In Ending Case against Davey Hearn, Judge Declares: No Crime Was Committed
I confess I always expected that Judge Todd Edelman would dismiss, with prejudice, the case charging Davey Hearn with damaging the reflecting pool. It was simply a too volatile case to leave Hearn hanging. I just didn’t know how he’d do it: Whether he’d comment on the seeming false claims from a National Park witness or misconduct from Jeanine Pirro’s people, or simply write a cautious opinion.
His opinion dismissing the case with prejudice is fairly modest — and as such will be virtually unassailable if Jeanine Pirro or some replacement flunky decides to do Trump’s bidding again. It endorses no claims of misconduct from Hearn’s team, however well substantiated (though it does gently question Pirro’s claim they rushed to indict this to deter others, noting that most Superior Court cases take most of the nine months they have to indict). With one exception (his citation of a NYT story describing the contractor taking blame, which came out on September 11), he relies exclusively on the evidence the government and Hearn (in a still-sealed exhibit) submitted about the renovation. Even where it cites Donald Trump’s interference in the case — and that’s almost the entirety of where Edelman places the responsibility for his decision — Edelman explicitly “has set aside descriptions of the President’s non-public statements and thought processes that appear in various news articles cited by the defense.”
But after listing 6 of Donald Trump’s rants in the wake of the dismissal of this case, Edelman then points to Trump’s lingering threat as the ongoing harm, including a harm that might chill political activism, that necessitates dismissing with prejudice.
But in this case, Mr. Hearn faces an additional—and practically unprecedented— type and degree of risk should the Court dismiss this case without prejudice. As elucidated supra, the government has conceded that its prosecution of Mr. Hearn was meritless and cannot identify any potential evidence or avenue of investigation that would allow it to reinstitute the case in good faith. Despite the existence of substantial evidence that Mr. Hearn committed no crime, the President of the United States himself has repeatedly and publicly criticized the government’s decision to dismiss the case and pushed it to recharge Mr. Hearn.13 Notwithstanding the compelling evidence cited by the Office of the United States Attorney attributing the damage to the Reflecting Pool to the misfeasance of the contractor, President Trump has repeatedly declared that vandals (including Mr. Hearn) were responsible.14 He has made his opinion that the government should not have moved to dismiss this case abundantly clear, calling that decision “terrible” and “stupid,”15 ridiculing United States Attorney Pirro for having “choked”16 and “folded like an umbrella,”17 and adding that those who disagree with his assessment need to “go back to Law School.”18 The President has stated that United States Attorney Pirro – his appointee – should reconsider her “hastily made decision” to drop the prosecution.19 Most concerningly, he has suggested a political basis for his requests, maintaining that that the government should reinstitute this criminal prosecution “especially since” Mr. Hearn has donated to ActBlue, a Democratic Party-affiliated fundraising platform,20 and is represented by Mr. Eisen.21 And the President has indicated that he has not decided whether to fire the United States Attorney regarding her decision not to pursue this case.22 The government acknowledges, of course, that it could change its mind regarding its decision to prosecute Mr. Hearn – that it could even do so “[t]en minutes from now,” 9/4/26 Tr. at 11:13 – and that President Trump can fire and replace the United States Attorney and any of her assistants at any time, id. at 14:20-24.
The President’s public posts and comments illuminate the extraordinary nature of the risk to Mr. Hearn should the Court dismiss this case without prejudice. Although the prosecutors assigned to this case have deemed it meritless, the President of the United States has repeatedly disparaged them and pressured them to change course. Mr. Hearn thus finds himself differently situated than any of the other defendants who have had their cases dismissed in Superior Court: while the prosecutors admit that the evidence indicates that he committed no crime, the President’s statements create a risk that Mr. Hearn will be prosecuted nonetheless, either because the current United States Attorney and her assistants will eventually yield to his public pressure campaign or because the President will replace them with prosecutors more likely to carry out his wishes. Additionally, Mr. Hearn would have to await the decision as to whether the government revives a criminal case against him knowing that should he engage in political activity, his conduct could be viewed by the President as a reason to reinstate the prosecution. [my emphasis]
Edelman says Hearn’s case is “practically unprecedented.” But then he limits his comparators to what he knows, the DC Superior Court.
Because, of course, Hearn is not unique. Judges all over the country are struggling with how to achieve justice in these wildly politicized cases.
And to that end, Edelman repeats one thing over and over: No crime was committed.
Because that’s the kind of judgment that Hearn can use to pursue further justice.
