A man who was detained for a week after being accused of threatening President Donald Trump during a property damage arrest in Washington, D.C., only to have U.S. Attorney Jeanine Pirro’s office drop the felony charge, is now using Pirro’s words against her in an attempt to formally dismiss the case and expunge the arrest for good.
On August 19, Edward Alexander Dana was charged federally by complaint after allegedly making a true threat to kill Trump. According to an affidavit filed by the US Secret Service, an intoxicated Dana “was seen damaging a light fixture by pulling it off the exterior wall of the restaurant” and, when confronted by patrolling feds, “described himself as a ‘person with intellectual disabilities.'”
“This is Donald Trump’s way of saying, hey, I can look like Putin,” he allegedly said, adding “I’m not going to tolerate fascism” and “You see, I was adopted [inaudible] to protect the Constitution by any means necessary.” This includes assassinating officers, Presidents, and anyone who opposes our Constitution. If you try to undermine our Constitution, I will f—ing kill you.
As CBS News reported in early September, U.S. Magistrate Judge Zia Faruqui slammed the DOJ over the Dana case, highlighting the growing number of cases where grand juries declined to indict.
Pirro’s office failed to secure a felony indictment against a fired DOJ paralegal who “threw a sandwich” at a federal agent; failed to indict a woman accused of “inflicting bodily injury” on an FBI agent while that agent and another officer attempted to “transfer […] two known gang members” into FBI and ICE custody outside of the D.C. Central Detention Facility; and failed to indict Dana, which the government acknowledged in a Sept. 8 statement.
Faruqui reportedly stated days earlier that the exceedingly rare series of DOJ indictment failures — as well as the decision to drop the threat against Trump charge that could have landed Dana in prison for up to five years — was a “embarrassment” that demonstrated the government’s inability to back up its charges with evidence sufficient to meet the probable cause standard.
The magistrate judge reportedly added that “too many misfires” suggested the government was more concerned with arrest numbers than anything else during Trump’s crackdown on “violent gangs and bloodthirsty criminals, roving mobs of wild youth, drugged-out maniacs, and homeless people.”
“Why is the government not out of sheer embarrassment and shame seeking to dismiss with prejudice and expunge the record?” Faruqui wondered, according to WUSA, a local CBS affiliate.
Dana’s defense lawyer is now attempting to force this outcome, including stern words for U.S. Attorney Pirro on Sunday.
The DOJ, noting in a footnote that Dana “has 23 prior arrests and 9 prior convictions,” argued against dismissing the case with prejudice, which would prevent the case from ever being brought again, while stating that it had no intention of “re-bring charges arising from these events in federal court against this defendant.”
Federal Public Defender A.J. Kramer has since countered that dismissal with prejudice is appropriate, stating that “any attorney or law student” would know from a “brief perusal of Westlaw” that U.S. Supreme Court precedent is clear about what “true threats” entail, and that the alleged facts against Dana fell far short.
“An objective review of the evidence and a basic understanding of the law should have led the government to the conclusion that this was not a case to prosecute in federal court under Section 871,” according to the motion. “But, apparently ignoring its own Manual and the law and the facts, the government elected to charge Mr. Dana by complaint with Threats to the President and requested his pre-trial detention under the Bail Reform Act.”
Worse, the government’s stated intention not to pursue the threat against Trump charge ignores the fact that Pirro’s office may still seek additional federal charges in connection with this incident, according to the filing.
“The complaint in this case charges Mr. Dana with making threats against the President. Kramer argued that the Superior Court complaint charges misdemeanor destruction of property and misdemeanor attempted threats. “The government is seeking leave to keep open the option of refiling felony threat charges for the remaining allegations in the federal complaint at some later time—perhaps when a new grand jury is empaneled.”
“Doing so ‘would objectively amount to harassment’ by allowing ‘the prosecutor to dismiss charges but nevertheless keep them in abeyance for an indefinite period of time in the hope of expectation that something will turn up to remove the complications’ of the initial prosecution,” according to the defense argument.
According to the defense, one of the “unusual circumstances” that make this case prime for expungement and dismissal with prejudice is the “excessive” charge failing to be heard by a grand jury, as in previous cases. However, Pirro’s public criticism of the grand jury is a sufficient reason.
The grand jury is an important constitutional protection against trumped up charges and a feature of our criminal justice system, not a bug. The Fifth Amendment guarantees that no American will be subject to a felony prosecution without the government first proving to a grand jury of the defendant’s peers that it has probable cause to initiate the prosecution. U.S. Const. amend. V. Current events are proving in real time why the Founders put this protection in place. The U.S. Attorney’s statements publicly disparaging the work of the grand jury is yet another unusual circumstance justifying dismissal with prejudice.
The line appears to refer to Pirro’s comments about the grand jury “no bills” in Dana’s case and one against Nathalie Rose Jones as the “essence of a politicized jury.”
“The system here is broken on many levels,” Pirro allegedly stated. “Instead of the outrage that should result from a specific threat to kill the president, the DC grand jury refuses to even begin the judicial process. Justice should not be based on politics.
