Lemon may have a very strong First Amendment defense if he is charged, but that does not grant him immunity from being charged.
There are reports on social media (see, e.g., this one from CBS News) that a federal magistrate judge in Minnesota has refused to authorize an arrest warrant for former CNN host Don Lemon in connection with the storming of Cities Church in Minneapolis during worship services by a mob of anti-ICE protesters last weekend. (See this report by our Brittany Bernstein.)
I don’t know if it’s true. It would make sense that the court was asked to issue arrest warrants because the Justice Department already announced charges and arrests of others, including Nekima Levy Armstrong and Chauntyll Louisa Allen. (See posts by Attorney General Pamela Bondi.) And Lemon was certainly present among the activists, according to reporting and his own public statements.
AG Bondi and Vice President JD Vance are in Minneapolis today, so it was obvious that major law enforcement news was expected. Moreover, this week, the Trump Justice Department’s civil rights chief, Harmeet Dhillon, engaged in public back-and-forth with Lemon: She put him on notice that the DOJ was contemplating action because the First Amendment, she said, does not protect “your pseudo-journalism of disrupting a prayer service”; Lemon told Fox News that it was “a protest I was covering as a journalist.”
I don’t know any more about what Lemon did than what’s been reported. At this early stage, I would just say this: The only job a magistrate judge has when the government seeks an arrest warrant is to determine whether the assertions by the federal agent who has sworn out the complaint amount to probable cause that a crime was committed.
When the government seeks an arrest warrant, that is not a trial. It is not even a grand jury presentation — at which, similarly, the person targeted is not present and does not get to present his side of the story. The only question is whether there is probable cause; making one’s defense happens later.
Lemon may have a very strong First Amendment defense if he is charged with a violation of the FACE Act, which, in addition to “freedom of access to clinic entrances” (i.e., protection of access to abortion), criminalizes similar interference with the exercise of religious liberty at places of worship. (See Section 248 of the federal criminal code.) The same would be true if he were charged with a violation of the civil right statutes in federal criminal law (see, e.g., Section 241, conspiracy against rights). But understand: this would be a defense if he is charged with a crime. It is not immunity from being charged with a crime in the first place.
As we’ve noted before, magistrate judges are not full-fledged Article III judges. They are lawyers who work for the court. They lighten the load of district judges by carrying out various tasks, including fact-finding in litigation. In that capacity, they are routinely asked to issue arrest or search warrants based on probable-cause affidavits. (Such an affidavit is called a “complaint” when filed in support of an arrest.) If the magistrate judge makes a determination to which the government objects, prosecutors can bring the dispute to a district judge, who can overrule the magistrate judge.
We’ll see what happens. To be clear, the Justice Department should not bring a case in the first place if it believes that a person has a constitutional defense to the charge. On the other hand, constitutional rights are not absolute, and First Amendment free speech (including protest and dissent) and free press rights do not permit people to break criminal laws. In any event, if there is a First Amendment defense, that is something that gets litigated in a criminal case after a person has been charged, not before.