Prosecutors now admit they have no case against the 67-year-old three-time Olympic canoeist, but they still want the option to come back and charge him again, and the judge wants to know why.
David Hearn walked into the Moultrie Courthouse in Washington on Friday for a hearing that should not have been necessary. The former U.S. Olympic canoe racer, now 67, stood accused of destroying a two-square-foot piece of liner at the Lincoln Memorial Reflecting Pool, a charge that carried up to ten years in prison. Prosecutors themselves moved to drop it weeks ago. The only question left is whether the government gets to hold the threat of reindictment over Hearn's head for years to come.
Judge Todd Edelman heard nearly an hour of argument in D.C. Superior Court on whether to dismiss the indictment with prejudice, permanently barring prosecutors from refiling, or without prejudice, which would leave the door open to a future grand jury. He took the matter under advisement and told both sides he would rule quickly.
Assistant U.S. Attorney Michael Spence conceded in court that whatever Hearn did at the Reflecting Pool had no economic impact on the liner and did not amount to destruction of property. That concession alone guts the felony charge. Yet Spence argued for dismissal without prejudice, telling the judge there remained "a public interest in allowing a grand jury at a future date" to issue an indictment if new information surfaces.
When pressed, Spence offered little to explain what that new information might look like. CNBC reported that the prosecutor told the court, "I don't know what the future will bring. None of us do."
Defense attorney Steve Levin was not impressed. He accused U.S. Attorney Jeanine Pirro's office of acting in bad faith and told the judge the case was beyond rescue:
"There is nothing that can save the case that was dismissed. There is no valid reason to keep it alive, to hold it over Mr. Hearn's head for the next five years."
Levin pressed further, framing the government's position as an abuse of prosecutorial discretion. "The question is: why are they reserving the right to reindict a case they acknowledge should have never been indicted?" he asked.
The timeline tells the story of a prosecution that moved faster than its own facts. On June 19, Hearn, by his own account, stopped at the Reflecting Pool after a long bicycle ride, reached into the water, and touched a partially detached piece of blue liner. He was arrested on a misdemeanor charge. He told The Washington Post at the time: "I didn't vandalize anything. I didn't destroy or break or peel anything. By the time I realized what was going on, I was being put in handcuffs."
Within weeks, a grand jury indicted him on a felony destruction of property charge. Pirro's office described the act as intentional and "violent." The Washington Examiner reported that Pirro held a press conference to announce the indictment, declaring, "The evidence shows we will prove beyond a reasonable doubt that Hearn willfully destroyed property at the Lincoln Memorial Reflecting Pool."
That confidence evaporated. By late July, Pirro's office asked Judge Edelman to dismiss the indictment. The reason: the Department of the Interior had informed prosecutors that the damage to the pool's sealant resulted from a "flawed installation," not from Hearn pulling anything up.
Edelman zeroed in on that gap during Friday's hearing. He questioned the speed with which prosecutors obtained the indictment while knowing they had not yet received all the information from the Department of the Interior about the new pool liner installation. In other words, the government charged a 67-year-old man with a felony before it had bothered to confirm whether a crime had actually occurred.
Pirro's tenure as D.C.'s top federal prosecutor has drawn scrutiny on multiple fronts. A left-wing legal group filed a bar complaint against her earlier this year, and the Reflecting Pool case has only added fuel.
The Reflecting Pool renovation was a signature project of Trump's second term. Fox News reported the pool underwent a $14 million overhaul featuring a blue coating Trump called "American flag blue." But the project was plagued with problems. The AP reported that the renovation suffered algae blooms and coating failures ahead of the nation's 250th anniversary celebrations.
When the liner began peeling, the administration's instinct was to blame vandals. Pirro announced roughly six misdemeanor arrests in addition to Hearn's felony indictment. But the Department of Justice's own filing later acknowledged the real cause. Breitbart reported that the DOJ determined the damage came from contractor "overspray" and delamination errors, with damage found even in the middle of the pool, where no vandal could have reached. The contractor had rushed to finish before the America 250 Independence Day celebrations.
So the government spent weeks publicly accusing Hearn of a violent felony, held a press conference, obtained a grand jury indictment, and exposed a senior citizen to the possibility of a decade in prison, all for damage caused by a sloppy contractor on a deadline.
The hearing took a pointed turn when Judge Edelman raised President Trump's public reaction to Pirro's dismissal motion. In late July, Trump posted on Truth Social: "I disagree 100% with Jeanine Pirro, the U.S. Attorney for the District of Columbia, on the Reflecting Pool." He added: "I don't know what she was thinking? To me, it was a pure case of VANDALISM."
Edelman asked Spence directly how the judge could view those statements as anything other than the president telling prosecutors to pursue a prosecution that Spence himself had just told the court was meritless. Spence's answer was careful but revealing: "I think the president's statements speak for themselves. At the end of the day, the president can remove the U.S. Attorney... he can remove me if he so chooses."
That response did not exactly dispel the concern. A prosecutor standing in court, acknowledging his boss can be fired by the president, while the president publicly demands a prosecution that the prosecutor's own office admits has no basis, the dynamic speaks for itself. Reports have surfaced that Trump weighed firing Pirro after the case collapsed.
Pirro herself has faced threats over her handling of politically charged cases. A Long Island man was arrested earlier for allegedly threatening to kill her, a reminder that public officials on every side of these disputes face real danger.
After the hearing, Hearn addressed reporters on the courthouse steps. He kept it short:
"I just want to thank everyone who's out here supporting me and everyone across the country. I want to thank my lawyers for making sure that this case is represented well, and I just want to say it's not about me. This is about defending democracy."
Fox News reported that Hearn had donated to the Democratic fundraising platform ActBlue ten times and contributed to Barack Obama's presidential campaigns five times, a detail that may explain why his case attracted the level of prosecutorial attention it did, or may not. What is clear is that the evidence did not support the charge.
Hearn's attorney summed up the defense position bluntly: "I think it's clear why they moved to dismiss the case, because they had no case. The court has the obligation to ensure that the government doesn't abuse its prosecutorial discretion."
Pirro's office has been active on other fronts during her tenure, including opening a rare special grand jury probe into D.C. public schools and seizing cryptocurrency bound for Hamas. Those cases involve real harm and real evidence. The Hearn prosecution involved neither.
The legal distinction at stake is straightforward. Dismissal without prejudice means the government could bring new charges against Hearn at any point within the statute of limitations, potentially hanging a felony threat over a 67-year-old man for years. Dismissal with prejudice ends it permanently. No do-overs.
Spence argued the court should not "tie the hands of a future grand jury." Levin countered that the government had already acknowledged the case should never have been brought. Edelman gave no indication which way he was leaning, saying only: "I'm going to take this under advisement. Won't take long to issue a ruling."
When the government charges a man with a felony, holds a press conference to announce it, then admits the damage was caused by a contractor's mistake and that the defendant's actions had zero economic impact, the case for keeping that sword dangling is thin. If prosecutors want the public to trust their discretion, they might start by admitting when they got it wrong and closing the book.
