D.C. Federal Judges Join the Resistance

Overriding the President's Control of the Department of Justice

U.S. District Judge Beryl Howell

Some judges have seized upon a new form of resistance to President Trump’s policies and agenda — Refusing to dismiss criminal cases with prejudice in accordance with the President’s instructions to the Attorney General. Three of the eight federal district judges in D.C. who are on senior status,¹ joined by one of their colleagues, have tried to undercut Presidential authority in this manner.

This article will consider one such case before Senior Judge Beryl A. Howell. Judge Howell has frustrated the President’s 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, “It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.” In her explanatory Memorandum and Order (“Memorandum”) 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.

The Presidential Amnesty Proclamation

The date he was inaugurated, President Trump a signed a Proclamation that essentially granted amnesty for all “offenses related to events that occurred at or near the United States Capitol on January 6, 2021.” 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 “to time served as of January 20, 2025,” or were granted a “full, complete and unconditional pardon” for their offenses.

However, there were other defendants who were still subject to pending indictments for which there were not yet final convictions. For these, the President’s Proclamation directed the Attorney General “to pursue dismissal with prejudice to the government of all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021.” (bolded emphasis added)

The “dismissal with prejudice to the government” 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.

The Case Against DeCarlo and Ochs

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.

DeCarlo and Ochs, originally were indicted for seven alleged federal crimes, two felonies and five misdemeanors.² One of the felonies was for “Obstruction of an Official Proceeding” (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. §1512 (c).³ That statute was enacted in 2002 to combat the corporate abuses and excesses that led to the Enron scandal.

In September 2022, the defendants and the government entered into a plea agreement. The defendants agreed to plead guilty to the §1512 Obstruction count (which they had previously sought to dismiss) and the government agreed to dismiss all remaining charges.

On December 9, 2022, Judge Howell sentenced the defendants to 48 months in prison on the Obstruction count.

A year-and-a-half later, however, things changed. On June 28, 2024, in Fisher v. United States, the Supreme Court ruled that the obstruction provisions of §1512(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’s and Och’s criminal convictions.

At this point, the only count upon which they had been convicted was barred by the Supreme Court’s Fisher decision 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.

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.

The prosecutors let more than two months go by before they filed new charges. Doubtlessly miffed at both the Supreme Court’s reversal of the only charge for which they had secured a conviction, and at 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 seven felonies. It was, in short, a vindictive “We’ll-teach-you-by God” carpet-bombing.

Five days later President Trump was inaugurated and promptly issued his Proclamation and ordered the Department of Justice to pursue a “dismissal with prejudice.” DOJ complied with the President’s order and filed a Motion to Dismiss the new indictment under Federal Rule of Criminal Procedure 48(a).

The Memorandum and Order – An Irrelevant Political Screed.

In her January 22 Memorandum Judge Howell wasted no time in making political points and a 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 “smoke bombs” at officers. She says that this was

due to their belief in the falsehood, disseminated by political leaders, and others, that the 2020 presidential election was “stolen,” when 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. (bolded emphasis added)

There are several points worth making here before moving on. The first is her statement that it was a “falsehood” for anyone to voice their opinion that the election was “stolen.” There are a number of ways to steal an election other than the old fashion way of certifying ballots from people who never voted, which is what propelled “Landslide Lyndon” 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’s laptop to a Russian disinformation operation, and the related efforts to censor all reporting about the matter.

Note that Judge Howell did not say that no election fraud had been “uncovered,” only that election fraud had not been proven to be “outcome-determinative.” 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’s statements about the laptop.

And her characterization of “smoke bombs” necessitates a bit of an explanation. Most people think of a “bomb” consistent with its common definition as an explosive device designed “to injure or kill people or to damage or destroy property.” These “smoke bombs” were what the military refer to as “smoke grenades.” 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’s pejorative characterization of these as “bombs,” without bothering either to think or check it out.

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 “no election fraud” and “smoke bomb” memes.

More shoddy legal work

After a recitation of the seven new felonies that the government had stacked on, Judge Howell spent over four pages attacking the President’s 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., the dismissal of the indictments against DeCarlo and Ochs.

Dismiss? But the prosecutors worked so hard.

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 “expend[ed] significant time and resources” identifying, investigating and indicting the defendants, opposing a defense motion and “negotiating and executing [!] plea agreements.” After all that work, the prosecutors then sought to dismiss the indictments.

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!

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. Something like this, perhaps:

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.

Please excuse the silliness here, but it points out the silliness of Judge Howell’s legal “reasoning.” 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.

Wading further into a bog of irrelevancies.

Judge Howell spent the first 75% of her “Discussion” venting about the President’s exercise of discretion to cease prosecuting the defendants. She first said that the government’s motion to dismiss “provides no factual basis” (italics in original) for a dismissal. She arrogantly swatted away the government’s stated reason as, “only a presidential proclamation ‘dated January 20, 2025, ….” (emphasis added)

But 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’s political judgment that the January 6 prosecutions present “a grave national injustice” and whether national reconciliation is needed as a result:

The only reason provided for this instruction, as set out in the Proclamation's introduction, is the assertion that this action “ends a grave national injustice that has been perpetrated upon the American people over the last four years and begins a process of national reconciliation.”

So, this reason (with which she disagreed) was in the Proclamation, not in the Motion itself. Was she really arguing that the government’s 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?

There is clear disagreement between Americans about whether the prosecutions of the J6 defendants, including the disparate sentences and other treatment many received, is “a grave national injustice. The President’s 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 “no outcome-determinative election fraud.”

Finally, a sound legal conclusion

Throughout this article I have been stressing that Judge Howell rhetoric and the vituperative “analysis” 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, “no power” “to deny a prosecutor's Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority.” “No power,” huh? Well, she could have saved a great deal of time and unnecessary angst if she had said that at the beginning.

She did explain why she had “no power” to deny the President’s decision to dismiss the case, despite her disagreement with the President’s views:

“It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.” [Citing United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016)] … 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 Rule 48(a) motion to dismiss charges.

Judge Howell was effectively saying, “Forget 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’s motion to dismiss.”

Who does this President think he is, to tell me to dismiss with prejudice?

But with that involuntary confession, Judge Howell was not through. She still had one bullet left in her magazine — She was willing to dismiss the charges against DeCarlo and Ochs but persisted in making a useless point by refusing the government’s request to dismiss them with prejudice.

The “reasoning” for her denial is wrapped up in her horror that a dismissal with prejudice “would bar any further prosecution of defendants for their offense conduct.” Well, so it would. And that is precisely what the President knows and what he ordered.

But for Judge Howell, a dismissal with prejudice would be “improper.” Her only support for that claim is that it is “particularly” “improper” because,

defendants’ 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.

In Howell’s words, defendants should not be shielded from “any further prosecution” because they committed “criminal conduct”! You are no doubt scratching your head and asking yourself, “Isn’t that a reason to grant clemency? Since when did that become a reason not to grant clemency?”

This is one of the many reasons why I put “reasoning” and “analysis” in quotation marks when describing Howell’s arguments in her Memorandum. Her’s is the sort of legal “reasoning” that would merit an “F” in a law school’s first-year criminal procedure course.

1. Senior status is a form of semi-retirement available to judges who are over 65 and who meet certain other criteria.

2. One of the misdemeanors was later dismissed by the government, leaving a total of six pending charges.

3. (c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

4. (a) By the Government. 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’s consent.