Lawyers for former U.S. Olympic canoeist David Hearn asked a D.C. judge on Friday to bar the Department of Justice from ever again trying to charge their client with vandalizing the Lincoln Memorial Reflecting Pool, the latest development in a months-long saga concerning the since-dismissed prosecution that has pitted President Donald Trump against his own U.S. Attorney for Washington D.C.
In July, Hearn was indicted on a single, felony count of vandalism for allegedly ripping up a piece of the newly-installed Reflecting Pool coating – a charge which, if convicted, could have brought a jail sentence of up to 10 years.
A month later, however, the DOJ moved to dismiss those charges, acknowledging the issues with the pool’s coating resulted from a "flawed installation" by the contractor and a rush to complete the project before events associated with the America 250 celebration.
During about an hour of arguments Friday afternoon at the H. Carl Moultrie Courthouse in Washington, Superior Court Judge Todd Edelman questioned why the DOJ is seeking to have Hearn’s case dismissed “without prejudice” – in legal speak, with the ability to bring charges again in the future – when officials have acknowledged they don’t have evidence to prove that Hearn committed a crime.
“There is a presumption in the law in the District of Columbia and elsewhere in favor of dismissals without prejudice when a case is dismissed, in order to allow the government to continue to investigate the case or take steps with prosecuting it on another day,” Edelman said. “Given your determination based on, as far as I can tell, all the evidence that there ever would be as to economic loss, what future prosecution could ever occur?”
“I don't know what the future will bring – none of us do,” Assistant U.S. Attorney Michael Spence said in response. “But if such evidence did come forth, and it addressed the issues the government had in terms of what it viewed as the weakness to the case, there's no reason this court should tie the hands of a future grand jury to bring that down.”
Spence later acknowledged his office was not currently conducting any additional investigation into Hearn or the alleged vandalism incident. Still, “10 minutes from now, that decision could change,” he added.
Hearn’s attorneys argued the initial charge itself was brought in bad faith, and suggested there’s no reason to keep the potential for future prosecution alive.
“The fact is, the government has identified no witness to locate, no witness to interview, no testing to perform, no defect to cure, no evidence it expects to emerge,” one of Hearn’s lawyers, Steve Levin, said. “There is nothing that can save the case that was dismissed, a case that they've acknowledged should never have been brought. So there’s just no valid reason to keep it alive to hold it over Mr. Hearn’s head for five years.”
Judge Edelman declined to rule from the bench, taking the matter under advisement – though he indicated his ruling would come sooner rather than later.
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After the hearing, Hearn delivered a brief statement to reporters outside the courthouse.
“I just want to thank everyone who's out here supporting me and everyone across the country,” Hearn said. “It's not about me. This is about defending democracy.”
In response to a question from Scripps News, Hearn’s attorney Norm Eisen said that while the legal team is currently focused on getting the charges dismissed with prejudice, they’re not ruling out future potential legal maneuvers to seek sanctions against the government or request damages in the form of financial compensation.
"Just look at this magnificent legal team that we have here,” Eisen said. “It would be a shame not to consider every option. They are all on the table right now. [It’s] probably not the last you've heard from myself and my colleagues and Mr. Hearn."
