Now that criminal charges against him have been dropped, David Hearn and his attorneys consider legal claims -- possibly including defamation, false imprisonment, and more

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Donald Trump brought conditions at the Lincoln Memorial Reflecting Pool to public attention on March 31 by claiming the water looked "absolutely filthy." Trump tried to ameliorate the problem by fast-tracking a no-bid contract for Atlantic Industrial Coatings to drain, waterproof, and paint the pool "American Flag Blue." That move failed, as the water turned green, apparently due to algae growth, and pieces of a newly installed blue liner began to peel. In a state of increasing frustration, Trump did not seem inclined to take responsibility for the botched renovation and decided that vandals had caused damage to the pool. 

One of the alleged vandals he blamed was former U.S. Olympic canoeist David "Davy" Hearn, who long has operated a waterproofing business and said he only reached into the water to feel what a piece of the detached liner felt like. In short, Hearn has a history with materials used around man-made pools of water, and he simply was trying to get a professional's feel for what was going on. 

Trump, unable to keep his mouth shut about vandalism and unwilling to calmly assign the repair job to someone who knew what he or she was doing, made matters worse by posting on Truth Social that individuals had intentionally slashed and gashed the pool's blue lining, causing enough damage to merit felony criminal charges that could be punished by years behind bars. Trump posted that multiple individuals had been charged with destruction of government property, with David Hearn being by far the best-known suspect. The U.S. Department of Justice conducted a grand-jury investigation that led to an indictment, with Hearn detained for roughly five hours after his arrest. He hired a team of lawyers, pled not guilty to one felony count (which has a maximum sentence of 10 years, upon conviction) and wound up seeing Jeanine Pirro, U.S. attorney for the District of Columbia, dismiss charges after concluding the damage had been due to rushed and flawed installation.

After all of that, Trump might find himself in the middle of a bigger mess, according to reporting at The New Republic (TNR). Under the headline "Trump's repeated attacks over Reflecting Pool come back to bite him; former Olympian David Hearn's lawyers say they are exploring all options," Hafiz Rashid writes: 

President Donald Trump’s repeated attempts to punish former Olympian David Hearn on the made-up vandalism of the Lincoln Memorial Reflecting Pool may backfire.

The U.S. Attorney for the District of Columbia, Jeanine Pirro, was forced to drop the felony charges against Hearn on July 31 due to a lack of evidence, faulting Trump’s hand-picked contractor for a shoddy renovation instead. But on Sunday, Trump was still pushing his false claim that Hearn actively vandalized the pool’s lining, claiming on Truth Social that a National Park Service career employee, “a highly credible witness,” watched Hearn “‘violently’ ripping and tugging at the Pool’s somewhat delicate coating.”

As we reported in a post dated August 3, Hearn already had a number of possible legal claims against individuals and entities associated with the government's failed "vandalism" case. With Trump continuing to push the false narrative that Hearn intentionally damaged the pool, legal headaches for the president and his associates might only be getting started. Does Hearn have grounds for a lawsuit against individuals who caused him to be falsely arrested and imprisoned? I think the answer is yes, and let's take a closer look at potential claims that might be of particular interest, as outlined in our August 3 post:

(1) Presidential Immunity -- "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. . . . 

"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. That language likely would make it difficult for Trump to argue that ordering criminal charges against David Hearn was 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."

(2) False imprisonment -- "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 have personal experience with a state-sanctioned kidnapping, and we will have more on that issue in upcoming posts.)

(3) Defamation -- In a Truth Social post dated July 14, Trump wrote the following:

“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? 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.

Let's return to the reporting at TNR, where we learn Hearn's legal team already is thinking of compensation that might be due to their client:

Hearn’s lawyers—Norm Eisen of Democracy Defenders Fund, Mary Dohrmann of Washington Litigation Group, and Steve Levin of Steptoe LLP—said in a statement Monday that they aren’t going to take “continued harassment” from the president.

“The government is continuing to attack an innocent man. Our first filing in the case on July 10 included photographic evidence from before Mr. Hearn touched the Reflecting Pool proving that he caused no damage,” the lawyers told Mediaite. “Our other filings provided even more proof. Finally, the U.S. Attorney’s own motion on July 31 admitted the damage was caused by a ‘botched installation and not vandalism.’ We are reviewing all legal remedies, including for this continued harassment. It is outrageous.”

This means that Hearn could sue Trump and the Department of Justice over the false claims, which the DOJ has already disavowed in court. There are a lot of unanswered questions over how Pirro’s office secured an indictment against Hearn in the first place with such faulty evidence. She later blamed Interior Secretary Doug Burgum for deliberately misleading her office about Hearn’s actions.

The New Republic’s Greg Sargent reports that Democrats on the House Judiciary Committee are looking to open an investigation into how Hearn was charged and demand documents from the Justice and Interior Departments relating to that decision. Hearn’s lawyers are also seeking access to transcripts of the federal grand jury proceedings. Trump’s tantrum over the failed Reflecting Pool renovations may soon turn into a big legal headache for him and his administration.