A prosecutor in President Donald Trump’s Justice Department, ordered to testify in a judge’s criminal probe of his office, raised the prospect of having his lawyer cross-examine his own boss.
Assistant U.S. Attorney William Hogan made the request Thursday in a motion filed by his own lawyer, Shelly Kulwin, asking to join the case on his own behalf.
On Monday, U.S. District Judge April Perry ordered Hogan, two other prosecutors, and their boss, U.S. Attorney Andrew Boutros, to testify under oath Nov. 16 about whether they made false statements to her. Perry’s probe grew out of the collapse in May of the “Broadview Six” case against protesters of Trump’s immigration crackdown in Chicago.
The DOJ prosecutor’s attorney seeks the judge’s answer about whether her client can have his legal team take an active part in the case.
“[Hogan] seeks clarification as to who will be questioning the witnesses at that hearing; whether [his] counsel will be allowed to cross-examine all such witnesses and, if necessary, present his own evidence,” Kulwin wrote.
Perry’s order lists Boutros, the Trump-appointed U.S. Attorney for the Northern District of Illinois, first among those witnesses.
“[I]t is quite possible that the government’s interests, as well as some of the other proposed witnesses’ testimony, ‘may not be aligned’ with his,” Kulwin wrote, adding that Hogan does not know what the other prosecutors “or the United States Attorney” will say.
If Perry agrees, a hearing meant to test what Boutros’ office told her could pit its own prosecutors against one another, with the U.S. attorney taking questions from a subordinate’s lawyer.
Perry’s first request for records targeted a statement Hogan signed.
“To be crystal clear, this specifically includes anyone in the White House and all components and offices of Main Justice,” Hogan wrote in a March 30 filing, denying any outside communications about charging decisions. Main Justice is the department’s Washington headquarters.
Perry wrote Monday that the government’s later “caveats and carve-outs” indicate that statement “was false.”
The department has said the statement was “true as it relates to pre-charging decisions,” according to her order.
Sheri Mecklenburg, the former lead prosecutor in the case, broke with Boutros in a Sept. 24 letter announcing her retirement and calling herself “a convenient target to be scapegoated.”
“[A]s a current DOJ employee, I am prohibited from filing anything to defend myself and will be disciplined and/or terminated if I do so,” Mecklenburg wrote, describing what his front office told her lawyer. Boutros’ office did not immediately return a request for comment on the letter, The Associated Press reported.
“[T]he stakes are very personal and very high, and I don’t think the U. S. Attorney’s Office necessarily will be aligned with each of the individual [prosecutors],” Perry said Oct. 1 as she let Mecklenburg join the case, according to a transcript excerpt in Hogan’s motion. She promised the same for any other prosecutor who asked, and Hogan’s motion quotes that promise.
By her account, Mecklenburg had to retire to make her case to Perry. Hogan, who still works for Boutros, is making his while on the job.
While the prosecutors under scrutiny hire their own lawyers, the department’s leadership is arguing that Perry’s inquiry should go no further and that the president could end any criminal case it produces.
“For the avoidance of doubt, the United States has not agreed to provide any information,” Associate Attorney General Stanley Woodward Jr., the department’s third-ranking official, wrote in an Oct. 30 filing. Perry’s order notes he stepped in hours after the two Chicago prosecutors handling the office’s side asked to withdraw.
“It is likewise well-established that the pardon power extends to criminal contempt,” Woodward wrote, citing the president’s power to “direct that the criminal be prosecuted no further.” Criminal contempt is the crime of defying or obstructing a court.
Under a Thursday order, the department has until 2 p.m. Monday to turn over the records Perry requested about its outside communications. She has said her findings will bear on “potential sanctions or criminal contempt.”
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