Consider it an indictment of Trump lawfare against political enemies and scapegoats.
Consider it an indictment of Trump lawfare against political enemies and scapegoats.
A Washington, D.C., judge has dismissed with prejudice the charges against former Olympic canoeist David Hearn in the now-notorious Reflecting Pool case. That means the case is closed: Because of the administration’s abusive conduct, the charges may not be reinstated at some later time. Judge Todd E. Edelman cited President Trump’s unseemly attacks on the defendant and his counsel, and public pressure on his subordinate, District U.S. Attorney Jeannine Pirro, to reinstate charges she dismissed because of the dearth of evidence. (See Jeff Blehar’s excellent piece for more on the case, here.)
Hearn was charged with felony destruction of government property for allegedly vandalizing the Lincoln Memorial Reflecting Pool that the president vowed to repair before the July 4 observance of the republic’s 250th anniversary. The pool has been plagued by chronic plumbing problems, corrosion, and algae blooms since being built more than a century ago.
On June 19, 2026, Hearn was seen by U.S. Park Police tugging at a portion of the blue pool coating. The administration, echoing the president, attempted to blame the pool’s renovation problems on anti-Trump vandals. Consistent with that view, Hearn was charged by Pirro, Trump’s Senate-confirmed U.S. attorney, even though Hearn held that he had only touched a piece of the blue coating that was already peeling off and had not exacerbated the damage. On further investigation, Pirro’s office determined that the parlous state of the Reflecting Pool was because of missteps by contractors the administration had hired. She moved to dismiss the charges against Hearn without prejudice to their being reinstated; it was obvious, however, that the government could not win a conviction beyond a reasonable doubt.
News of the dismissal sent the president into orbit. He assailed Pirro in public statements and on his social media site. He similarly attacked Hearn as a progressive activist and lambasted Hearn’s attorney, Norm Eisen — formerly President Obama’s White House ethics counsel and a lawyer on the Democratic-controlled House Judiciary Committee during Trump’s first impeachment in 2019–20 (the Ukraine impeachment).
Hearn, naturally, did not object to the Justice Department’s dropping of the charges. He argued, however, that the dismissal should be with prejudice — meaning the case could not be revived (as if the dismissal were the functional equivalent of an acquittal at trial, resulting in double jeopardy protection).
Pirro had brought the case in the District of Columbia Superior Court, rather than the U.S. District Court, as the government has the option to do in Washington, a federal city. It was assigned to Judge Edelman, an Obama appointee whom Presidents Obama and Biden both tried to appoint to the U.S. District Court, only to be blocked by Senate Republicans.
Today, Edelman issued a scathing 26-page opinion granting Hearn’s request for dismissal with prejudice.
The Superior Court follows an analogue to Rule 48(a) of the Federal Rules of Criminal Procedure, the standard that purports to allow the Justice Department to dismiss charges with “leave of the court.” I say “purports” because, as a matter of constitutional law, the decision whether to persist in pursuing criminal charges is the exclusive province of the executive branch — the DOJ should not need a judge’s permission to dismiss a case (and the judge would be in no position to order the government to prosecute a case it wished to drop).
This principle creates a presumption that the government may revive criminal charges it has dismissed — i.e., a presumption that dismissals are without prejudice. Nevertheless, the courts have found that judges have limited leeway to dismiss with prejudice if the purpose of holding open the possibility of revived charges is to harass the defendant or is patently contrary to the public interest. (We discussed Rule 48(a) and the issue of dismissal with or without prejudice in connection with the Trump DOJ’s attempt to reserve the right to revive charges it had dropped against former New York City Mayor Eric Adams — an attempt that was rejected by a Manhattan federal judge.)
Edelman concluded that he had such leeway in this case. He pointed to the overwhelming evidence that the damage to the Reflecting Pool has been the result of contractor misfeasance — i.e., it’s not just that proof against the defendant is scant; the known evidence shows a different actor is responsible for the damage to property that has been alleged.
The judge also tracked the president’s public commentary, for example:
On August 7, 2026, President Trump returned to Truth Social to claim that reporting had uncovered “pure VANDALISM at The Reflecting Pool.” He went on to urge Ms. Pirro to reinstate the case, particularly in light of the purported political affiliations of Mr. Hearn and his use of Norm Eisen as one of his attorneys, writing: “U.S. Attorney Jeanine Pirro should re-visit her hastily made decision, especially since it turned out that the ‘gentleman’ involved is a big player in ActBlue, a disgraceful fundraising SCAM, and is represented by a TRUMP DERANGED SLEAZEBAG, Political Hack Lawyer, Norm Eisen, and CREW, a group that uses ‘charity’ for political purposes which is, to the best of my knowledge, ILLEGAL! I have been beating Eisen, a complete LUNATIC, in Court for 10 years, or more. He just keeps coming, but I always WIN!”
The upshot, in the court’s assessment, was that Trump was improperly pressuring Pirro to keep the case open (indeed, to promptly recharge the case) in order to both shift blame for the Reflecting Pool debacle and to use legal processes to addle and intimidate his political enemies — i.e., lawfare.
Even if Judge Edelman’s assessment is correct — and I don’t think there’s any question that it is — the authority of a judge to dismiss with prejudice is not clear-cut. To my mind, the appellate courts would probably sustain Edelman’s order, and the Justice Department would be foolish to appeal, which would just call more attention to this fiasco. But the president did indecorously pressure Pirro to keep pursuing the hopeless prosecution, and he could equally well pressure Attorney General Todd Blanche to pursue an appeal.