In August, several prominent conservatives who have served as federal judges and prosecutors joined an extraordinary amicus brief, asking the U.S. Supreme Court to review Shaygan v. United States. Among the signatories were Michael McConnell, who is frequently mentioned as a potential Supreme Court nominee in a Republican administration, Paul Cassell, a well-known figure in victims’ empowerment circles, and Solomon Wisenberg, who screened potential judicial nominees for President Reagan. If the Supreme Court grants the petition, it will likely spark a national discussion about prosecutorial misconduct—and the thorny question of how to remedy it without vitiating prosecutorial discretion.

The Shaygan case concerns a famous rider that was attached to an appropriations bill by Republican Henry Hyde of Illinois in 1997. The rider, known as the “Hyde Amendment,” provides that a court may order federal prosecutors to pay attorney’s fees to defendants if “the court finds that the position of the United States was vexatious, frivolous, or in bad faith.”

The dispute in Shaygan concerns the words “the position of the United States.” Do the words mean that attorney’s fees may only be ordered when the government prosecutes without probable cause? Or may the fees be ordered if prosecutors have probable cause, but use abusive tactics in the course of their investigation?

The Supreme Court is being asked to consider the question through the case of Ali Shaygan, a Florida physician. When a patient of Dr. Shaygan’s was found dead from a drug overdose, authorities suspected that Dr. Shaygan may have been improperly prescribing medications. Federal prosecutors originally filed 23 charges against Dr. Shaygan, and then later used a superseding indictment to file 141 charges. The litigation was bitterly adversarial. The details of the prosecutors’ tough tactics are too long to relate here, but suffice to say, the prosecutors themselves acknowledged misconduct, including a “fail[ure] to disclose discovery materials from the investigation.”

Ultimately, Dr. Shaygan was acquitted on all 141 charges. The district court ordered prosecutors to pay over $600,000 in attorney’s fees—fees which of course come ultimately from taxpayers. The Eleventh Circuit reversed the district court’s order of attorney’s fees, holding that whatever tough—or even unlawful—tactics the government may have used, prosecutors had probable cause to pursue the case, and the Hyde Amendment is only a remedy for those cases in which probable cause does not exist, i.e. “the position of the United States is vexatious, frivolous, or in bad faith.”

On July 6th, Dr. Shaygan petitioned the Supreme Court for certiorari.

The government is arguing, essentially, that grand juries serve as a reasonably effective check on meritless prosecutions. Dr. Shaygan is less convinced. He seems more inclined to agree with the well-known observation that a prosecutor could get a grand jury to indict a ham sandwich. To Dr. Shaygan, the Hyde Amendment exists as an additional—and necessary—check.

It is an interesting case, and one that has already drawn considerable attention. In addition to the judges and prosecutors mentioned above, several prominent groups have filed amicus briefs asking the court to grant certiorari: the Association of American Physicians and Surgeons, the Constitution Project, and the National Association of Criminal Defense Lawyers.