The DOJ says more details are coming. Perhaps they’ll help determine whether Lemon was part of the rabble or just sympathetically reporting on the rabble.
As various outlets are reporting, Don Lemon, the former CNN newscaster and host, was arrested Thursday night at the Grammy awards in Los Angeles. The arrest — though not the manner of it — appeared inevitable when a magistrate judge refused to issue an arrest warrant for him in connection with the storming of Cities Church in Minneapolis.
Warrants were issued for several people in connection with that incident, which was an anti-ICE “direct action,” which is how radical leftists (led by “community organizers”) euphemistically refer to their criminally extortionate tactics. I discussed the mag-judge’s refusal to issue the warrant last week, here.
The reports I’ve seen, like these from the New York Times and Fox News, do not specify what the procedural basis for the warrant is. By that, I don’t mean the factual basis — as I explained last week, we know the government alleges that the Cities Church invasion was a civil rights violation, and that Lemon was an active participant, not merely a journalistic observer. By “procedural basis,” I am referring instead to the court action by which the warrant was issued. I imagine we’ll learn about that later today.
As this is written, Attorney General Bondi has posted on X that the arrest was made “at my direction, early this morning,” but it does not say whether Lemon and the others arrested in the last day (Trahern Jeen Crews, Georgia Fort, and Jamael Lydell Lundy) have been indicted.
It seems to me there are three possibilities.
Possibility one, the Justice Department could have gone to the grand jury and gotten an indictment. That would be a formal finding that charges are supported by probable cause, based on which the federal court would automatically issue an arrest warrant. This is possible, but civil rights investigations often take time. That’s why the original arrests were made based on criminal complaints — which, essentially, are affidavits by FBI or other federal agents that explain the charges and the supporting evidence alleged by the government to amount to probable cause. It’s only been a few days since that happened, so I’d be surprised (but not shocked) if the DOJ got an indictment already.
Possibility two, which I see as the most likely, is that the feds just beefed up the evidentiary probable cause showing in a new complaint and, this time, convinced a judge (or, more likely, mag-judge) to issue an arrest warrant.
Possibility three, the least likely, is that the government presented the same complaint that had been rejected to a different mag-judge or a full-fledged district judge, this time convincing the court to issue the warrant.
Whatever way the government went about it, this is notable: The DOJ knows Lemon is represented by counsel — the well-known Washington lawyer Abbe Lowell. That means the government could easily have informed Lowell that a warrant had been issued for Lemon and arranged to have Lemon voluntarily surrender to be processed (fingerprints, photographs, interview by the court’s pretrial services office) and then presented in court.
Instead, the DOJ chose to arrest Lemon at a very public celebrity event in Los Angeles. And prosecutors and agents reportedly carried out the arrest at night, which I presume means that Lemon spent the night in a detention facility. (Obviously, had he been allowed to surrender voluntarily, that would have been done earlier in the day — in enough time for Lemon to appear in court and be released on bail.)
Two other things worth noting at this stage.
First, I’ll repeat what I said in last week’s post about Lemon’s claim that he was functioning as a journalist, not part of the rabble, at the Cities Church incident:
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.
That is to say, assuming there is an indictment, whether now or in the near future, if Lemon is going to have to try to get the case thrown out on a pretrial motion to dismiss; the First Amendment does not protect a journalist from being charged with a crime; it may protect him from being convicted.
On that score, I recently addressed some protections journalists have, and don’t have, in connection with the search warranted executed at the home of Washington Post reporter Hannah Natanson. The posture is different — Natanson is a witness from whom the government was seizing relevant evidence of a potential classified-information offense; Lemon is a defendant whom the government accuses of criminal behavior. But the bottom line is substantially the same: The Justice Department gives the press a wide berth based on regulations and norms that honor the First Amendment’s acknowledgment of a free press; there is a reluctance to prosecute or compel the production of information. But the Constitution is not a press shield. If a reporter violates a criminal statute — whether or not ostensibly in the course of journalistic reporting — the First Amendment does not immunize the reporter from prosecution. (Note that when President Trump claimed to be immune from criminal prosecution because his actions were within the scope of his executive authority, the legacy press retorted that no one is above the law; but when it’s one of their own, the press wants immunity as broad as Trump was claiming.)
On the other hand, if a reporter truly was acting as a journalist, that may influence a court’s assessment of whether ambiguous evidence shows true criminally culpability. For example, unless there is evidence of involvement in conspiratorial planning or hands-on forcible activity, it would be tough to prove beyond a reasonable doubt that a reporter who was merely present at a riot was not investigating it for journalistic purposes, rather than actionably participating in it.
We’ll have to see what the government has to say about its evidence. Clearly, it was enough to convince either a grand jury or a court that there was probable cause to issue an arrest warrant. But that’s a much lower standard than the government would have to meet at a trial.