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What Did Jeanine Pirro Know and When Did She Know It?
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Davey Hearn has responded to Jeanine Pirro’s motion to dismiss his indictment with a two part ask:- Predictably, to dismiss the indictment with prejudice, so Trump can’t fire Pirro and install someone else who’ll recharge Hearn
- In conjunction with that, if Judge Todd Edelman feels like he needs more information before deciding whether to dismiss without (as Pirro requested) or with (as Hearn countered) prejudice, he should consult grand jury transcripts or simply turn them over to Hearn
Normally, the motion to dismiss would moot the grand jury transcript request, but this is similar in posture to what happened with the Broadview 6. And besides, Pirro left herself open for that request by moving to dismiss without prejudice, and Hearn explains more about the abuse of the grand jury in his response.
In it, Hearn described two previously unidentified pieces of evidence that seem to prove that Pirro came to understand that Hearn’s prosecution was shit — and came to learn that via different means — than her claimed excuse, that Interior stalled on turning over relevant information. And he described two problems with discovery which might explain the real reason why Pirro wants out of this case now.
Before I get there though, Hearn makes an argument that could be important going forward (especially given the way Doug Burgum has blabbed his mouth). He argues that Interior is not just the victim agency — the Park Service whose reflecting pool was allegedly damaged. But because Hearn was arrested by the Park Police, which is part of Interior (and reports to Burgum), Interior is part of the investigative team, as well. If Judge Todd Edelman agreed, that would make the evidentiary problems described below more problematic. To be sure, DOJ consistently succeeds in arguing against such claims, but given the suspect testimony from Park Police, might not be able to do so here. That is, this is an assertion we may see again.
As a reminder, DOJ’s Motion to Dismiss lays out the following timeline to explain Pirro’s purportedly belated discovery her case was shit:
- June 19: Hearn arrested
- Unspecified date: DOJ [makes] dozens and dozens of requests for information [are made]
- July 2: Grand jury indicts and Pirro makes unhinged comments at a press conference just in time for July 4
- July 10: The pool is drained
- July 17 (or maybe July 16, though Hearn does not correct this date): Prosecutors accompany Hearn’s expert and realize, as if for the first time, that the pool is riddled with damage
- After July 17: Interior provides DOJ with the materials they did not produce beforehand which takes days to read
- July 31: Almost two weeks later, prosecutors decide they have to dismiss the case
Hearn adds at least three new details to that timeline (in bold):
- June 19: Hearn arrested
- Unspecified date: DOJ [makes] dozens and dozens of requests for information [are made]
- June 30: Interior completes a report, “Lincoln Memorial Reflecting Pool Damage Assessment” that describes peeling for which Hearn accused as possible vandalism “after initial peeling”
- July 2: Grand jury indicts and Pirro makes unhinged comments at a press conference just in time for July 4
- July 10: The pool is drained
- July 10: DOJ provides the Damage Assessment to Hearn
- July 13: DC Special Agents photographed damage throughout the pool
- July 17 (or maybe July 16, though Hearn does not correct this date): Prosecutors accompany Hearn’s expert and realize, as if for the first time, that the pool is riddled with damage
- After July 17: Interior provides DOJ with the materials they did not produce beforehand which takes days to read
- July 31: Almost two weeks later, prosecutors decide they have to dismiss the case
That is, Pirro (or at least her prosecutors) had to have known both that Interior knew there had been prior damage (which is precisely how their equivocating witness had originally testified before he was sent back to the grand jury to testify that Hearn had done $1,000 of damage) before July 10 and had to have known what it looked like by July 13, four days earlier than DOJ claims.
The MTD is thoroughly dishonest about the timeline, claiming they didn’t learn things until around July 19 that they had notice of no later than July 10. So why attempt to claim they couldn’t have known until at least nine days later than they did?
Before I speculate about that, let me first describe the two big discovery problems Hearn described.
In this post I noted (based on WaPo’s reporting; note my screen cap below reflects my time zone and so a June 25 date) that the Park Police had released that video that Trump keeps posting on June 24, purporting to be looking for leads for an incident that happened at a different part of the pool an hour before Davey Hearn showed up.
Hearn’s filing notes that it was actually shared earlier: First with Jesse Watters, for an “exclusive” piece that aired on June 23. Then in a Department of Interior post from the same day pointing to the Watters piece. Then the Park Police BOLO above, on June 24. And then, over and over, especially on August 1 in response to the MTD, by the President. Everyone got that video, starting with Fox News!
Except Hearn.
As Hearn notes, “To this day, Mr. Hearn never received this CCTV footage from the government.”
Whether or not Interior was really withholding materials from DOJ, it was giving relevant information to Pirro’s former colleague at Fox News that it did not provide to Hearn.
I can see why having to explain why Fox was getting stuff that Hearn was not might have been persuasive to Pirro.
But the other discovery problem is potentially far more damaging. I keep posting this image, which DOJ explained confidently in its MTD was taken by a Parks Service employee who was not involved in the conflict with Hearn at 2:55PM, over an hour before Hearn showed up. It shows the flap of liner Hearn was accused of causing, already loose before he showed up.
In this post, I speculated that this photo may be one of the ones Hearn wanted more detail about in a discovery request submitted on July 27.
I was right.
A footnote explains that, in addition to the filing I referenced, there were two other requests pertaining to this photo.
14 The government had previously represented, including in sworn testimony presented to the grand jury that indicted Mr. Hearn, that the photograph was taken by a different NPS employee, but has apparently altered this incorrect factual assertion following requests for information about the photographs, including metadata, made by the defense. See Def.’s Mot. Rule 41(g) and Mot. Compel and accompanying Sealed Exhibit C; Def.’s Mot. for Disclosure and accompanying Sealed Exhibit 2. The government never provided the defense with complete metadata for its alleged “before” and “after” photos before moving to dismiss this case. [links added]
Not only didn’t DOJ ever give the metadata to Hearn (possibly hiding their knowledge that the flap was there before Hearn showed up), but they made an affirmative, sworn misrepresentation about who took the photo, seemingly in both the affidavit to seize Hearn’s phone (Exhibit C above) and the investigative witness in the grand jury (Sealed Exhibit 2 above).
Note there are two witnesses whose testimony Hearn has shown need for, MR, the witness describing the harm Hearn purportedly did, and MF, the investigative witness who summarized the unsworn testimony of the Parks Service employee who accused Hearn. The MF transcript mentions the photo.
DOJ seems to have claimed, in both the grand jury testimony and the affidavit, that the primary witness against Hearn (described as W-1 in the MTD) took both the before and the after photos. But in the MTD, they say a third Parks Service employee, identified as W-3, took the photo — again, more than an hour before Hearn showed up. (And I wonder whether W-3 is MR, the guy who testified about harm.)
But that would mean W-3 knew the damage was there a full hour before Hearn arrived.
I can see why Hearn invited Edelman to review the grand jury transcripts, even though they would otherwise be mooted. Because DOJ went to great lengths to blame this on Hearn, both by keeping Hearn’s accuser out of the grand jury and (apparently) by claiming she took a photo that someone else took an hour earlier.
From the start, Norm Eisen has been arguing that DOJ dropped the case because of the court filings they had filed, not any new information. And certainly, the June 30 report and the July 13 pool visit show that DOJ already had the information that the MTD claims they only got after July 17.
But now look at the timeline with Hearn’s filings:
- June 19: Hearn arrested
- Unspecified date: DOJ [makes] dozens and dozens of requests for information [are made]
- June 30: Interior completes a report, “Lincoln Memorial Reflecting Pool Damage Assessment” that describes peeling for which Hearn accused as possible vandalism “after initial peeling”
- July 2: Grand jury indicts and Pirro makes unhinged comments at a press conference just in time for July 4
- July 9: DOJ seizes Hearn’s phone
- July 10: Hearn requests his phone back, pointing to non-disclosure of his own photo and the games played with the before and after ones
- July 10: The pool is drained
- July 10: DOJ provides the Damage Assessment to Hearn
- July 13: DC Special Agents photographed damage throughout the pool
- July 16: Hearn moves to dismiss the indictment because Interior drained the pool
- July 17 (or maybe July 16, though Hearn does not correct this date): Prosecutors accompany Hearn’s expert and realize, as if for the first time, that the pool is riddled with damage
- After July 17: Interior provides DOJ with the materials they did not produce beforehand which takes days to read
- July 27: Hearn requests grand jury transcripts which show DOJ’s harm witness could not attribute damage to Hearn
- July 28: Hearn clarifies that DOJ has still not provided key metadata for the before and after photos (as well as one sent by a third party)
- July 28: Hearn reveals he has just gotten a second transcript for the harm witness, showing he was brought back into the grand jury to claim Hearn did $1,000 of damage
- July 31: Prosecutors move to dismiss the case
In WSJ’s story on the drama involving Pirro, it reveals that prosecutors had warned her not to charge a felony against Hearn.
Belying her public confidence were questions career prosecutors had privately raised about the wisdom of bringing a felony case, according to people familiar with the internal discussions.
Even in spite of that warning, prosecutors played games when pursuing that felony, hiding problems with both their primary witnesses.
WSJ also reveals that Pirro is paying career prosecutors $25,000 to stick around — the kind of financial incentive that might lead a prosecutor to fiddle with the grand jury to do what she demanded.
Last month, Pirro offered prosecutors in her office a $25,000 retention bonus to stay for the next two years, according to people familiar with the matter.
In her post-indictment press conference on July 2, Pirro insisted that an assessment of the evidence led to the felony charge, as opposed to the misdemeanor for which Hearn was originally charged.
What did Jeanine Pirro know when she falsely claimed the evidence directed her choice to get a felony indictment and falsely claimed she had a witness who would prove Hearn did $1,000 of damage?
What did Jeanine Pirro know and when did she know it.
Betcha $25,000 we might yet find out!
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