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| (Reuters, Kylie Cooper) |
Lawyers for a man who was arrested for allegedly vandalizing the Lincoln Memorial Reflecting Pool are asking a court to release documents they say likely will reveal flaws in the grand-jury process that led to their client being indicted. That is just one of several relatively new issues that could arise in court before a scheduled trial date of Sept. 28. Some legal analysts have said the government's case is so weak it already is "leaking."
The Reflecting Pool case might seem like a relatively minor event at a time when the U.S. is at war with Iran, the words "explosive diarrhea" have become an unwelcome addition to the American lexicon, and ICE agents have developed a disturbing habit of fatally shooting people under questionable circumstances. But here is the No. 1 reason the Reflecting Pool case, which involves former U.S. Olympic canoeist David "Davy" Hearn, matters: Throughout Donald Trump's nightmarish second term as president, the number of individuals and institutions that have caved when the administration brought or threatened to bring criminal or civil actions against them runs well into the dozens. These include universities, law firms, corporations, media organizations and more.
David Hearn, on the other hand appears determined to fight back -- and with the highly regarded Norm Eisen as lead counsel, he has the legal support needed to wage a serious battle with the White House.
To be sure, Hearn is not the only person or entity to fight back against Trump in court. The Lawfare blog keeps a litigation tracker that currently shows 332 active cases challenging Trump administration actions. The cases highlighted at Lawfare are ongoing -- and many appear to involve complex legal matters -- so the outcomes might not be known for some time. The Hearn case, however, is moving quickly so far, and he appears to have a solid chance of reaching a favorable outcome on multiple fronts. A motion to dismiss the charges already has been filed, and in our view, it should be granted. But if it is denied, Hearn still has plenty of avenues for prevailing. If that happens, I can see a movie being made someday with a title like "America's lone canoeist uses moxie and legal grit to beat down Trump's Evil Empire." I Think I'm going to reserve tickets now, and we suggest you follow suit. So, how is the Hearn case shaping up? Let's take a look . . .
For now, the grand-jury issue is front and center, and a jointly published article at Associated Press (AP) and Yahoo! News has details. Under the headline "Ex-Olympian charged with damaging Reflecting Pool sees 'irregularities' in grand jury proceedings," Michael Kunzelman writes:
A former Olympian charged with deliberately damaging the Lincoln Memorial Reflecting Pool is seeking access to all of the closed-door testimony that led to his indictment, pointing to "irregularities" in those grand jury proceedings.
In a court filing Monday, David Hearn's attorneys requested an order for the government to turn over a complete transcript of all grand jury proceedings. They also want prosecutors to disclose the legal instructions they gave to grand jurors about the elements of Hearn's alleged crime.
Hearn pleaded not guilty earlier this month to one felony count of property destruction and has a trial scheduled to start Sept. 28 in D.C. Superior Court. The charge, which carries a maximum prison sentence of 10 years upon conviction, accuses Hearn of causing at least $1,000 in damage to the pool.
But his lawyers question whether prosecutors properly presented the grand jury with adequate evidence to support the amount of damage alleged in Hearn's indictment. A National Park Service official testified that the pool already was damaged before Hearn allegedly touched it, couldn't quantify any damage attributable to Hearn and said the same repairs would have been required regardless of his conduct, defense attorneys said.
According to NBC News, prosecutor Jeanine Pirro presented only one witness to the grand jury, and much of what he said was favorable to Hearn. How in the world did Pirro, under those conditions, land an indictment? That might be a question for the D.C. Bar Association to ponder, with possible sanctions in mind -- especially since the Trump-controlled U.S. Department of Justice is not likely to do anything about possible skulduggery. This is from the NBC report:
The witness’ testimony, according to Hearn’s lawyers, “established that the pool had substantial preexisting damage requiring repair before any alleged conduct by Mr. Hearn.”
“Simply put, the government’s witness could not identify any additional cost caused by Mr. Hearn’s alleged conduct. Indeed, the witness did not even say or suggest that the alleged conduct had compromised the liner at all,” they wrote.
The witness testimony also raised questions about whether the grand jury was properly instructed about the core elements of the alleged crime, which “bears directly on whether the felony indictment was lawfully returned,” Hearn’s attorneys wrote.
“The Government’s only witness on that element testified that the property was already deteriorated, that the identified repairs would have been needed even without Mr. Hearn’s alleged conduct, and that he could not quantify any loss caused by that conduct,” they wrote. “Consequently, the grand jury’s indictment of Mr. Hearn is hard to explain. Mr. Hearn needs to learn whether the grand jury was properly instructed that the charge required him to have caused over $1,000 in damages, when the testimony failed to establish that he caused any damage at all.”
What other issues might come before the court? Here are several to keep an eye on:
* Hearn has said he was detained for five hours following his arrest for touching a piece of detached coating. If a court finds that Hearn was arrested without probable cause, that might bring false arrest -- into the equation. In some jurisdictions, false arrest can be brought as a criminal charge, usually a misdemeanor As a prosecutor, Pirro probably would enjoy immunity from a false arrest lawsuit. But such a claim might successfully be brought against the officers who made the arrest and the department for which they work, perhaps alleging that they did not have lawful authority to take such a step. A classic example of such a case would involve a department store clerk or security officer who arrests someone for suspected shoplifting.
* Here is where the Hearn case could get very interesting. What if it is determined that Donald Trump ordered Hearn's arrest and ordered Pirro to prosecute regardless of whether she had a valid case. The U.S Supreme Court (SCOTUS), of course, famously granted former presidents absolute immunity from criminal prosecution for official acts. But what about civil immunity? In the 1982 case of Nixon v. Fitzgerald, SCOTUS found that a former president has absolute immunity from civil damages for official acts while he was president. Civil immunity, however, does not apply to unofficial conduct or actions taken before the president was in office.
What if Donald Trump is found to have ordered David Hearn to be unlawfully arrested and prosecuted. Could the president face criminal charges and/or civil claims because of that? I think the answer might be yes, if Democrats unleash a Blue Wave in the midterms, take back both houses of Congress and start undoing the massive damage Trump has done to our justice system. On the criminal side, a key question would be "Does any president have the authority to order federal arrests or prosecutions? The Justice Department Manual plainly says the president should not be involved in charging or non-charging decisions. I think that language would make it difficult for Trump to argue that ordering criminal charges against David Hearn is part of his official duties. On the civil side, any actions Trump took against Hearn would almost have to be seen as unofficial conduct that would not trigger immunity. At least, that's how I think an uncompromised court of law -- if we can return to the days of having such entities (at least sometimes) -- would see it.
* That Hearn was detained brings "false imprisonment" into the matter. Imprisonment does not refer only to situations where a subject is placed in a cell, behind bars. It also refers to any detention that takes away a person's freedom of movement. And if that detention (five hours in Hearn's case) is unlawful -- and his almost certainly was -- then he would have grounds for a false imprisonment lawsuit. (Note: This brings us to the idea of what I call "state-sanctioned kidnappings." Such actions have exploded during the second Trump administration, as he has granted extraordinary powers to ICE, promoted the militarization of law enforcement, unlawfully used the military for domestic purposes, and demonized migrants while attacking their right to due process.
I know from firsthand experience that state-sanctioned kidnappings predate the political rise of Donald Trump and MAGA. I was the victim of a state-sanctioned kidnapping in Alabama, one that took away my freedom of movement for five months and drew national and international press coverage. It also drew the attention of several groups devoted to First Amendment freedoms. My wife, Carol, also was targeted for a state-sanctioned kidnapping, but she managed to elude capture and played an essential role in getting our story out to the world. She and I have been denied justice at every turn and at almost every level in our court system, short of the U.S. Supreme Court. We obviously have a strong personal interest in the subject of "state-sanctioned kidnapping," and we will address the issue in upcoming posts. That it happens routinely under Trump and predates his second term by at least a dozen years or so should terrify everyone who still believes in democracy and the rule of law.
For now, David Hearn and the Reflecting Pool case are the matter at hand, and we have one more issue that we think might become prominent in that case . . .
* For weeks, Trump has been blaming damage to the Reflecting Pool on vandals, although he has provided no evidence to support that claim. David Hearn was the first person to be publicly identified as an arrestee. According to NBC News three other individuals -- Justin Carreno, Cameron Thiers, and Sophie Dennison-Gibby -- now face misdemeanor destruction of property charges. Hearn remains the only person charted with a felony.
The legal landscape became more complicated when The Independent reported on July 14 that Trump had stated the following in a Truth Social post:
“The Parks Department had to empty the water in order to fix the water tight basin. It will be refilled and put back into service soon. These country-hating sleazebags should pay a big price for the damage done.”
The sentence highlighted in yellow could bring defamation into play. In general, a defamation plaintiff must prove (1) a false statement of fact; (2) publication to a third party; and (3) resulting harm to their reputation.
Hearn, as the only person charged with a felony, is by far the best-known defendant in the case. Trump, however, did not mention Hearn by name, so could a defamation claim still exist? The answer is yes, based on the following from the Digital Media Law Project under the heading "Who can sue for defamation":
In order to be actionable, a defamatory statement must be "of and concerning" the plaintiff. This means that a defamation plaintiff must show that a reasonable person would understand that the statement was referring to him or her. Of course, if a blog post or online article identifies the plaintiff by name, this requirement will be easily met. The plaintiff need not be specifically named, however, if there are enough identifying facts that any (but not necessarily every) person reading or hearing it would reasonably understand it to refer to the plaintiff.
Once Hearn can establish the Trump statement is "of and concerning" him, he probably could claim the statement is false in two respects. One, Trump refers to Hearn as a "country-hating sleazebag." Hearn can make a strong case that he, in fact, loves his country. He represented the United States in three consecutive Summer Olympic Games and multiple World Championships/World Cups. He won 13 World Championship medals (including eight golds) and 23 World Cup medals. Two, Trump says Hearn should "pay a big price" for the "damage done." But what if there is no evidence that Hearn did any damage, and he is found "not guilty." That means Trump falsely claimed he had "done damage" and owed a "big price" for it.
What about the issue of civil immunity for Trump? Is he going to try to claim that it is an "official act" for him to call a decorated U.S. Olympian a "country-hating sleazebag." As a matter of law, a judge with integrity should hold that Trump is not protected by immunity.
As for damages, the main evidence probably would involve loss of income, and expert testimony could show the extent of harm Hearn has suffered. In an age where fame, media, endorsements, and reputation matter, Hearn's damages could be considerable, and we can hope they come right out of Trump's pocket -- unless one of his authoritarian buddies, such as Vladimir Putin, is willing to pick up the check.


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