The collapsed felony criminal case charging a former Olympian with damaging the Reflecting Pool is just the latest in a string of legal misfires for Trump’s Justice Department.
Trump blasts Jeanine Pirro after Reflecting Pool case collapse
Trump criticizes Jeanine Pirro after DOJ drops Reflecting Pool vandalism case tied to contractor errors in Washington.
WASHINGTON – The Justice Department’s collapsed felony criminal indictment charging a former Olympian with damaging the Lincoln Memorial’s Reflecting Pool is just the latest in a string of legal misfires by the DOJ in politically charged cases.
D.C. U.S. Attorney Jeanine Pirro, a former county court judge in Westchester, New York, and former Fox News host, asked a judge to dismiss a felony criminal charge that she had personally announced with great fanfare against former Olympian David Hearn. The DOJ had accused Hearn of yanking the pool’s lining and causing more than $1,000 in damage, bringing a felony destruction of property charge that carries a maximum sentence of 10 years in prison.
In the new court filing, Pirro said the DOJ based its indictment on “less than fulsome information” from the Department of the Interior, which has since provided evidence indicating the damage was caused by flawed installation during a rush to complete renovations ahead of President Donald Trump’s summer “America 250” celebration.
It’s far from the first time the current DOJ has suffered an embarrassing failure in court. In a series of other politically charged cases under the Trump administration – including charges against Trump targets James Comey and Letitia James, and potential charges against Democratic lawmakers who said soldiers don’t need to follow illegal orders – grand juries have refused to indict and judges have thrown out cases.
“When they’ve taken these political cases, they’ve either been dismissed before they even get to a jury, or the DOJ’s lost,” said Neama Rahmani, a former federal prosecutor who appeared multiple times on Pirro’s former Fox News show.
“Historically, federal prosecutors almost never lose, but they’ve lost a lot of these cases,” Rahmani added.
Gilbert Rothenberg, a former longtime DOJ official who oversaw appeals in tax cases across Democratic and Republican administrations, told USA TODAY there is always some political influence on the DOJ’s priorities based on who is the president, but the current level of politicization “is something that is unusual.”
“The current DOJ is highly politicized, which did not happen in previous administrations,” Rothenberg said.
The Justice and Interior Departments didn’t respond to USA TODAY’s requests for comment. The White House referred USA TODAY to Trump’s Aug. 3 comments from the Oval Office on the dropped case against Hearn.
Trump said Pirro “folded like an umbrella” and he was “really disappointed” that she was dropping the charges.
“Frankly, I think she choked,” he said.
Trump has previously argued that the DOJ was weaponized against him under President Joe Biden, when Trump faced federal charges alleging that he illegally tried to overturn the 2020 election results and mishandled classified documents.
Those cases were brought by a special counsel appointed to have greater-than-normal independence from Justice Department leadership. A separate special counsel also brought criminal cases against former President Joe Biden’s son, Hunter Biden.
Norm Eisen, a lawyer for Hearn, told USA TODAY that the case falls within “a profoundly concerning pattern of prosecuting and persecuting innocent people, whether it’s Tish James, or Jim Comey, or Davey Hearn.”
“Davey did nothing wrong. He should never have been targeted in this way, and that should be deeply alarming to every American. So should this pattern,” Eisen said.
What happened in the Reflecting Pool case?
Hearn was initially arrested on June 19. However, prosecutors wouldn’t charge him with a felony for two more weeks.
Three days after the arrest, on June 22, Trump – who unveiled his project to renovate the Reflecting Pool in April – said vandals had damaged the pool, including making a 350-foot slit from one end to the other of the pool.
“I saw it. They cut it. They cut it very violently. The same thing with the floor. They cut it and then they lifted it. They pulled it. And that’s what it is,” Trump told reporters.
On July 2, Pirro held a press conference to announce that her office had secured a felony indictment against Hearn, accusing him of ripping a piece of recently-installed sealant and causing more than $1,000 in damage.
“The evidence shows, and we will prove beyond a reasonable doubt, that Hearn willfully destroyed property at the Lincoln Memorial Reflecting Pool,” she said.
However, Pirro and members of her team visited the Reflecting Pool 15 days later, when it was drained and a defense expert for Hearn was inspecting it, and saw extensive damage throughout the pool, according to her own July 31 court filing.
“It was at that time that (Pirro’s office) first became aware of the significant damage throughout the pool and accordingly requested all documents from DOI concerning … how the pool was lined and all records regardingthe installation of the lining,” Pirro said in the filing.
According to Hearn’s legal team, the truth about the case was apparent well before that July 17 inspection.
A June 30 government damage assessment tipped prosecutors off to the idea that the pool liner was suffering from systemic failure, Hearn’s legal team said in an Aug. 4 court filing. The assessment describes the area of the pool allegedly damaged by Hearn as a “a ‘[m]ajor failure point’ and a ‘possible result of vandalism after initial peeling,'” according to the filing.
Furthermore, special agents from Pirro’s office “photographed damage throughout the Pool” on July 13, according to the filing.
“Forgive me if I find it hard to accept the claim that they did not know this until they went back to the Department of the Interior. It does not hold water,” Eisen told USA TODAY.
Rothenberg said Pirro appears to have rushed getting an indictment for political reasons.
“Because it was a rushed indictment with improper information, then she had to backtrack,” he said.
Even if the allegations against Hearn had been true, Rahmani said it’s not normal for federal prosecutors to bring a felony charge because they “can only take a very small percentage of cases” and often leave low-level offenses for local prosecutors to handle.
“Even if what they were saying is true, it just does not make sense,” he said.
If federal prosecutors did in fact know information indicating the damage to the Reflecting Pool preceded Hearn going near it and sought an indictment anyway, that could be the basis for a civil lawsuit seeking damages, Rahmani added. He noted that Hearn had to get a lawyer and deal with both public scrutiny and reputational harm.
Eisen said Hearn and his legal team are considering all legal options, but he declined to comment further on what a potential civil suit would entail.
DOJ history of failures in politically charged cases under Trump
The collapsing case follows a history under the current administration of seeking charges against political targets of the president and failing either at that initial step or once the case is in front of a judge.
The DOJ, for instance, brought criminal charges against James Comey and Letitia James soon after Trump publicly called for them to be prosecuted for unspecified crimes in a September social media post. A judge later dismissed the charges, concluding that the prosecutor who secured them – a former Trump aide with no previous prosecutorial experience – was unlawfully appointed.
After that failure, two grand juries refused to issue new charges against Letitia James, even though federal prosecutors very rarely fail to get an indictment when presenting cases to grand juries.
But the current DOJ has faced numerous failures to secure indictments from grand juries.
A federal grand jury rejected an attempt by the DOJ to indict six Democratic lawmakers who urged military service members not to obey potential illegal orders, according to multiple media reports.
None of the grand jurors voted to return the indictment, according to the reports.
Attempting to charge the senators “when they were just doing what senators do – that did not happen in previous administrations. So I think it’s it’s fair game to say that the current DOJ is highly politicized,” Rothenberg said.
The DOJ also failed to get a felony indictment against Sean C. Dunn, a man who threw a Subway sandwich at a federal agent. After that failure, the department took a misdemeanor case against him to trial, where it lost again.
Rahmani said the initial case against Hearn, like the sandwich case, didn’t reflect the serious level of allegations that typically occupy federal prosecutors.
“Is this what the DOJ has been relegated to do, to prosecute these minor offenses?” he said.
The DOJ has secured new charges against James Comey since its failure in its earlier case. While the first case accused Comey of lying to Congress, its new case accuses him of threatening to harm or kill the president by posting an image of seashells in the shape of “86 47” on social media.
“86” is a slang term that means “to throw out” or “to get rid of,” according to Merriam-Webster. Trump is the 47th U.S. president.
Comey deleted the post within hours, after some Trump supporters interpreted the post as a threat. He said in a new post that he “didn’t realize some folks associate those numbers with violence” and he opposes “violence of any kind.”
The most recent charges against Comey have sparked condemnation from free speech advocates, and even some conservative legal scholars have denounced the charges as an unconstitutional violation of the First Amendment.
In 2022, conservative commentator Jack Posobiec posted “86 46” on social media, referring to then-President Joe Biden.
Asked on CBS Mornings in April whether the DOJ would also pursue charges against Posobiec, Acting Attorney General Todd Blanche, a former personal defense lawyer to Trump, said he had “no idea” whether that post was investigated, but that “you cannot compare, ‘Well, what happened last time, what happened this time.’ Every investigation is different.”
Comey has filed a motion arguing that the latest charges he faces, as with the earlier ones, reflect an unconstitutional prosecution that’s selectively and vindictively targeting him. Comey has been a fierce critic of Trump since Trump fired him from the FBI in 2017, at a time when the FBI was investigating connections between the Trump 2016 presidential campaign and the Russian government.
Historically, that’s a hard defense to prove in court. Trump and Hunter Biden both lost motions challenging federal criminal cases they faced in recent years on the grounds of selective and vindictive prosecution.
But in at least one recent case, the indictment of Kilmar Abrego Garcia, whom the Trump administration wrongly deported to El Salvador, a judge concluded that’s exactly what happened. After Abrego Garcia was returned to the U.S., the DOJ secured an indictment charging him with human trafficking.
However, federal Judge Waverly D. Crenshaw Jr., an appointee of former President Barack Obama, dismissed the case in May, writing that evidence in the case showed the DOJ wouldn’t have prosecuted Abrego Garcia “absent Abrego’s successful lawsuit challenging his removal to El Salvador.”
“The evidence before this Court sadly reflects an abuse of prosecuting power,” Crenshaw wrote.