\/strong><\/span><\/p><\/blockquote>\n

Please excuse the silliness here, but it points out the silliness of Judge Howell\u2019s legal \u201creasoning.\u201d And, at the risk of stating the obvious, absent such an amendment to Rule 48(a), her venting is totally irrelevant to the matter at hand.
\nWading further into a bog of irrelevancies.<\/strong><\/p>\n

Judge Howell spent the first 75% of her \u201cDiscussion\u201d venting about the President\u2019s exercise of discretion to cease prosecuting the defendants. She first said that the government\u2019s motion to dismiss \u201cprovides no<\/em>\u00a0factual basis\u201d (italics in original) for a dismissal. She arrogantly swatted away the government\u2019s stated reason as, \u201conly<\/strong><\/em>\u00a0a presidential proclamation \u2018dated January 20, 2025, \u2026.\u201d (emphasis added)
\nBut next she identified a factual basis for the dismissal, despite her prior statement that there was no such factual basis. She disagreed with the President\u2019s political judgment that the January 6 prosecutions present \u201ca grave national injustice\u201d and whether national reconciliation is needed as a result:<\/p>\n

The only reason provided for this instruction, as set out in the Proclamation’s introduction, is the assertion that this action \u201cends a grave national injustice that has been perpetrated upon the American people over the last four years and begins a process of national reconciliation.\u201d<\/span><\/strong><\/p><\/blockquote>\n

So, this reason (with which she disagreed) was in the Proclamation, not in the Motion itself. Was she really arguing that the government\u2019s Motion to Dismiss is defective because the factual basis for it is stated in the Proclamation, which is expressly cited in that Motion, not in the four corners of the Motion?<\/p>\n

There is clear disagreement between Americans about whether the prosecutions of the J6 defendants, including the disparate sentences and other treatment many received, is \u201ca grave national injustice<\/em>. The President\u2019s view of that is clear and Judge Howell just disagrees with him. But to support her disagreement with the President on this issue, Judge Howell again trotted out the shibboleth that there was \u201cno outcome-determinative election fraud.<\/em>\u201d<\/p>\n

Finally, a sound legal conclusion<\/strong><\/p>\n

Throughout this article I have been stressing that Judge Howell rhetoric and the vituperative \u201canalysis\u201d in her Memorandum are not relevant to the issue at hand. Why is that, you may ask. She answered that for us: After purging most of her frustrations out of her system, on the bottom of the sixth page she finally admitted that she had, \u201cno power<\/em>\u201d \u201cto deny a prosecutor’s\u00a0Rule 48(a)<\/a>\u00a0motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority<\/em>.\u201d \u201cNo power,<\/em>\u201d huh? Well, she could have saved a great deal of time and unnecessary angst if she had said that at the beginning.<\/p>\n

She did explain why she had \u201cno power<\/em>\u201d to deny the President\u2019s decision to dismiss the case, despite her disagreement with the President\u2019s views:<\/p>\n

\u201cIt has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preference<\/em>s.\u201d [Citing\u00a0United States v. Fokker Servs. B.V<\/em>.,<\/span>\u00a0818 F.3d 733, 742<\/a>\u00a0(D.C. Cir. 2016)] \u2026\u00a0<\/span>the government’s view of the public interest does not clearly fall within the types of reasons found to provide legitimate grounds to deny the government\u00a0<\/span>Rule 48(a)<\/a>\u00a0motion to dismiss charges.<\/span><\/em><\/strong><\/span><\/p><\/blockquote>\n

Judge Howell was effectively saying, \u201cForget everything I just wrote bashing the defendants, the President, his Proclamation, and the process generally; none of those reasons allow me to deny the government\u2019s motion to dismiss<\/em>.\u201d<\/p>\n

Who does this President think he is, to tell me to dismiss with prejudice<\/em>?<\/strong><\/p>\n

But with that involuntary confession, Judge Howell was not through. She still had one bullet left in her magazine \u2014 She was willing to dismiss the charges against DeCarlo and Ochs but persisted in making a useless point by refusing the government\u2019s request to dismiss them with prejudice.<\/p>\n

The \u201creasoning\u201d for her denial is wrapped up in her horror that a dismissal with prejudice \u201cwould bar any further prosecution of defendants for their offense conduct.<\/em>\u201d Well, so it would. And that is precisely what the President knows and what he ordered.<\/p>\n

But for Judge Howell, a dismissal with prejudice would be \u201cimproper<\/em>.\u201d Her only support for that claim is that it is \u201cparticularly<\/em>\u201d \u201cimproper<\/em>\u201d because,<\/p>\n

defendants\u2019 own admissions of criminal conduct, including throwing smoke bombs at law enforcement officers who were trying valiantly to prevent rioters from entering the Capitol Building, provides ample basis for criminal prosecution.<\/strong><\/span><\/p><\/blockquote>\n

In Howell\u2019s words, defendants should not be shielded from \u201cany further prosecution<\/em>\u201d because they committed \u201ccriminal conduct<\/em>\u201d! You are no doubt scratching your head and asking yourself, \u201cIsn\u2019t that a reason to grant clemency? Since when did that become a reason\u00a0not<\/strong>\u00a0to grant clemency?\u201d<\/em><\/p>\n

This is one of the many reasons why I put \u201creasoning<\/em>\u201d and \u201canalysis<\/em>\u201d in quotation marks when describing Howell\u2019s arguments in her Memorandum. Her\u2019s is the sort of legal \u201creasoning\u201d that would merit an \u201cF\u201d in a law school\u2019s first-year criminal procedure course.<\/p>\n

Senior status is a form of semi-retirement available to judges who are over 65 and who meet certain other criteria.<\/p>\n

One of the misdemeanors was later dismissed by the government, leaving a total of six pending charges.<\/p>\n

(1)\u00a0<\/strong>alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object\u2019s integrity or availability for use in an official proceeding; or<\/p>\n

(2)\u00a0<\/strong>otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,<\/p>\n

shall be fined under this title or imprisoned not more than 20 years, or both.<\/p>\n

(a) By the Government<\/strong>. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant\u2019s consent.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

D.C. Federal Judges Join the Resistance Overriding the President’s Control of the Department of Justice U.S. District Judge Beryl Howell\u00a0(Nice when PID is provided) Some judges have seized upon a new form of resistance to President Trump\u2019s policies and agenda \u2014 Refusing to dismiss criminal cases with prejudice in accordance with the President\u2019s instructions to … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,9,13],"tags":[],"class_list":["post-107261","post","type-post","status-publish","format-standard","hentry","category-courts","category-enemies-foreign-domestic","category-law-order"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/107261","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=107261"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/107261\/revisions"}],"predecessor-version":[{"id":107262,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/107261\/revisions\/107262"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=107261"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=107261"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=107261"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}