WASHINGTON — A Superior Court judge in the District of Columbia has permanently banned U.S. Attorney Jeanine Pirro’s office from bringing charges against a former Olympic canoeist over damage to the Lincoln Memorial Reflecting Pool.
Judge Todd Edelman entered an order on Thursday that dismissed the case with prejudice. Edelman cited the “exceptional circumstances” of the case and said the government’s “own representations make plain” that bringing another indictment against David “Davey” Hearn “is theoretical at best, and more likely, is simply fanciful.”
Trump, Edelman wrote, “has criticized the decision of the Office of the United States Attorney to drop the case in the most vituperative terms; demanded that the government reinstitute the prosecution, in part because of Mr. Hearn’s political activity and the identity of one of his attorneys; and publicly entertained the possibility of firing the United States Attorney as a result of the dismissal.”
Hearn, Edelman wrote, “faces the unique possibility that the government will revive this case — one that it has already announced to be meritless — based on political pressure brought by the President of the United States upon his subordinate officers.” The government “has no right to retain the ability to compound the errors it has already made, or even to threaten to do so, at Mr. Hearn’s expense,” Edelman wrote.
Trump had lashed out at Hearn over political donations and because one of his lawyers, Norm Eisen, has been a longtime Trump critic involved in many legal battles against the administration.
Eisen and Hearn’s other attorneys — Mary Dohrmann, Steve Levin and Michael Bromwich — said in a joint statement that the decision “is a victory for the rule of law and for an innocent American seeking justice” and said the case never should have been brought in the first place.
“This was a miscarriage of justice, and what happened to Mr. Hearn is an outrage that should shock every American,” they wrote. “This administration chose to pursue an unjust prosecution against Mr. Hearn. It should not get repeated chances to wield the power of criminal prosecution against someone who should never have been prosecuted. Today’s decision protects Mr. Hearn from that threat, allowing him to move forward with his life as he deserves.”
Pirro’s office did not immediately respond to a request for comment.
Attorneys for Hearn and the U.S. Attorney’s Office for the District of Columbia sparred in court last month over whether Hearn’s Reflecting Pool case should be dismissed with prejudice, meaning prosecutors would be barred from bringing another case against him. At the center of much of the discussion: Donald Trump’s pressure campaign on Pirro’s office and his decision to link his desire for prosecution to the political beliefs of Hearn and one of his attorneys, Norm Eisen.
Pirro’s office dropped the case in late July after evidence showed the area was already damaged, and Hearn’s team moved to ban the office from bringing another case in August.
At an unrelated press conference last month, Pirro declined to answer several questions from reporters about her handling of the Reflecting Pool case.
Pirro’s office wanted to maintain its ability to bring a theoretical case, even though its own evidence — that the section of the Reflecting Pool that Hearn allegedly touched was already damaged, and they can’t prove more than $1,000 in damage — would make bringing another felony case impossible.
“What future prosecution could even occur?” Edelman asked at the hearing.
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“That I don’t know,” said Michael Spence, a career official in the U.S. Attorney’s Office for the District of Columbia.
“Give me an example of one possible thing that could happen” to change the fundamentally flawed case, the judge asked. “Even theoretically, what could there be?”
Spence conceded he had no satisfactory answer. He added that the U.S. Attorney’s Office had no investigation going into Hearn “as of this second” but said that could change.
Edelman noted that it was going to be pretty difficult to find a case with similar circumstances to Hearn’s case, and asked Spence how he was supposed to look at Trump’s statements calling for a prosecution that Pirro’s office admits was meritless. The president’s statements, Spence said, “speak for themselves.”
Steve Levin, an attorney for Hearn, said prosecutors “had no case” and that the government abused its prosecutorial discretion by rushing to indict Hearn to please the president, misleading a grand jury along the way.
“That’s where the bad faith comes into play,” Levin said. How is Hearn supposed to trust the grand jury process, Levin asked, given that the case got through before? “There’s no confidence that Mr. Hearn has that the grand jury will do the right thing” if another case was presented,” he said.
Pirro’s office, Levin argued, is trying to keep a “discredited felony accusation on life support,” and doing so served no public interest.
“There is nothing that can save the case they dismissed,” Levin said. “The government has basically acknowledged there is nothing that can revive this case.”
But Spence said the grand jury process would still give Hearn protection from a bad faith prosecution.
“The government did act in good faith in this case,” Spence argued.
