President Donald Trump’s Justice Department made the rare move of backing off a criminal case last week, with experts telling Bloomberg Law that the administration is attempting to flee in the face of deeper “judicial scrutiny” of its motivations.
The DOJ filed a motion on Friday to dismiss the criminal case against former Olympian canoeist David Hearn, whom they have previously accused of vandalizing the lining of the Lincoln Memorial Reflecting Pool. Hearn was among the many observers who visited the pool after its Trump-backed renovation caused it to explode with an algae bloom. The U.S. Attorney’s Office for the District of Columbia wrote in the filing that, in light of new evidence, “it is difficult to attribute the widespread damage to the Reflecting Pool to vandalism, let alone to establish that fact beyond a reasonable doubt,” while also dropping three other cases tied to the pool situation as well.
“The motion, along with subsequent moves to drop misdemeanor cases against three additional people accused of damaging the pool, reveals the hesitancy of the D.C. U.S. attorney’s office to open itself up to judicial scrutiny as judges have made findings of attorney misconduct in cases defending Trump’s policy agenda, former prosecutors and legal ethics professors said,” the report explained. “The development also highlights the dilemma facing attorneys who risk professional discipline while advancing the demands of their superiors at a DOJ that critics see as increasingly politicized during Trump’s second term.”
Speaking with Bloomberg Law for a Tuesday report, various legal experts argued that this rare Trump administration retreat was also likely driven by the fear of facing actual scrutiny in court. Kathleen Clark, legal ethics lawyer and Washington University law professor, called the move a “cover your a——” motion and urged the court to scrutinize the case anyway.
“This CYA motion is an attempt to prevent the court from engaging in the kind of scrutiny that frankly the court needs to pursue anyway at this point,” Clark said.
She also added that, “There are reasons to believe that the US attorney’s office manipulated the grand jury process and complied with its discovery obligations only haltingly,” citing evidence put forward by Hearn’s defense team that showed “shifting” expert testimony concerning “whether the damage [he] allegedly caused was in excess of $1,000.”
“Allegiance to the president only gets you so far,” Jeffrey Bellin, a criminal law professor at Vanderbilt University who previously served as a prosecutor in the D.C. U.S. attorney’s office, told Bloomberg. “Once it becomes apparent that a charge lacks evidence, a prosecutor has an ethical and legal obligation to dismiss.”
“There was a possibility that had this case gone forward, the judge might have made findings or inquiries into members from the U.S. attorney’s office who were involved in bringing the case or required disclosure of information relating to the grand jury that could have led to ethical inquiries,” Alexis Loeb, a partner at Farella Braun + Martel LLP who also previously worked at the D.C. U.S. attorney’s office, added.