Trump DOJ says it’s not probing David Hearn—but might ‘10 minutes from now’

A judge seems unlikely to give the DOJ another bite at the apple on Hearn’s prosecution.

David Hearn (Photo by Finn Gomez/Getty Images)

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Weeks after the collapse of former Olympian David Hearn’s indictment, a judge grilled prosecutors on Friday about why they would want to try to revive charges that they admitted they cannot prove beyond a reasonable doubt.

“Why isn’t the threat of harassment faced by Mr. Hearn completely different from prosecutions in a normal case?” D.C. Superior Court Judge Todd Edelman pointedly remarked on Friday.

Last month, the judge dismissed Hearn’s indictment after a series of admissions from the government made the case unsustainable, and he called today’s hearing to determine whether to throw out the case “with prejudice,” denying the government the opportunity to try prosecuting him again.

Among other things, the government conceded that damage to the Lincoln Memorial Reflecting Pool resulted from a “botched installation and not vandalism.” The peeling of the sealant in the relevant section was caused by an “over-spray.” A National Park Service engineer cut the sealant with a knife to contain the damage, and Hearn allegedly pulled an already-peeling section that was of “little or no value.”

‘That could change’

Weighing heavily on the judge’s mind was the felony vandalism statute’s proof of damages of at least $1,000.

The Justice Department concedes it cannot prove that prong of the case beyond a reasonable doubt, and that concession seemed fatal to the judge.

“What future prosecution could ever occur?” Judge Edelman asked.

Assistant U.S. Attorney Michael Spence insisted that the answer to that question would require “speculation,” but the judge noted that the case doesn’t depend on evidence of Hearn’s alleged conduct.

Asked whether the government is currently investigating Hearn, Spence answered: “No.”

“Ten minutes from now that decision could change,” Spence added.

Donald Trump has intensely pressured U.S. Attorney Jeanine Pirro to change her mind, threatening to fire her and claiming that she “choked” on the case and “folded like an umbrella.”

Pointing to those pronouncements, Judge Edelman asked: “How am I to look at these statements as anything other than the Chief Executive urging your office to pursue a prosecution that your office has determined is meritless?”

Instead of answering that question, Spence focused on Trump’s legal power.

“I think that the president’s statements speak for themselves,” Spence said. “He can remove the U.S. Attorney. He can remove me.”

‘Should never have been indicted’

Judge Edelman also sharply grilled the government on its speed in prosecuting Hearn, who was arrested on June 19 and indicted on July 2.

In a typical murder case, Adelman said that prosecutors seek the “full, statutory nine months” to pursue the investigation.

“Why wasn’t that process followed here?” he asked. “Why did this case need to be indicted within two weeks?”

Spence said that the speed was required to deter others from vandalizing the pool.

Judge Edelman pointed out that’s hardly different calculus from a murder case, adding: “That seems like something you’d want to deter also.”

Hearn’s attorney Steve Levin said that the government insisting on the opportunity to bring the case again shows its “bad faith.”

“Why are they seeking to re-indict a case that they’ve admitted should never have been indicted?” Levin asked.

Despite the case against him already having been dismissed, Hearn sat at the defense table flanked by his all-star legal team: Levin, Norm Eisen, Mary Dohrmann and Michael Bromwich.

Before ending the hearing without a ruling, Judge Edelman said: “You’ll hear from me very shortly on this.”

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