A federal magistrate judge on Thursday chastised prosecutors seeking to dismiss a case after a grand jury declined to indict a man charged with threatening to kill President Donald Trump, citing a string of other cases they've brought recently that failed to return indictments.
Judge Zia Faruqui said in an order Thursday that prosecutors had made the "inexcusable" attempt to cancel the preliminary hearing for Edward Dana minutes before it was scheduled because they had filed lesser charges in a lower court.
He also sharply questioned whether the Justice Department still adheres to a principle spelled out in the Justice Manual that they should bring only winnable cases.
“Given that there have been an unprecedented number of cases that the U.S. Attorney dismissed in the past ten days, all of whom were detained for some period of time, the Court is left to question if this principle still applies,” Faruqui wrote.
Faruqui said the Justice Department had sent an email Thursday afternoon informing the court that it "no longer intends to pursue the federal charge" against Dana, who was accused of making a threat to kill Trump while he was detained in a police car last month. Prosecutors told the court that they had instead filed low-level charges in D.C. Superior Court.
Faruqui ordered the government to answer several questions about the handling of Dana’s case following his arrest in August, when is alleged to have been seen damaging a light fixture outside a D.C. restaurant. He called on prosecutors to explain the delay in filing a motion to dismiss his case and to address actions taken "to remedy" what happened to Dana, among other questions.
The U.S. attorney for D.C., Jeanine Pirro, criticized Faruqui's order in a statement, saying Faruqui has "repeatedly indicated his allegiance" to those who violate the law.
"This judge took an oath to follow the law, yet he has allowed his politics to consistently cloud his judgment and his requirement to follow the law. America voted for safe communities, law and order, and this judge is the antithesis of that," she said.
According to a probable cause statement, Dana told officers after he was detained on suspicion of destruction of property that he was "not going to tolerate fascism" and that he would protect the Constitution "by any means necessary."
"And that means killing you, officer, killing the President, killing anyone who stands in the way of our Constitution… You want to stand in the way of our Constitution, I will f---ing kill you,” Dana is accused of saying.
Shortly after that statement, Dana loudly sang “ba ba ba ran, ba ba ran” (an apparent reference to a Beach Boys song), according to his attorney Elizabeth Mullin, who argued in court documents that her client can be heard in camera video from the police car "advising the officer that he is intoxicated."
Mullin contended that "any objective listener" would conclude Dana's drunken ramblings "do not rise to the level of ‘true threats’ as established by Supreme Court precedent."
"His statements may have been ill-advised and were obviously made while he was under the influence, but they were conditional, unserious, and in no way conveyed a 'real possibility that violence [would] follow,’” Mullin wrote.
Grand juries have declined to return indictments more than a half-dozen times in recent weeks amid the Trump administration's federalization of the D.C. police to crack down on crime.
A federal grand jury also declined to indict a man accused of hurling a sub-style sandwich at a U.S. Customs and Border Protection agent who was patrolling streets in the nation's capital last month.
