Why Indict Don Lemon?

Don Lemon was taken into custody Thursday night by federal agents in Los Angeles, where he was covering the Grammy Awards. DOJ indicted him for being a journalist covering a protest. The protest was in Minneapolis, and its target was a pastor at a local church whom the group that gathered believed was working for ICE. They interrupted a service to confront him.

Whatever you think about the protest, Lemon and another woman, independent journalist Georgia Fort, were arrested along with the protestors. Prior administrations avoided virtually anything that smacked of interference with the First Amendment when it came to the press. That’s another norm shattered by this administration.

Why indict Don Lemon?

It isn’t about convicting him. It’s unlikely that will happen. It’s about intimidating journalists & attempting to make them censure themselves out of fear of consequences, which can be very expensive, especially for an independent journalist who lacks the backing of a major company. It’s about eroding the free press because the administration can’t afford the criticism.

Why do I say they are unlikely to be convicted? There are a lot of reasons. I’ll offer a couple of illustrative examples, and we can discuss the indictment in more detail if it survives the flurry of pretrial motions to dismiss that are sure to come.

The first charge, 18 U.S.C. 241, the conspiracy statute used to charge civil rights violations, requires that the government establish, beyond a reasonable doubt, that defendants entered into an agreement to “injure, oppress, threaten, or intimidate” someone to prevent or interfere with their exercise of Constitutional rights. In addition to proving there was an agreement, the government has to establish that each defendant knew the unlawful purpose of the agreement and joined in it willfully, which means with the intent to further the unlawful purpose. Good luck with proving that, beyond a reasonable doubt, to the satisfaction of every juror, for someone who narrated on video as he was there that he was present as a journalist to cover the news.

Title 18 U.S.C. 247, the second charge, is from a statute called the FACE Act, which stands for Freedom of Access to Clinic Entrances. This law, ironically, is about protecting access to abortion, but the religious worship provision was added to ensure sufficient Republican support for passage. The government has to prove the defendant used “force or threat of force or…physical obstruction” to intentionally injure, intimidate or interfere with (or attempt to do so) any person who is “lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.” Some of the allegations in the indictment designed to satisfy the force requirement are fairly ridiculous, for instance, this one:

When judges instruct juries about this charge, they use language like this: To "force" a person means to exert or apply physical compulsion or restraint against the person. To "interfere with" means to restrict a person's freedom of movement. To "intimidate" a person means to place the person in reasonable fear of bodily harm either to that person or to someone else. To "physically obstruct" means to block the entry to or exit from a facility that provides reproductive-health services. Perhaps the government has better evidence than what’s in the indictment, but from what we can see, it’s difficult to imagine how they get a jury to convict. A grand jury, of course, is a different matter. No one represents the defendant’s interests there. There is no judge to explain the law—prosecutors get to do that. Two federal judges declined to issue an arrest warrant based on, presumably, at least as good of a factual basis as the government has for the indictment. That should have caused prosecutors pause about whether their case could withstand scrutiny. Apparently, it did not.

So for these and other reasons, the prospect of a conviction for Lemon at trial is bleak. Why do it then?

For one thing, it certainly served as a convenient distraction for a lot of other planned announcements DOJ had on tap today. It consumed the newscycle, predictably, as an attack on a journalist’s First Amendment rights would. It served as a major distraction from at least three key stories:

ICE outrages. Attorney General Todd Blanche, backed into a corner by outrage over DHS agents who shot and killed Renee Good and Alex Pretti, was forced to announce an investigation into Pretti’s death. It’s grotesquely inconsistent, of course, to investigate Pretti’s death but not Good’s, almost as though DOJ has something up its sleeve. Good to have the Lemon indictment to hide behind.

Of course, DOJ controls the timing and intensity of this investigation. These investigations can take months, and sometimes even longer to complete. Making the announcement today in the middle of a huge news dump is consistent with the hope it won’t draw too much scrutiny.

Some folks have speculated that public pressure forced DOJ to backdown and open an investigation into Pretti’s death. But there’s another possibility.

Amid news that Pretti had an earlier altercation with ICE, where he kicked out a police vehicle’s taillights, it’s not difficult to imagine an investigation that portrays him as a dangerous aggressor, with a history of attacking ICE. It’s not true, of course, but that doesn’t matter. DOJ can “investigate” for long enough to let the public’s temperature on this issue go down some and then find, in Trump’s words, that Pretti was an insurrectionist, and the shooting was justified. That’s not true, but they won’t care & they control the timing & the investigation. This isn’t much of a stretch, given the administration’s ability to torture facts out of shape to craft a narrative that serves their narrative.

The Epstein Files. The government released three million pages today. Only three million more to go. In other words, the Trump administration remains in violation of the law, the Epstein Files Transparency Act, which required it to release all of the documents, redacted to protect victims' personal information, last year. They aren’t close. And yet Blanche seemed to be taking a victory lap, using a self-congratulatory tone about the partial compliance of the law, which, whether they are charged with it or not, is tantamount to contempt of Congress.

There are also multiple reports of unredacted pages that outed victims’ and survivors’ information. I won’t include screenshots here to limit the spread. But there was, for instance, an interactive chart showing relationships among various Epstein victims and coconspirators that was released completely unredacted, only to be corrected later in the day when it was too late to protect the women.

Elon Musk had a star turn in today’s release, as did others in Trump’s circle, like his Treasury Secretary and his brand-new nominee for the Fed. “What day/night will be the wildest party on =our (sic) island?” Musk asked Epstein on Nove