On October 1, U.S. District Judge April Perry declined, for now, to appoint a special prosecutor in the collapsed “Broadview Six” case, but she did something less visible and arguably more consequential: she announced that the government must answer a list of issues about its own conduct, to be set by the court, under oath and subject to the penalties of perjury. The case against the six protesters is gone. The question of how a federal court may investigate the prosecutors who brought it is not.
The mainstream framing of this story has been a Chicago scandal. The more durable issue is structural. When a federal court suspects that the executive branch’s lawyers were not candid with it, who is entitled to investigate, and who is entitled to prosecute? The Justice Department says the answer is the Justice Department. The defense says that cannot be right. The judge has asked for briefing on the point, and the dates are now on the docket.
What the Court Actually Ordered
The primary document is the court’s October 1 minute entry (Dkt. 270) in United States v. Rabbitt et al., No. 1:25-cr-00693 (N.D. Ill.). According to the entry, as RSN read it, the court:
- granted the former defendants’ motions for attorneys’ fees and expenses (Dkts. 201, 210), and denied a request for discovery on those fee claims (Dkt. 206);
- granted former prosecutor Sheri Mecklenburg’s petition to intervene (Dkt. 261), which allows her to challenge any special-prosecutor appointment or sanctions;
- denied in part the defense requests for an evidentiary hearing and discovery (Dkt. 226) and for a special prosecutor (Dkt. 227), meaning the former defendants will not now receive discovery or an adversarial hearing, while the court will decide whether those steps are warranted after receiving additional evidence from the government;
- gave the government until November 2 to brief whether Federal Rule of Criminal Procedure 42 is constitutional as applied here, and appointed University of Chicago law professor William Baude as amicus curiae to argue the opposing side, with his brief due December 2.
The entry does not find that anyone committed misconduct or contempt. It sets a process. Press accounts of the hearing add the texture. According to Bloomberg Law, Judge Perry said she was not drawing immediate conclusions but that “several aspects of this prosecution were very flawed,” and that her “sole focus” is “lack of candor, concealment of material facts, or other misconduct that occurred before me.” The Chicago Sun-Times live coverage recorded her saying that responses to her list of issues could be live or written but must be “under oath, under penalties of perjury,” and that “I’m not reaching any conclusions today about what occurred.” WTTW reported her view that the office’s promised training and reforms were “not very compelling,” because “training does not fix willful or intentional misconduct.”
The Allegations, and Whose Allegations They Are
It matters to separate what has been proven from what has been argued. Almost everything in the record below is a party’s position, not a finding.
The former defendants’ June 16 motion (Dkt. 226) asks for targeted discovery, an evidentiary hearing, and an independent attorney to investigate. It alleges that the government “redacted the portions of the transcripts showing that severe and repeated prosecutorial misconduct” occurred, and that it made “repeated misrepresentations both to Defense counsel and to the Court.” It quotes the court’s May 21 remark that “that trust has been broken.” It also asks the government to search for communications between the Chicago U.S. Attorney’s Office and Justice Department or Homeland Security personnel, including an official named Aakash Singh. That communications theory is the defense’s. The motion does not establish it, and nothing in the record RSN reviewed does either.
The government’s August 4 opposition (Dkt. 247), signed by U.S. Attorney Andrew Boutros and Assistant U.S. Attorney Nathaniel Whalen, argues that this is not one of the “rare situations when a prima facie case of criminal contempt has been made out.” It says the court should not “open a broad ranging criminal proceeding into another branch of Government,” notes that the matter has been referred to the Justice Department’s Office of Professional Responsibility, and says “OPR will conduct internal investigations into what happened here.” In a footnote it argues that appointing “another attorney” to prosecute contempt “raises separation of power concerns,” and asks for the chance to brief that issue. At the hearing, according to Bloomberg Law, the government argued it would be unconstitutional to appoint a prosecutor who does not ultimately answer to the Attorney General. Judge Perry replied, “As a practical matter, how would you envision that working?”
Mecklenburg’s own filing complicates any simple account. In her September 24 motion she says she formally left the case before a Washington detail in February 2026, did not learn of the May 21 hearing until a reporter told her, and was told by the U.S. Attorney’s Office that, as a Justice Department employee, she could not file on her own behalf; she retired effective the day she filed. She acknowledges that she should not have vouched for the allegations in the October 9 grand jury session and should not have interacted with two grand jurors outside the room, though she says those contacts were not substantive and that she reported them. She denies that she “outright lied,” says a statement to the grand jury about video footage rested on the two videos presented to it, and says she re-presented the case after a no-bill because the U.S. Attorney’s front office instructed her to. She also says she did not excuse any juror. These are her assertions, offered to a court that has not tested them. They do, however, shift the central factual dispute from one prosecutor toward the chain of command, which is why the court’s sworn process matters.
The Constitutional Question Underneath
The government’s separation-of-powers objection is not frivolous, and a serious reader should say so. Control over federal prosecution sits with the executive branch, and the principle that courts do not select who prosecutes is a real one. A court that appoints its own prosecutor against the executive’s wishes is doing something that should be rare.
But the text and precedent cut the other way on contempt specifically. Rule 42(a)(2) provides that “the court must request that the contempt be prosecuted by an attorney for the government,” unless “the interest of justice requires the appointment of another attorney,” and that “if the government declines the request, the court must appoint another attorney to prosecute the contempt.” In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), the Supreme Court held that district courts may appoint private attorneys to prosecute criminal contempt, reasoning that the judiciary needs an independent means of vindicating its own authority, while insisting that courts first ask the government to act and that any appointee be disinterested. The practical difficulty Judge Perry put to the government is the obvious one: if the executive both investigates its own lawyers and holds a veto over any prosecution of them, the contempt power would reach everyone except the people most likely to be accused of defying a court on the government’s behalf.
Professor Baude’s role is to press the opposing case, since the former defendants no longer have a live stake. What he and the government file will shape whether Rule 42 operates as written when the target is the Justice Department.
Why This Is Not a Partisan Story
The prosecution arose from protests outside the Broadview immigration facility during the federal enforcement push known as Operation Midway Blitz, and readers will have their own views of both. Those views are beside the point of the institutional question. Conservatives have long argued that no institution should be its own judge: not a school board, not a university disciplinary panel, not a state bar. RSN applied that standard to a Democratic district attorney in its coverage of Philadelphia’s Larry Krasner, and to the current administration when a court found that the Trump–IRS lawsuit lacked a genuine adversary. Here, the office whose candor is in question is a U.S. Attorney’s office serving in the current administration. The principle does not bend to fit the officeholder. RSN’s earlier coverage of the grand jury record addressed the case’s collapse; this is the stage that follows, where the judiciary decides what it may do about it.
What Is Not Established
No court has found that any prosecutor committed contempt. Judge Perry has said she is reaching no conclusions. The claim that Washington officials shaped the Chicago prosecution is a defense theory. The government has asserted privilege over some materials; the judge told the parties that “the constant repetition of ‘privilege’ indicates to me there is something out there that is relevant material,” which is an observation about relevance, not a finding of wrongdoing. Whalen told the court, per the Sun-Times, that he did not know whether the assistant U.S. attorneys involved would invoke the Fifth Amendment. Mecklenburg’s counsel said he expects she would testify if asked, though the two had not discussed it in detail. Boutros’s office maintains that the problems were “mistakes” addressed by new training and reforms, and that OPR is the proper forum.
What to Watch
Two dates now structure the matter: November 2, when the government’s Rule 42 brief and the joint fee-motion status report are due, and December 2, when Professor Baude’s brief is due. Meanwhile, the list of issues the court said it will set for sworn response will show how much the Justice Department is prepared to put on the record under penalty of perjury, and whether privilege claims narrow or widen the gap. If the court ultimately concludes that a prima facie case exists, the government will have to answer the question it has so far avoided: if not an outside attorney, then who?
The accountability test is simple to state. An institution that investigates itself should be able to show its work to someone who does not report to it. A federal judge has now asked to see it, under oath.
Sourcing note: Court filings cited here (Dkts. 226, 247, 261, 270) were read through a text-extraction tool and quoted from that text; page-level quotations should be checked against the linked PDFs. Hearing remarks are as reported by Bloomberg Law, the Chicago Sun-Times and WTTW and are attributed accordingly. The Rule 42 and Young descriptions follow the rule text and the Supreme Court’s opinion as published by Cornell Law School and Justia.