The Reflecting Pool saga encapsulates so much about the politics of the moment: President Donald Trump’s fixation on local vanity projects over global economic and military crises; the cronyism that resulted in a no-bid contract to a shoddy vendor; the baseless blame-shifting from Trump and his sycophants when it all went to hell; and the concomitant glee from liberals, even if that meant rooting for algae to overrun a national monument.
It’s unsurprising and altogether fitting, then, that the indictment of David Hearn, former Olympian and alleged Reflecting Pool sealant-ripper, has taken on outsized political import. Now Hearn becomes a totem, either a miscreant or a martyr depending on who you ask. While it’s too early to conclusively declare the case against Hearn an abomination – that requires assumptions about facts that simply aren’t known at this point – we’ve already seen indicia of prosecutorial excess, and he’ll likely emerge unscathed.
On Friday, District of Columbia U.S. Attorney Jeanine Pirro called a press conference to announce Hearn’s indictment. The spittle flowed freely during a fifteen-minute tirade as Pirro linked the alleged ripping of the Reflecting Pool’s lining to broader societal “anarchy and chaos;” credited Trump for restoring (exactly) 22 fountains and leading D.C. to “a renaissance like it has never experienced before;” and declared that “I’m not gonna get into the evidence” – before she did exactly that.
Pirro didn’t offer every relevant detail, but she did outline her case against Hearn. Prosecutors claim that he deliberately “ripped a piece of recently-installed sealant on the bottom of the Reflecting Pool at the Lincoln Memorial.” He allegedly damaged two square feet of sealant by “forcefully and violently pulling up and removing the bottom liner with both hands.” (Yes, “violently.”) Pirro also wagged a finger at Hearn for his “belligerent, rude, and disrespectful” conduct towards National Park Service employees. (Bad manners are not, as of this writing, a federal crime.)
Despite Pirro’s bluster, the prosecution’s proof doesn’t appear to be overwhelming – but it also isn’t facially absurd. We know, first, that a D.C. grand jury heard evidence and issued an indictment based on a finding of probable cause that Hearn committed the charged crime, “malicious burning, destruction, or injury of another’s property.” But the grand jury is a one-sided process, and the burden of proof is low. So it tells us something that prosecutors obtained an indictment – especially in D.C., where grand juries have recently rejected cases perceived as politically-driven – but it’s not conclusive.
Pirro specified at her press conference that multiple National Park Service employees witnessed Hearn’s actions. She also pointed to Hearn’s own public statement that he “reached in there, and I was able to grab the end of that flapping piece, the already peeling piece” – not a smoking gun, but collateral support as he admits to intentionally touching the disputed property. It seems clear that Hearn’s actions were not captured on video; if they had been, Pirro certainly would have mentioned that in her remarks.
The case will likely turn, then, on the strength of the eyewitness testimony. NPS employees – typically humble civil servants, not political ideologues – presumably will make credible trial witnesses. Quantity will matter; does Pirro have two NPS witnesses lined up, or seven, or something in between? And quality of testimony will be key. “I was standing right there and saw him clearly as he ripped up a chunk of the sealant” is different from “I was forty feet away and saw him reach towards the water and then he seemed to make some sort of motion with his arms.” At this point, nobody other than prosecutors and the witnesses themselves knows what they’ll say.
To make their felony charge stick, prosecutors also must prove that Hearn caused over $1,000 worth of damage. Pirro said they’ll call an expert to testify to the cost of repair. I have a bit of pool maintenance experience (not to brag) and can confirm that it typically would cost more than a thousand dollars to fix two square feet of damage; that’s too big to patch over and likely would require replacement of the entire panel, whatever size that might be. (Please don’t subpoena me for expert testimony.) On the other hand, Hearn might argue that the liner was already destroyed, and a person can’t cause more damage to something that’s already ruined.
Unsurprisingly, both sides have engaged in overheated rhetoric around Hearn’s indictment. Some Trump detractors note that January 6th rioters did so much worse, and they got pardoned. Of course, Trump’s blanket pardon was a historic disgrace, and Hearn’s charged conduct is laughable by comparison. It’s a persuasive rhetorical argument. But it does not follow, logically or legally, that because of the January 6th pardons, no person should ever again be charged for destroying federal property.
Skeptics also scoff that this is a petty case and federal prosecutors should have better things to do. But every U.S. Attorney’s Office in the country charges large and small cases alike – from murder and racketeering down to low-level property felonies (like this one) and misdemeanors. Putting aside the Trump of it all, would liberals be outraged if a person was charged with damaging – even in a minor way – the World War II Memorial, or the Martin Luther King Jr. Memorial, or the Smithsonian?
But on balance, Trump and his defenders have made even more inflammatory and unjustified political claims. Pirro’s effort to scapegoat Hearn for the entire Reflecting Pool debacle – indeed, for widespread “anarchy” – is preposterous. Even if he ripped up two square feet of lining as charged, that changes nothing about Trump’s responsibility for the whole sloppy green mess.
So what is a trial jury likely to do? It’s tricky to predict any jury verdict, which depends on the personal whims of twelve randomly selected civilians. But the obstacles to conviction are plain.
Prosecutors can lose in either of two ways. First, their evidence simply might be insufficient. They’ll need to prove Hearn’s guilt beyond a reasonable doubt, to the unanimous satisfaction of twelve jurors. If prosecutors have strong testimony from multiple, credible NPS employees, they might well carry their burden. But if that testimony is inconsistent or inconclusive, prosecutors will have a problem, especially given the apparent lack of video evidence.
Second, even if prosecutors do prove their case, there’s the acute risk of jury nullification. Trump is massively unpopular in Washington D.C.; all three times he has run for president, over 90 percent of votes there have been cast against him. Grand juries and trial juries alike have rejected other D.C. cases with political overtones brought by this Justice Department. Last year, a trial jury memorably acquitted the Subway footlong-tosser charged with assaulting a federal agent, even though his sandwich-slam was captured clearly on video. And Pirro’s office has damaged its own institutional credibility. Multiple federal judges in D.C. have called out prosecutors for fudging the truth, overcharging cases, and prioritizing public relations over prosecution.
Even if a jury convicts Hearn, he almost certainly won’t go to prison. Headlines blare ominously that he “could face 10 years in prison.” That’s technically correct – the felony charge against him carries a ten year max – but misleading. In reality, a first-time offender who causes relatively minor property damage is virtually sure to be sentenced to probation and a fine. That’s significant, but nobody is locking up pool vandals here.
The Hearn prosecution has garnered the most attention given to the least serious crime in recent memory. It’s too much to declare conclusively at this point that he has been falsely accused. If the proof is strong enough, especially testimony from NPS employees, then a charge might well prove justified. But the leading indicators suggest the prosecution will ultimately backfire, either on its merits or on the politics that envelop it.
