Conversation
-
Davey Hearn’s Extra Bites at the Apple
source
If I did bonus content at this website like a Substack, this would be the kind of post that would be the bonus: Something so weedy it may get no comments. But since everything is free here, you call can read — or skip — my analysis of the chess game I think is going on in the Davey Hearn indictment.Or, if this stuff floats your boat you can support it here.
I want to revisit the post where I noted that Judge Todd Edelman issued an order — for a reply (which we got yesterday and I addressed here), a sur-reply (due in a week), and a hearing. As I noted that order — somewhat unusually — alerted Hearn’s team they would get another bite at the apple.
And then they took two or three more bites.
Last Thursday, Hearn submitted a filing that, procedurally, served to add something to their initial response to the government’s motion to dismiss; Hearn submitted his response back on August 4. They submitted this supplement, even though they already knew they were going to get a sur-reply. In doing so they submitted it before whatever the government filed Tuesday.
Basically, it said that Donald Trump continues to be a jerk. In addition to all Trump’s (and Doug Burgum’s) attacks on Jeanine Pirro, the supplement also pointed to this post from Trump which, as I noted here, attempted to recuperate a key witness in this case, W-1.
Trump took a passage of Pirro’s motion to dismiss and — unusually for his Truth Social propaganda — attempted to spin a court filing. The President of the United States chose to vouch for W-1, the Park Service employee who is Davey Hearn’s main accuser.
Hearn took the instance of Trump vouching for W-1 to assail her credibility, not only by introducing new evidence, but finding cause to attach a written statement she wrote — “older gentleman pullup up” — as a sealed exhibit which (if Edelman relies on it) we’ll be able to ask for under 1A precedent.
While the President —without evidence—referred to W-I as a “highly credible witness,” the evidence produced in discovery by the government itself tells a different story. For one, W-1’s handwritten statement from the date of Mr. Hearn’s arrest is contradicted by other evidence in the case, W-1’s initial statement asserts in part
Older gentleman pullup up on his bike wearing a bike outfit purple shirt + bike shorts came up to the pool took his phone out and started taking pictures he then kept tugging until the [National] Guard came up to him.14
Yet, publicly available video shows Mr. Hearn standing next to the Reflecting Pool while calmly putting on his bike glove and interacting with W-1, then walking to his bike, picking it up, and beginning to walk away—all before a group of three Guardsmen approached him.’* Accordingly, W-I’s statement that Mr. Hearn “kept tugging until the Guard came up to him” is demonstrably false.
Moreover, the government itself has provided conflicting versions of W-1’s account of her interaction with Mr. Hearn., In W-1’s initial written statement, quoted in part above, she alleged that Mr. Hearn simply “said [she] was awfully sensitive about the pool.” But U.S. Attorney Pirro —despite ethics rules to the contrary—publicly recounted a more dramatic version of events, stating that Mr. “Hearn reacted by shouting at that Park’s employee, saying that she ‘cared too much about the Reflecting Pool,” and ‘why did she even care? since it ‘wasn’t her pool?”16
14 This witness statement is filed contemporaneously under seal as Sealed Exhibit A to this motion.
15 See Emily Miller (@Emilymiller) = X (June 20, 2026), https://x.com/emilymiller/status/2068470763783381356.
16 Press Conference, Jeanine Ferris Pirro, U.S, Att’y for the District of Columbia (July 2, 2026), PBS NewsHour, https:/Avww.youtube.com/watch?v=pEPVRNKq3oM.
It goes on from there, describing how the government repeatedly attested that W-1 took a key video — which showed that damage to the pool was there hours before Hearn arrived — they now attribute to someone else. The filing attributes that claim to two sealed exhibits, previously included on prior filings, but included again here just in case. Again, if Edelman relies on them, we can demand them under 1A precedent.
Hearn expanded those allegations about W-1 in the record before DOJ filed their response. DOJ did not address those allegations and may have, arguably, forfeited responding.
In addition to laying out what a jerk Trump is about this case, Hearn also filed a discovery request to the docket. It argued that Hearn needed a very long very detailed list of discovery because it was relevant to whether the case should be dismissed with or without prejudice.
‘We understand from Mr, Carter’s emails to Mary Dohrmann on August 13 that the Government is taking the position that it will not provide any further discovery in light of the Court’s dismissal of the case. We believe that the missing discovery may bear directly on the Court’s decision whether the dismissal is with or without prejudice. Among other things, the Government’s refusal to provide the discovery raises troubling questions about the reasons the Government moved to dismiss the case when it did, and what actions of the Government would have been revealed if the missing discovery had been supplied in a timely way.
That is, before the government submitted its filing on Tuesday, Hearn’s team said, we think that we need this discovery to determine whether your reasons to dismiss the case are what you say they are.
And so, when DOJ submitted its reply arguing that Judge Edelman should dismiss this case without prejudice, Hearn’s discovery request was already docketed before DOJ said,
The defense repeatedly argues that dismissal with prejudice is warranted because the government sought an indictment in bad faith and in disregard of the available evidence. This is flatly wrong, as discussed below. But it also misconstrues the law. “The salient issue, however, is not whether the decision to maintain the federal prosecution was made in bad faith but rather whether the Government’s later efforts to terminate the prosecution were similarly tainted with impropriety.” Rinaldi v. United States, 434 U.S. 22, 30 (1977).
Before DOJ replied, correctly, that the issue is why they moved to dismiss the case, Hearn asked for discovery (it really is an extensive list and no matter what else happens could serve as a roadmap for FOIA), effectively saying, if you refuse this, you may have dismissed to cover all this up.
And sure enough, in his motion to compel that discovery (which actually was filed hours before the government reply), Hearn effectively says if DOJ refuses to turn over this information, it’ll raise further questions about why they dismissed the case.
2 The government’s refusal to provide this discovery, coupled with the timing of its motion to dismiss, provides further reason to scrutinize the government’s purpose in requesting dismissal, including what actions of the govemment would have been revealed if the government had continued with the case on the Court’s trial schedule.
Then he provides reasons why, he says, he needs all this. Much of it would have been fair game if Hearn were going to trial but as it is serves mostly as a guide for what documents are out there, how many cops were involved in arrests, what the other charged cases relied on. But some of the requests are quite reasonable — most of all the data seized from Hearn’s own phone, the data behind the “before” photo. originally attributed to Hearn’s main accuser (Hearn exposed DOJ’s attempt to refuse this just before DOJ moved to dismiss), and the CCTV footage Interior shared with Jesse Watters but not with Hearn — and as such make this a viable motion.
TI, All data extracted from Mr, Hearn’s cell phone that the Government has not yet destroyed and/or deleted.
11. Production of any and all data extracted from the phone.
12, All forensic extraction reports and logs, with hash values.
13. The Application/Affidavit and Search Warrant for the device.
14. Following production of this data, the Government must destroy all data extracted from the phone, both physical and electronic, from all systems and servers, and provide a written accounting of what has been destroyed or deleted, when, from which systems and servers, and by whom.
[snip]
V. Unredacted copies of discovery related to Mr. Heam, including identifying relevant witnesses and persons with information relevant to Mr. Heam’s defense and ongoing briefing in this matter.
20. The individual who took the “before” photograph metadata from the “before” photograph with EXIF metadata intact, and any communications between [redacted] or other NPS employee and any law enforcement witness, including at Bates Numbers USAO-241 and USAO-242.
[snip]
VII. All CCTV or other surveillance camera footage covering the reflecting pool basin from April 23,2026 through the present
37. All CCTV or other surveillance camera footage covering the Reflecting Pool basin fiom April 2, 2026 through the preset inclting from any NPS, Park Police. or partner agency mobile or fixed platform. To date no CCTV footage has been produced.
38, Without limitation, the CCTV footage that produced the video posted at [NPS URL]
[Trump post URL]
[Jesse Watters show URL]
Not only doesn’t DOJ (whose participants likely face a sea of conflicting motives — keep their job, their bar license, avoid Trump’s wrath — which have little to do with normal considerations) address any of these interventions from Hearn, but they make it worse by relying again on W-1’s testimony and the picture Hearn took on his phone (about which they have lied elsewhere) to dispense with concerns about the original indictment, even after Hearn raised further concerns about the lies about W-1’s testimony.
W-1 stated they observed the defendant using his cellular telephone to take what the NPS employee believed to be video or a photograph(s) of the damage to the reflecting pool. However, the United States Park Police never took possession of the defendants phone to verify if any additional damage was done. The NPS employee, W-1, stated that the defendant then knelt, placed both hands into the reflecting pool—below the surface of the water—and started to “violently” tug at a portion of the blue pool coating, At no time was the defendant seen removing anything from the pool.
Again, this discovery request doesn’t have to work. But by formally asking, it provides basis for argument in next week’s filing, and gives Judge Edelman one more legal issue on which to weigh in, which will probably be followed by a legal fight to achieve the requests pertaining to Hearn’s phone in a subsequent motion.
DOJ wanted all this to go away and this is an attempt to lay legal framework to prevent that from happening.
280814 Discovery: Files a discovery letter sent the same day
260814 Supplement: Points to Trump’s whining and inconsistencies with primary accuser; the filing submits three partially new exhibits
260818 Dismiss Response: The government argues that Hearn is not entitled to dismissal with prejudice
The post Davey Hearn’s Extra Bites at the Apple appeared first on emptywheel.