A judge in D.C. pressed federal prosecutors to explain Friday why they should keep the option to reopen a case against a former Olympian who had been accused of vandalizing the Lincoln Memorial Reflecting Pool even as they acknowledged there is no evidence linking him to a crime.
Assistant U.S. Attorney Michael Spence said the Justice Department currently does not have probable cause to charge David Hearn but suggested that could change if new information arose.
Judge Todd E. Edelman of D.C. Superior Court, who last month agreed to the U.S. attorney’s request to drop a felony vandalism charge against Hearn, was skeptical of that argument.
“Give me an example of one possible thing that could happen that would make this a viable prosecution or would allow you to explore going forward in the case,” Edelman said.
Spence said he didn’t have a “very satisfying answer” to the query but noted that the Reflecting Pool is currently being repaired, a process that could reveal new evidence.
Attorneys for Hearn say they worry that President Donald Trump — who has continued to blame vandals for the damage and criticized U.S. Attorney Jeanine Pirro for dropping the charge — could push prosecutors to resurrect the case.
Steve Levin, one of Hearn’s attorneys, said the government has “basically acknowledged there is nothing that can revive this case, yet it still wants to hold on to the power to do so.”
The arrest of Hearn, a former Olympic canoeist, in June drew national attention and ignited fierce backlash over what some described as a politically motivated charge.
Trump repeatedly blamed Hearn and others for allegedly damaging the landmark, and at least four people faced charges. Hearn said he had simply reached into the water and touched a piece of peeling liner.
In late July, federal prosecutors abruptly moved to drop a felony charge against Hearn, citing newly furnished evidence suggesting that the damage to the Reflecting Pool was due to a “botched” installation during a renovation of the basin.
During questioning Friday, prosecutors also confirmed that Pirro’s office moved to drop its case against Hearn because the piece of lining he was accused of damaging had little to no economic value — missing the threshold of at least $1,000 in damage needed for the felony charge.
Edelman agreed in early August to dismiss the case, and said he would rule later on a request from Hearn’s attorneys that it should be “with prejudice,” which would bar the government from reviving the case.
The courtroom for Friday’s hearing swelled with reporters and supporters of Hearn. Before the hearing got going, his attorneys shook hands with prosecutors.
Edelman first questioned the federal prosecutors, asking why they should be able to keep potential charges alive.
“Why did they bring it in the first place?” Levin said during his arguments. He also talked about the toll the case has taken on Hearn.
Leaving the case open doesn’t serve the interest of the public, Levin said. “There can be no public interest in reserving the authority to prosecute an innocent person.”
Federal prosecutors have maintained that the government sought an indictment against Hearn “in good faith” after the Interior Department “provided evidence, albeit incomplete, that there was vandalism to the Reflecting Pool,” according to court filings.
On Friday, Spence reiterated that the government “acted on the facts and the law” when Hearn was indicted and again when that additional information led to the dismissal of the case.
He said it is in the public interest to allow a grand jury to consider any new charges should they be brought at a future date, and he noted grand juries do not indict every case.
Hearn’s attorneys — who also include Norm Eisen, Mary Dohrmann and Michael Bromwich — and other defendants charged over alleged vandalism have expressed skepticism of the Justice Department’s narrative, alleging that prosecutors knew about the faulty installation from the beginning but pursued vandalism charges anyway.
“The government has conceded that it cannot prove the crime it charged, and its requested dismissal without prejudice would not preserve a viable prosecution,” Hearn’s attorneys wrote in a court filing. “Instead, it preserves only the threat of prosecution, however meritless, against an ordinary citizen the government has no chance of convicting at a fair trial.”
At Friday’s hearing, Edelman expressed concern about Trump’s continued claims of vandalism and his rebukes of prosecutors for dropping the case.
He referenced several of Trump’s social media posts to the court and asked prosecutors, “How am I to look at these statements as anything other than statements by the chief executive urging your office to pursue a prosecution that you have told me is meritless?”
Spence said Trump’s statements speaks for themselves. As of right now, no charges have been brought, and prosecutors are no longer investigating.
The case is “extraordinary,” Levin said of Trump’s comments.
“We haven’t seen a case like this when the president of the United States is so involved,” Levin said.
Edelman told the parties to expect to hear from him “very shortly.”
After the hearing, a gaggle of Hearn supporters shouted, “Davey! Davey!” as he emerged from the courthouse.
In brief remarks, Hearn thanked his attorneys and supporters from across the country, he said.
“It’s not about me,” Hearn said. “This is about defending democracy.”
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