The indictment towards journalist Don Lemon and eight others will doubtless be dismissed as a result of it hinges on a cost that’s seen as so constitutionally flawed that the Justice Division’s Civil Rights Division has by no means tried to make use of it to prosecute interference in a home of worship, authorized consultants say.
The Jan. 29 indictment alleges that the defendants’ involvement in an anti-ICE protest on the Cities Church in St. Paul violated the FACE Act, which prohibits individuals from intimidating or interfering with individuals exercising their constitutional freedom to apply faith. It additionally prices them with a felony of conspiring to intervene with people’ non secular rights.
They’re on account of be arraigned on Friday.
The issue, some former Civil Rights Division attorneys say, is that the part within the FACE Act criminalizing interference at homes of worship basically misstates the rights individuals have beneath the First Modification.
The First Modification protects people’ non secular freedom from authorities interference. But it surely doesn’t defend them from interference by personal people, just like the protesters and journalists charged within the indictment, they are saying.
Congress handed the FACE Act in 1994 to handle rising issues about threats and intimidation that ladies had been dealing with at reproductive well being clinics.
Since then, it has solely been utilized by the Justice Division to prosecute individuals accused of interfering with entry to medical care at such clinics — and never at homes of worship — as a result of courts have discovered that interfering with entry to a reproductive well being clinic impacts interstate commerce.
The constitutional issues with the legislation, as associated to worshipers, are a part of the rationale prosecutors have by no means tried to make use of it in a non secular freedom case.
It is also only one in a sequence of crimson flags that former Justice Division officers consider may spell bother for the case and result in a fast dismissal.
“This isn’t a respectable use of the FACE Act. That is wholly exterior the core objective that the legislation was handed, and I cannot be shocked if these instances are rapidly thrown out,” stated Kristen Clarke, the previous Assistant Legal professional Normal for the Civil Rights Division.
A Justice Division spokesperson didn’t reply to questions in regards to the choice to make use of the FACE Act on this case.
No possible trigger and no profession prosecutors
From the second the Justice Division’s Civil Rights Division tried to cost Lemon, journalist Georgia Fort, Lemon’s driver and native activists who attended the protest, officers have run into street blocks.
Lemon’s lawyer has beforehand stated he was there to cowl the occasion in his capability as a journalist, whose actions are protected by the First Modification.
The affidavit in assist of the grievance was made by an ICE agent with lower than a yr of expertise. Affidavits in instances like this are normally filed by FBI brokers, since they’re those investigating felony civil rights violations.
Doug Micko, a Justice of the Peace choose within the District of Minnesota, rejected arrest warrants for Lemon and 4 others on the FACE Act misdemeanor cost and a second felony civil rights cost alleging they conspired to violate the churchgoers’ rights.
He additionally rejected the FACE Act cost for a number of others who had been arrested, together with distinguished native activists Nekima Levy Armstrong and Chauntyll Allen, writing “no possible trigger” within the margin of the warrants.
“This is not a prosecution of First Modification rights — this prosecution is a violation of First Modification rights,” Levy Armstrong’s lawyer Jordan Kushner advised CBS Information.
When the Justice Division requested the chief choose to evaluate Micko’s choice, and he was unable to reply as rapidly because the division wished, it requested a federal appellate court docket to intervene and pressure the decrease court docket to signal the arrest warrants. That court docket declined to take action.
In court docket filings associated to the attraction, Minnesota Chief U.S. District Decide Patrick Schiltz additionally criticized the energy of the proof towards the journalists, noting “there isn’t any proof” that they “engaged in any felony conduct or conspired to take action.”
Profession prosecutors within the U.S. Legal professional’s Workplace in Minnesota, in the meantime, additionally refused to become involved within the case as a result of they had been involved in regards to the lack of proof that the defendants had dedicated a federal crime, a supply beforehand advised CBS Information.
Regardless of resistance from judges and profession prosecutors, the Justice Division’s Civil Rights Division rushed to indict Lemon, Fort, and the co-defendants for violating the FACE Act and for conspiring to intervene with the churchgoers’ non secular rights.
The indictment solely names politically appointed Justice Division attorneys within the Civil Rights Division.
One of many important attorneys assigned to the case — Orlando Sonza — is a failed Ohio Republican congressional candidate who graduated from legislation faculty in 2022 and whose solely prosecutorial expertise till now entailed working within the Hamilton County Prosecutor’s Workplace over the course of a few yr and a half as an intern, a legislation clerk and assistant prosecutor, in response to his personnel file seen by CBS Information.
A second Civil Rights Division lawyer who was added to the case after the indictment was returned, Greta Gieseke, can be a 2022 legislation faculty graduate who’s assigned to the Civil Rights Division’s appellate part.
A 3rd lawyer added to the case, Josh Zuckerman, is a 2020 legislation faculty graduate who labored as an affiliate for 4 years on the multinational legislation agency Gibson Dunn earlier than becoming a member of the Justice Division.
A couple of hours after CBS Information sought remark, Civil Rights Division Appearing Deputy Affiliate Legal professional Normal Robert Keenan, who beforehand appeared in court docket throughout an preliminary look for a number of of the defendants, formally entered an look within the case.
Keenan is a longtime federal prosecutor from the U.S. Legal professional’s Workplace in Orange County, California, although he has not dealt with many civil rights issues, a evaluate of court docket filings present.
He was co-counsel on a 2001 shade of legislation prosecution involving two jail staff, one among whom was acquitted at trial, in response to court docket filings and sources accustomed to the matter.
Final yr, he argued {that a} native deputy sheriff convicted of civil rights violations in California ought to have the felony counts struck and mustn’t serve jail time, prompting a number of of his colleagues to resign.
A couple of months later, he was dispatched to Louisville to deal with the sentencing for a former Louisville police officer who was convicted of violating Breonna Taylor’s civil rights, the place the Justice Division beneficial the choose to impose a sentence of simply at some point of imprisonment and three years of supervised launch.
“The Division of Justice stands firmly behind the extremely certified attorneys entrusted with imposing federal legislation,” a division spokeswoman advised CBS Information.
She added that Sonza helped convict a defendant in a felony rape trial in Ohio, whereas Gieseke dealt with “complicated civil and felony issues” whereas clerking in federal district and appellate courts.
Keenan, she added, “is a profession federal prosecutor with greater than 25 years of expertise.”
For the reason that indictment was returned, Justice of the Peace Decide Micko has scolded the attorneys on the case for divulging the main points of sealed filings in public court docket paperwork, and warned them that future violations “is not going to be tolerated.”
“When a federal prosecutor comes to a decision to cost somebody criminally, it’s crucial that the Justice Division have a seasoned, sage and skilled prosecutor to vet that course of,” stated Gene Rossi, a former federal prosecutor. “When politics enters that course of, unhealthy issues occur.”
One defendant within the Minnesota case filed a movement this week to dismiss the indictment, arguing that it fails to state a federal offense towards him.
Uneven enforcement of FACE Act beneath Bondi
When it was enacted 31 years in the past, the Freedom of Entry to Clinic Entrances Act, or FACE Act, was primarily supposed to forestall sufferers at reproductive well being clinics from dealing with threats as they sought care.
To win Republican assist in Congress, GOP Sen. Orrin Hatch of Utah prolonged it to incorporate homes of worship as a compromise with Democrats.
Over time, the Justice Division has efficiently secured convictions towards each abortion opponents attempting to dam entry to reproductive well being clinics and abortion rights activists.
The explanation why that a part of the legislation has confirmed profitable is as a result of courts have discovered that reproductive well being clinics are industrial companies, and subsequently engaged in interstate commerce, stated Laura-Kate Bernstein, a former Civil Rights Division prosecutor who dealt with FACE Act instances.
“There’s a wealth of litigation and circuit court docket choices holding that the reproductive well being facet of the FACE Act are constitutional,” she advised CBS Information, noting that well being care clinics are “inherently interstate” in how they function as a result of they obtain medical provides and provide providers to out-of-state sufferers.
A church, nonetheless, is usually an area operation that isn’t engaged in interstate commerce. That and the constitutional issues have made it untenable to make use of in any felony case, she stated.
“There actually is not any interstate commerce clause hook,” she stated, noting that the indictment additionally fails to quote one.
Even because the Justice Division has sought to make use of the FACE Act as a prosecutorial instrument on this case, it has scaled again enforcement in different contexts.
Three days after President Trump took workplace, he issued almost two dozen pardons to anti-abortion activists who had been charged in FACE Act instances.
The next day, the previous appearing Affiliate Legal professional Normal Chad Mizelle ordered the Civil Rights Division to right away dismiss three pending FACE Act prosecutions involving anti-abortion activists and to stop pursuing any new instances until that they had permission from the pinnacle of the division.
Pam Bondi, on her first day as lawyer normal, ordered the Weaponization Working Group to evaluate prior FACE Act prosecutions throughout President Joe Biden’s tenure to see in the event that they unfairly focused conservative Christians.
A evaluate of these instances remains to be pending and is predicted to be carried out, in response to one supply with direct information of the working group’s plans.
On the similar time, nonetheless, the Justice Division has allowed FACE Act instances involving protesters at disaster being pregnant facilities that discourage abortions to proceed with out interference.
In a single such case, the Justice Division’s profession civil rights prosecutors had been permitted to proceed with a felony case in Florida’s Center District towards abortion rights activists who had been accused of attempting to scare volunteers and staff at a disaster being pregnant clinic that recommended on alternate options to abortion.
The defendant who went to trial was finally sentenced to a 120-day jail time period in March 2025.
Some former division attorneys say the uneven utility of the FACE Act is proof of the weaponization of the Justice Division towards Mr. Trump’s political enemies.
“We now have seen throughout the civil rights statutes that the division enforces the methods through which they’ve weaponized using these legal guidelines, to not defend the civil rights of individuals of this nation, however to additional their political agenda,” stated Johnathan Smith, a former deputy assistant lawyer normal within the Civil Rights Division.
“I feel this use of the FACE Act is per that sample.”
