Three of the most significant criminal cases on the Trump Justice Department’s retribution tour docket experienced significant developments over the past 24 hours.
A federal judge in Minnesota agreed to privately inspect grand jury records for signs of irregularities in the cases against journalists Don Lemon and Georgia Fort, along with their more than 30 co-defendants charged in connection with the January protest inside Cities Church in St. Paul.
The government released a private email proving that the Reflecting Pool was peeling because of a contractor’s “overspray” more than a week before former Olympian David Hearn visited it — and the alleged damage to the pool was well below the threshold for felony prosecution.
Finally, prosecutors opposed former FBI director James Comey’s vindictive prosecution motion by arguing that there would have been no problem if Trump directed it.
During an hourlong discussion on Substack Live, Andrew Weissmann unpacked those developments (after addressing some audio problems at the start of the recording).
Here’s a quick summary of our conversation with resources for further information:
‘The presumption of irregularity’
Before Trump’s second term, it was extremely rare for a criminal defendant to be able to persuade a judge to review grand jury materials for possible misconduct.
Now, it’s almost as regular as rain.
The case against the anti-ICE activists known as the “Broadview Six” collapsed after a federal judge made clear that she would scrutinize those grand jury records, and the prosecutors who brought the case are facing an ongoing inquiry that could end in referrals for professional discipline.
In Wyoming, three federal judges threw out nine indictments because of the antics of a Trump-appointed U.S. Attorney, who — among other things — handed out business cards to members of the grand jury. (Conversations between prosecutors and grand jurors are forbidden.)
Andrew Weissmann interpreted Don Lemon’s latest legal victory as part of the emergence of a “presumption of irregularity.”
“It’s judges going: ‘I don’t trust you,’” he said.
U.S. District Judge Laura Provinzino said that she will review the grand jury materials “in camera,” meaning that defense attorneys will not have access to them unless she later decides to release them. But the extreme secrecy surrounding these records makes her ruling far from a usual occurrence.
And recent history shows this could be a breakthrough moment in a case with significant ramifications for the First Amendment’s freedom of the press and right to protest.
Lemon is one of more than 30 defendants charged in connection with a protest on the eve of Martin Luther King Day inside Cities Church in St. Paul, Minn. Prosecutors charged the protesters, and the journalists covering them, under the FACE Act, a law protecting abortion clinics and religious spaces from harassment. The defendants are also charged with conspiring to violate the rights of the congregants.
‘Smoking gun’
In a new court filing, U.S. Attorney Jeanine Pirro revealed even more incontrovertible evidence of David Hearn’s innocence, but she argued that prosecutors should have the option to revive the case against him anyway.
The damning email brought to light in the government’s filing is dated June 11, more than a week before Hearn's arrest.
In the message, a National Park Service engineer blames the peeled sealant in the relevant section on the contractor’s “overspray” and said the damage would “not impact the strength of the line.” Prosecutors acknowledged that the portion of sealant that Hearn allegedly peeled was of “little or no value,” a fatal concession for a vandalism charge that requires at least $1,000 in damage.
Hearn’s case was recently dismissed following similar concessions from the government, and a judge is considering whether the dismissal should be “with prejudice” or “without prejudice.” The latter option, which the government requests, would give the government another opportunity to charge the case.
Andrew Weissmann pointed out that the position makes little sense in light of the “smoking gun” evidence the government released.
“I would say, ‘Look, I hear you that you are saying this case is being dismissed, but you'd like an opportunity to be able to bring this case: Walk me through that. … Given this email that you have just sent, tell me how you could possibly bring a case in the future,’” he said.
Read the government’s filing in full here.
‘A feature, not a bug’
In a recent “Meet the Press” interview, Attorney General Todd Blanche refused to pledge to keep the Justice Department independent, calling the premise conceptually flawed.
That’s now an official position in a government filing opposing James Comey’s motion to dismiss his criminal case for vindictive prosecution.
“The purported ‘independence’ of DOJ that Comey cites […] is antithetical to the constitutional separation of powers (which lodges the Executive power in the President alone),” the government’s legal brief states. “And as a matter of historical analysis, it is a myth.”
Presidents directing subordinates to “exercise core executive functions” — like, presumably in this view, Justice Department prosecutions — is a “ feature, not a bug, of our constitutional system,” the brief argues.
After Watergate, a system of norms emerged limiting presidential communications with the Justice Department regarding individual cases. Reacting to this filing, Andrew Weissmann and I explored how those norms emerged and whether they can be resurrected in the face of a full-on attack on their premises.
Read the filing in full here.
