The effect of the omission, though, may have been to mislead the district court. See In re United States, 398 F.3d 615, 619 (7th Cir. 2005) (per curiam) ("When making ex parte applications a litigant must alert the tribunal to authority, known to it, that may be inconsistent with its legal position, for there is no adversary to do that job."). On November 9, 2004, without notifying the parties and without any simultaneous explanation of why the anonymous letter presented a plausible Rule 6(d) or (e) violation, the district judge directed a magistrate judge to interview "the members of the grand jury whose deliberations were purportedly obstructed," as alleged in the letter.

In determining whether a grand jury disclosure order was properly entered, an abuse of discretion standard is applied. In re Grand Jury Proceedings, 942 F.2d 1195, 1198 (7th Cir. 1991) ( Blair); see also In re United States, 398 F.3d 615, 619 (7th Cir. 2005). BACKGROUND

See also, e.g., In re United States , 398 F.3d 615 (7th Cir. 2005). That’s a good description of the order requiring the Chairman and two Commissioners, appointed by the President on advice and consent of the Senate, to appear and reveal what lies behind their published words. Many decisions hold that mandamus is appropriate when a district judge inappropriately compels a ranking federal official to appear personally rather than by counsel.

The rule also clearly exempts ex parte hearings from the notice provisions. JDC's reliance on In re United States, 398 F.3d 615, 619 (7th Cir. 2005), to support its argument that lack of notice is legal error is misplaced. The court in that case affirmatively upheld the district court's right to allow ex parte proceedings without providing notice to any other party.

]" Mot. at 1. The Court finds instructive the opinion of the United States Court of Appeals for the Seventh Circuit in In re United States, 398 F.3d 615 (7th Cir. 2005). In that case, a district court authorized federal prosecutors to turn over grand jury materials regarding a criminal defendant to the estate of the defendant's alleged victim for the estate's use in subsequent civil litigation.

Non-summary criminal contempt is handled by a prosecutor. In re U.S., 398 F.3d 615, 618 (7th Cir. 2005) ("In the rare situations when a prima facie case of criminal contempt has been made out, and the contempt is not committed in the judge's presence (and thus amenable to summary disposition), the judge must turn the matter over to a prosecutor rather than assume an inquisitorial role inappropriate to the Judicial Branch") (emphasis added); accord Romero v. Drummond Co., Inc., 480 F.3d 1234, 1242 (11th Cir. 2007) (Federal court may punish contemptuous conduct that occurs outside its presence only after giving notice of essential facts constituting the charged criminal contempt, requesting that the contempt be prosecuted by attorney for government, and affording other procedural protections). Here the U.S. Attorney recommends that the matter be pursued through a show-cause hearing.

Courts should not risk becoming monitors of the wisdom and soundness of Executive action.") (cleaned up); In re United States , 503 F.3d 638, 641 (7th Cir. 2007) ("[A] judicial effort to supervise [a prosecutor's] process of reaching a decision intrudes impermissibly into the activities of the Executive Branch of government."); id. ("Judges in the United States resolve the parties' disputes rather than initiate their own factual inquiries on issues that the parties have not contested; that's a major difference between adversarial and inquisitorial systems."); In re United States , 398 F.3d 615, 618 (7th Cir. 2005) ("How the United States reaches its litigating positions, who said what to whom within the prosecutor's office, and so on, are for the Attorney General and the President to evaluate."); id. ("The fundamental problem with this inquiry [into the motivations and decisionmaking of prosecutors] is that the United States Attorney is not answerable to a judge for the deliberations among his staff ... [Judges'] temptation [to intrude] must be resisted in order to maintain separation between executive and judicial roles" and because "an inquisitorial role [is] inappropriate to the Judicial Branch."). Moreover, sister circuits have not been as nonchalant as my majority colleagues regarding their obligation to ensure that the appearance of impartiality remains inviolable.

In order to give a measure of protection (and confidentiality) to the Executive Branch's deliberative processes, which are covered by strong privileges, see Cheney v. United States District Court, 542 U.S. 367, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004); In re United States, 503 F.3d 638 (7th Cir.2007); In re United States, 398 F.3d 615 (7th Cir.2005); United States v. Zingsheim, 384 F.3d 867 (7th Cir.2004), the Court in Armstrong insisted that the defendant produce evidence that persons of a different race, but otherwise comparable in criminal behavior, were presented to the United States Attorney for prosecution, but that prosecution was declined. Bass held the same about the selection of capital prosecutions, and for the same reasons.

See, e.g., In re United States, 398 F.3d 615 (7th Cir.2005); United States v. Zingsheim, 384 F.3d 867 (7th Cir.2004). We therefore turn to the harmless-error inquiry, framed as if this were a direct appeal.

We regret to say that the judge's ruling in this case can only be characterized thus. We note that this judge was mandamused in In re United States, 398 F.3d 615 (7th Cir. 2005) (per curiam), when he became wrathful toward federal prosecutors in another criminal case. The defendant responded to our order of the 27th seemingly within minutes by filing a petition for rehearing (we accepted his amended petition for filing the next day).