The Hyde Amendment Brief: The Broadview Six

The standard. “[A] determination that a prosecution was ‘vexatious’ for the purposes of the Hyde Amendment requires both a showing that the criminal case was objectively deficient, in that it lacked either legal merit or factual foundation, and a showing that the government's conduct, when viewed objectively, manifests maliciousness or an intent to harass or annoy.” United States v. Knott, 256 F.3d 20, 29 (1st Cir. 2001).

The objective-deficiency half is well-supported. A grand jury's no bill is the textbook indicator that a charge lacks a factual foundation a neutral body will accept, and here the first grand jury no-billed even on instructions the court found “infirm[].” Tr. 20:8–11; 31:25–32:2. The felony was abandoned. Tr. 20:22–25. Judge Fuentes's parallel cases show the office “forced to dismiss upon a conclusion that the case is not provable.” Briggs, slip op.

The obstacle: Knott's “perspective at the time” rule, and the malice half. Knottalso holds that “the court must assess the basis for pursuing charges from the perspective of the government at the time,” and lets the government rely on later-suppressed evidence so long as it had a “good-faith basis” for thinking it admissible. 256 F.3d at 32. And Knott requires “some finding of malice or improper motivation,” not merely an inadequate evidentiary foundation, or “vexatious” collapses into “frivolous.” Id. at 30–31. The malice/harassment showing is the heavier lift on this record.

The response. Knott's retrospective charity is answered by pointing to the inception of the case, not its later evidentiary problems: this is not a charge that looked sound at filing and soured at suppression. The neutral screening body said no at the outset, and the government manufactured the indictment anyway. As for malice or improper motivation, the brief does not overclaim it. The court denied the vindictive-prosecution motion for lack of evidence of outsideinfluence, and the defendants disclaimed U.S. Attorney's Office-level misconduct on that theory. Tr. 24:14–25:3. What the record supports is the objective malice Knottrequires, conduct that, “viewed objectively, manifests … an intent to harass or annoy,” 256 F.3d at 29, inferred from the choice to re-present to the same body after a no bill, to excuse dissenting jurors, and to redact the evidence of both. Vexatious is the hardest of the three prongs on this record, because it demands both halves; the brief flags it as such and rests its weight on frivolous and bad faith.

The standard.“A ‘frivolous action’ is one that is ‘[g]roundless … with little prospect of success; often brought to embarrass or annoy the defendant.’” Gilbert, 198 F.3d at 1298–99 (quoting Black's Law Dictionary 668 (6th ed. 1990)).

The obstacle: the “high bar” and the “inclusive whole.” A prosecution “based on an unresolved but reasonable legal argument cannot be frivolous,” and failure to prevail does not by itself prove frivolousness. Reyes-Romero, 959 F.3d at 96. The position must be “‘foreclosed by binding precedent or … obviously wrong,’” id. (quoting Manzo), assessed across the case “as an inclusive whole,” id. at 92. Gilbertadds a grand-jury-specific caution: failing to present exculpatory evidence to a grand jury is “not a basis” for Hyde fees, “at least not where … the trial jury convicts with knowledge of that evidence.” 198 F.3d at 1304.

The response.Take the “inclusive whole” framing on its own terms. It is the government's framing, and it favors the defendants here. Viewed whole, this prosecution's life-cycle reads: a first grand jury that returned a no bill, on instructions the court later found infirm; repeated re-presentations to the same body until an indictment issued with dissenters gone; redactions that concealed the misconduct from the court; a felony abandoned before trial; a case dismissed with prejudice on the government's own motion; and a district-wide pattern of “not provable” Operation Midway Blitz charges. That whole is the picture of a groundless prosecution pressed anyway, “[g]roundless … with little prospect of success.” Gilbert, 198 F.3d at 1298–99.

Gilbert's grand-jury carve-out does not bind here, and the difference matters. Gilbert withheld fees because the trial jury convicted with knowledge of the withheld evidence; the conviction proved the charge was not groundless. 198 F.3d at 1304. The Broadview Six were never convicted; the case was dismissed with prejudice. The premise that defeated the Gilbertclaimant is absent. (The brief does not rest the frivolous prong on a “failure to present exculpatory evidence to the grand jury” theory at all; the conduct here is affirmative misconduct, vouching, ex parte contact, excusing dissenters, not mere non-disclosure.)

Contested, honestly: a court could find that an office which believed it had probable cause for a Section 111 misdemeanor, Tr. 58:17–20, did not press a “groundless” position even if the felony failed. The response is that the misdemeanor was the remainder of a charging effort the grand jury rejected and the office could not prove, not a freestanding, reasonable prosecution.

The standard. “‘[B]ad faith’ is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; … it contemplates a state of mind affirmatively operating with furtive design or ill will.” Gilbert, 198 F.3d at 1299 (quoting Black's Law Dictionary 139 (6th ed. 1990)); accord Bunn, 215 F.3d at 436. The inquiry is objective; a court “may not ‘delve into the minds and motivations of individual prosecutors’” but asks whether the litigating strategy was “objectively unreasonable in light of the facts and binding case law.” Reyes-Romero, 959 F.3d at 99 (quoting Manzo).

The obstacle: Bunn and the line between negligence and bad faith. The Fourth Circuit held that a prosecutor's failure to listen to a backup audio recording of grand-jury proceedings before charging was negligence, not bad faith, because the prosecutor had a “reasonable basis” to charge: a court reporter's transcript and the foreman's confirming testimony. Bunn, 215 F.3d at 436–37. The Hyde Amendment “places a daunting obstacle before defendants.” Id. at 436 (quoting Gilbert).

The response: active concealment is the “furtive design” Gilbert names. Bunn is a case about inaction, a prosecutor who did not check a third source. This record is about action: the government reviewed the grand-jury transcripts, saw the vouching, the ex parte contacts, and the excusing of dissenting jurors, and then chose what to hidebefore handing the transcripts to the court. Tr. 23:7–13; 30:4–6. That is not a failure to investigate. It is a decision to conceal the very conduct that grounded the indictment. The District Court named it on the record: “What you do not do is hide it.” Tr. 23:13. Hiding the misconduct that obtained the charge is “the conscious doing of a wrong … with furtive design,” Gilbert, 198 F.3d at 1299, and, at the floor, the “reckless disregard for the truth” Gilbert folds into bad faith (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)).

The objective test helps here. A court need not find that any individual AUSA harbored ill will; it asks whether the strategy (re-presenting after a no bill, excusing dissenters, and redacting the record of both before in camera review) was “objectively unreasonable in light of the facts and binding case law.” Reyes-Romero, 959 F.3d at 99. Redacting from a court the very misconduct the court asked to review is objectively unreasonable on its face.

The hardest counter, confronted directly: the United States Attorney's disclaimer. The United States Attorney stated, on the record, his “very sincere belief … that no prosecutor acted intentionally in misleading you, and that there was … no deliberate misconduct.” Tr. 50:17–20. And Reyes-Romerowarns that a Rule 48(a) dismissal “does not inherently constitute bad faith.” 959 F.3d at 99–100. These are the bad-faith prong's real weaknesses, and the brief does not paper over them.

Three points in response. First, the test is objective; the United States Attorney's sincere subjective belief about his line prosecutors' intent does not control whether the position, the redacted, re-presented, dissenter-purged path to indictment, was objectively in bad faith. Reyes-Romero, 959 F.3d at 99. Second, the disclaimer is narrower than it sounds: it speaks to intent to mislead the court, and the United States Attorney himself said he became aware of the vouching and ex parte conduct only at the dismissal stage. Tr. 51:5–12; 52:23–53:6. The conduct inside the grand jury is not cured by the front office's later good faith. Third, the Reyes-RomeroRule 48(a) caution addresses a dismissal taken for ordinary “litigation risk”; this dismissal-with-prejudice followed in-camera findings of conduct the court had “never seen” and a concealment the court called “the most problematic” part of the record. Tr. 22:13–18; 23:9–10. That is not benign prosecutorial discretion.

Bad faith is, candidly, the prong that requires the most inference about state of mind, even under an objective test. But it is also the prong with the most affirmative, on-the-record conduct behind it: the redactions, the responsibility AUSA Hogan accepted for them, and the court's own “trust has been broken” finding. Tr. 23:25; 30:4–6.

The Hyde Amendment “expressly adopts ‘procedures and limitations’ from the EAJA,” and that reference “incorporates the … limitations contained in EAJA § 2412(d),” including the net-worth ceilings: no recovery if an individual's net worth exceeds $2 million (or a corporation's exceeds $7 million with more than 500 employees), and an hourly-rate cap of $125. Knott, 256 F.3d at 33–34 (citing 28 U.S.C. § 2412(d)(2)(A)–(B)). Two consequences. First, each defendant must make an individual net-worth showing; for natural persons without significant assets this is not a bar, but it is per-defendant. Second, the EAJA-incorporation holding is the First Circuit rule (followed by the Eleventh Circuit in Aisenberg); the Supreme Court has not decided it, and the brief should not assume it binds the Seventh Circuit. The fee recovery, if won, is real but capped: fees and litigation expenses, not damages.

The statute denies fees if “special circumstances make such an award unjust.” 18 U.S.C. § 3006A statutory note. The government's likely “special circumstances” argument is the United States Attorney's prompt self-correction: he dismissed the felony within roughly 24 hours of learning of the conduct, issued office-wide guidance, met with the chief judge, and ultimately moved to dismiss the misdemeanor with prejudice. Tr. 51:5–52:2; 53:1–6. That is a genuine equity, and it is the government's strongest non-merits card. The response is that voluntary correction afterthe misconduct produced an indictment and dragged six defendants toward a trial does not make a fee award “unjust”; it confirms the position was infirm. The harm the fees compensate (the cost of defending the manufactured charge) was already inflicted before the correction.

Two separate bodies of law must not be confused. A civil suit for damages against the individual prosecutors, for malicious or retaliatory prosecution under § 1983/Bivens, runs into absolute prosecutorial immunity. Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (“in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983”). Under Imbler, the advocacy-function misconduct here could not ground personal-damages liability against the AUSAs; such claims would run, if at all, against the federal agents/investigators(and would require identifying the inducing official and pleading absence of probable cause, answered here by the first grand jury's no bill, under Hartman v. Moore, 547 U.S. 250 (2006), with Imbler's advocate/investigator line and Armstrong's rigorous selective-prosecution discovery bar in play).

None of that touches the Hyde Amendment. Imbler immunity is a defense to personal damages suits. The Hyde Amendment is a statutory waiver of sovereign immunitythat targets “the position of the United States,” not a damages claim against any prosecutor. Imbler does not bar it. Imbleritself notes that absolute immunity leaves intact “professional discipline” and criminal liability under 18 U.S.C. § 242 as accountability channels, 424 U.S. at 429, consistent with the District Court's reserved sanctions/ethics track, Tr. 25:19–25, none of which is the Hyde fee remedy. Keep the two distinct: immunity does not defeat the fee claim against the United States.

The project's companion brief argues that the Broadview Six qualify under the Anti-Weaponization Fund's own stated standards. (The posture there is “fine, by your own logic”: take DOJ at its stated word and apply it, without endorsing the Fund's premises.) That argument is now conditional in a second sense: on May 29, 2026, a federal court temporarily barred the government from creating the Fund or paying any claims, and on June 2 the Acting Attorney General told Congress the administration is “not moving forward with the fund. Period.” No commission was seated, no claims were accepted, and no money was paid. As a practical matter, the Hyde Amendment — a standing federal statute no administration can withdraw by press conference — is the route that remains open, and the Broadview Six's counsel filed a Hyde fee motion on June 2, 2026 (docket entry 201, the joint motion for Rabbitt, Abughazaleh, Martin, and Straw; Catherine Sharp filed her own on June 5). The court is treating the June 2 filing as a protective motion, with the government's response due July 7 and replies July 21.

For the conditional world in which the Fund revives, one load-bearing caution must still be flagged: the Fund's settlement carries a § V.B waiver. Accepting Fund money trades away other relief, including the right to sue, which can include the Hyde fee route. The two are best understood as alternative paths to making the defendants whole, not as remedies a claimant can stack.

This means the choice is strategic, not free. A Hyde claim is a motion, often with discovery, frequently with an evidentiary hearing, and almost always with a government appeal if the defendant wins; it yields fees and costs, capped, per defendant. The Fund route — if it ever operates — would be faster, would reach damagesbeyond fees (relevant, for Kat specifically, to a documented congressional-primary loss mid-prosecution that fees cannot reach), and would cover all six under one common showing; but the waiver forecloses the Hyde route once Fund relief is accepted. A claimant cannot take the Fund's money and keep the lawsuit. The honest framing is: the Hyde Amendment is the route for defendants who want to make the United States pay for the prosecution as litigants, and it is available so long as they have not signed away the right to sue.