The arrest of Don Lemon is a five-alarm fire for the First Amendment

Two courts told the Department of Justice that he and another journalist couldn’t be arrested for covering a church protest. The Trump regime went ahead anyway, following the authoritarian playbook.

Former CNN anchor Don Lemon, now an independent journalist who’s been covering the anti-ICE protests in Minneapolis, has just been arrested, along with local independent journalist Georgia Fort, for covering an anti-ICE protest inside a church in St. Paul over a week ago. Lemon was taken into custody in Los Angeles, while Fort, speaking on a Facebook Live video she made as federal agents were outside her door, was arrested in Minneapolis.

The January 18th service at St. Paul’s Cities Church, an evangelical denomination, was disrupted by anti-ICE protestors, speaking out against the pastor, David Easterwood, who leads the local ICE field office. Protesters live-streamed the event, at which they chanted “Justice for Renee Good!” and “Ice out!”

Pam Bondi and the DOJ began an investigation and vowed revenge. Three protesters, including prominent Black civil rights attorney Nekima Levy Armstrong, were arrested last week and charged, in an Orwellian twist, under the federal Ku Klux Klan Act of 1871, which was passed to protect newly freed slaves from violence and intimidation. But a district court judge, and later an appeals court, refused to issue warrants the DOJ sought for Don Lemon and other journalists, citing First Amendment protections.

Let’s stop here to point to how unusual—and authoritarian—the Trump regime’s actions are. People certainly have the right to protest a church on public property outside, even while a service is being performed. Once protesters go inside and disrupt and don’t leave when told, they are engaging in civil disobedience. There have been many protests inside churches and many arrests.

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ACT UP, the AIDS Coalition to Unleash Power, and WHAM!, Women’s Health Action and Mobilization, for example, famously protested inside St. Patrick’s Cathedral in New York in 1989, speaking out against the Catholic Church’s public positions on AIDS prevention, homosexuality and abortion. Thousands protested outside, and over a hundred people were arrested, including 43 to 53 who engaged in non-violent civil disobedience inside the cathedral during a service they disrupted.

As with most protest, this was a local issue handled by the local police, the NYPD, and local courts. Protesters were arrested, processed and and quickly released. While charges weren’t dropped, as is often the case with protesters, the demonstrators were charged with misdemeanor charges under state law. Some were sentenced to community service.

I explain this to underscore how perilously overreaching it was for the Department of Justice to come in and investigate people protesting at City Church in St. Paul—a local, private church, not a federal facility—and then to file federal charges, using the KKK Act (against Black protesters!), to pursue federal prosecution of a group. The DOJ also charged the group with conspiring to deny people the right to worship under another federal law which requires showing use of force among those charged (and there was no force used by the protesters).

And then to go after Lemon and Fort, claiming that they had prior knowledge of the protest and thus were part of it, is not only preposterous; it’s exceedingly dangerous. Journalists are almost always tipped off about protests, including civil disobedience, a tradition that goes back decades in this country. I was on the ACT UP media committee and we routinely informed reporters about actions the group would take as we wanted to of course publicize protests.

It’s standard operating procedure, protected by the First Amendment. Media has of course been informed about actions—including acts of trespassing—of right-wing protesters too, from Operation Rescue’s interference at abortion clinics to the Tea Party disruptions and, yes, the “Stop the Steal” rally itself that led to the January 6th insurrection. No journalists were arrested, though I’m betting Fox News and other conservative outlets had a lot of inside information of actions that might occur.

When the Trump DOJ attempted to get arrest warrants for Lemon and Fort, the magistrate judged denied them. The DOJ appealed to the chief federal district court judge in Minnesota, Patrick Schiltz, who described the Justice Department’s request as “unheard of” in his jurisdiction. Schiltz is a George W. Bush appointee who has been described as “an ethicist in the Scalia mold,” as he had clerked for former conservative Justice Antonin Scalia. As a law professor, one of his students was Amy Coney Barrett, who would then go on to clerk for Scalia as well—and to join the Supreme Court.

Rebuffed by Schiltz, the DOJ took the also unheard-of and zealous step of appealing to a higher court for an arrest warrant. The Eighth Circuit Court of Appeals—one of the most conservative appeals courts in the country—also declined the warrant. All three judges on the three-judge panel agreed not to intervene.

That meant the DOJ’s only recourse was to go to a grand jury, where of course only the government’s side is presented. According to CBS News, “A source familiar with the matter said a grand jury was empaneled Thursday. The FBI and Homeland Security Investigations, a law enforcement agency within the Department of Homeland Security, were involved in the [Lemon] arrest, sources say.”

As the Guardian last week reported, Lemon had predicted they’d get him:

Lemon told Scripp News anchor and contributor Alisyn Camerota, his former CNN colleague, that he was prepared for the Trump administration to continue pursuing him – even if that involves having to “go around a judge”.“

I’m not naive,” Lemon said in his interview with Camerota, published on Saturday. “They just don’t give up because they – you know – they want to save face.

“If there’s no law to fit, they will try to fit or retrofit something or go around a judge and just do it themselves.”

According to MS Now, career prosecutors in both Minnesota and Los Angeles refused to be involved in charging Lemon and Fort, believing the evidence just isn’t there. It’s likely this will be thrown out of court, as we’ve seen with other prosecutions by the administration of Trump’s perceived enemies.

But this one is different in that it’s another shot across the bow to journalists.

As with his myriad of lawsuits against the media, Trump is sending a message that he’s intent on harassing, intimidating—and silencing—the press through bogus arrests, too, and attempts to incarcerate them. Trump is once again turning to the tactics of Russia’s Vladimir Putin and Hungary’s Victor Orban—and Adolf Hitler and other dictators. It’s what strongmen do, and it’s yet another thing we all have to be very worried about.