Gems keep coming out of the papers in the battle over the discovery in Jay Michaud’s child porn case. It’s already come out that the government doesn’t trust prosecutors enough to tell them the truth, because they might turn to the dark side one day and become defense lawyers. And the government’s been lying to judges because it’s just too easy, since judges will believe anything they say.

But what happens when a judge orders the government to disclose something that government would prefer to keep to itself? Brad Heath provides the answer:

The FBI has said it will not comply with a court order to reveal its Tor Browser exploit “under any circumstances.” pic.twitter.com/kAfXR4Lf8K — Brad Heath (@bradheath) April 25, 2016

This is worthy of a repeat:

Here, the Government has already signaled its decision. It has stated that the FBI will not comply with the Court’s discovery order under any circumstances…

In the realist world of the legal system, the “solution” to the government’s refusal to comply is dismissal of the case. In other words, Michaud walks because the FBI chooses to tell the judge “nope, ain’t gonna do it.” And for Michaud and his lawyer, that’s a pretty good outcome, so they walk away happy.

But that doesn’t do much for the rest of us. Consider the interests at stake: Let’s say the defendant committed Crime Everyone Hates in the first degree. The public has an interest in seeing the defendant prosecuted, convicted (we’re assuming he’s guilty) and sentenced (we’re assuming he needs to be locked up or he’s going to commit Crime Everyone Hates on you and yours).

But defendant walks because the Government has decided that its secrecy trumps someone else’s becoming a victim of Crime Everyone Hates.

On a different level, we have the “respect for the law” thing, where everyone, including the government and even its more powerful child, the FBI, is supposedly subject to both the laws of this nation and the orders of a branch of government, delightfully called the judiciary. This is important enough that it will put your sorry butt in prison for a lifetime or two, so we know this is a very serious concern. Judges put on their very serious face and talk sternly to defendants about their not respecting the law.

But when the government, by its untrustworthy lawyer, informs the judge that it has told the FBI of the court’s order, and, it’s sorry to say, the FBI says, “nope, not under any circumstances,” what’s a judge to do? The judge has no army to raid the FBI office and make those nasty agents comply. The judiciary is the least dangerous branch, which means that if it doesn’t smile at the armed branches, it’s totally impotent.

Remember that serious-faced judge, talking sternly at you? He can do that because the armed guys in ill-fitting suits are only too happy to back up his words with their bludgeons. Hell, they’d do it for kicks on a boring day. But when the judge’s stern words fly in the opposite direction, then the fragility of the system is revealed.

Here, the Government has already signaled its decision. It has stated that the FBI will not comply with the Court’s discovery order under any circumstances…

Whatcha gonna do about it, judge? We’re awash in platitudes about “justice,” which, like religion, are there to keep the groundlings pacified and compliant, but the guy in the robe has no army to make the FBI do anything.

The realist judge shrugs, because any other response shows he’s got no power to make them comply. He tells his law clerks, “quick, come up with some boilerplate black letter law that rationalizes why they can talk to me this way, tell me they’re not gonna do it under any circumstances, so I don’t look like an impotent fool. QUICK!!!” And the law clerks will scurry, because they’re thinking about the Biglaw partnership that will pay for their Ferrari some day. A judicial clerkship has its benefits, and they don’t want to piss off their benefactor.

The solution will be found in the most severe sanction a judge can impose on the government, dismissal! Yes, that’s the ticket. Just dismiss the case and that will create the appearance of a powerful and just legal system, one that won’t take any shit from the FBI.

And so the order dismissing the case against the defendant who committed the Crime Everyone Hates in the First Degree is issued, the defendant and his lawyer walk away happy, defense lawyers and media applaud the court’s assertion of hegemony over the guys with the guns, and we believe in the legal system for one more day.

Except the guy who committed the Crime Everyone Hates is free to commit it again on someone’s kid. The lies told to prosecutors, who repeat them to judges, continue to be told. Forget about the lies told to defendants and their lawyers, since no one cares about them anyway, due process being honored only in the breach. And the government, by its most powerful sons, continues to do as it pleases despite the platitudes about this being a nation of laws, not men with guns.

Why does this happen? Because the alternative reveals that the system can only work one way, where the various branches of government don’t push each other too hard, to the point where a clash of power is unavoidable. When that happens, the cracks are revealed for all to see, that the legal system works only when the guys with guns want it to work, and the stern-voiced jurists are only as powerful as the guys with guns allow them to be.

There’s an old joke about which part of the body rules. The punch line is that it’s the asshole. When the FBI takes the position that it will not comply with an order of the court under any circumstances, it becomes plain that this joke ought to be carved into the lintel over the courthouse door where “Equal Justice Under Law” once was. Are you good with this, Judge?