[Full disclosure: I was arrested with both FDL Editor John Chandley and Dan Choi on the first day of the Tar Sands protests at the White House last year, and am also being called as a witness in this case.]
Last August over 1250 people were arrested for protesting in front of the White House over the construction of the Keystone XL Pipeline, but the government only pursued charges against one person: Lt. Dan Choi. This Wednesday at 11am there will be a pre-trial hearing in DC Superior Court to determine whether Choi can offer a defense of selective prosecution by the government, and First Amendment protection for his right of free speech.
Former Obama Press Secretary Robert Gibbs was served with a subpoena to testify at the hearing while on his way to a ball game over the weekend. Last week the Department of Justice accepted service for Valerie Jarrett, Senior Adviser to the President.
The government is also pursuing federal charges against Choi for his arrest in April 2010 protesting Don’t Ask, Don’t Tell in front of the White House. Judge John Facciola made prima facie finding that the government had engaged in not only selective but vindictive prosecution against Choi, but Assistant US Attorney Angela George took the extraordinary measure of filing a petition for writ of mandamus against Facciola to prevent him from allowing Choi to offer this defense. Chief Judge Lamberth set new case law in order to overturn Facciola and prevent Choi from arguing selective or vindictive prosecution.
Magistrate Judge Elizabeth Wingo, an Obama appointee, is presiding over the Tar Sands case. So far she has been extremely deferential to the prosecution, allowing them to “drive the car” in the words of Choi’s defense counsel, former JAG officer Jim Pieterangelo II. None of the Park Police officers who were subpoenaed to appear at Choi’s last pretrial hearing did so, and Judge Wingo indicated that since the hearing had been changed to a status hearing, it was acceptable for the Park Police to defy the subpoenas.
When Pieterangelo noted that there’s nothing in the law that says you have to obey a subpoena unless the defendant is gay and his defense counsel is gay, it drew the Judge’s ire.
Choi is charged with incommoding and failure to obey after the Park Police revoked the permit that had been issued (but never given) to Tar Sands protesters last year. Judge Wingo had previously ordered that the prosecution did not have to turn over a copy of the permit to Choi, and reversed herself after Choi threatened to appeal the decision.
The prosecution has said they do not know why Choi alone out of over 1250 protesters was charged, whereas all other protesters were either released or allowed to post and forfeit. The prosecutor indicated that he believed Choi may have been singled out because he had been arrested 3 times for protesting, but fellow protester David Slessinger had been arrested over 30 times yet was offered post and forfeit.
Gibbs is being called to testify about his presence at Choi’s April 2010 arrest for protesting DADT. Although there were only a few journalists in Lafayette Park at the time, the decision was made by park police to eject them and close the park (see video above, in which journalists call the move “outrageous” and “ridiculous.”). Politico jokingly referred to “the most transparent White House ever.”
Valerie Jarrett is the Senior Adviser in charge of LBGT issues for the White House, and had previously been in hot water for referring to the sexuality of Justin Aaberg, a 14 year-old gay teen who committed suicide in 2010, as a “lifestyle choice.” Choi famously scrapped with Jarrett over DADT when Jarrett insisted that the Department of Justice had no choice but to enforce it, even though they were selectively enforcing other laws.
Protesters usually receive the equivalent of a traffic ticket for demonstrating in front of the White House. Last year it came to light, however, that three days prior to Choi’s April arrest that the White House sent a memo to the Secret Service, who forwarded it to the Park Police, advising them that the protest was imminent – even though it had not been announced publicly. Solicitor Randolph Myers of the Department of Interior then drafted a lengthy memo advising the Park Police on how to bring federal charges against Choi prior to the protest taking place.
If convicted of federal charges, it would prevent Choi from being entitled to the military benefits he would otherwise earn after DADT was suspended.
Judge Facciola made his prima facia finding of vindictive prosecution after it was revealed in court that the White House had tipped off the Secret Service that the protests would be happening and that the government subsequently prepared the memo on pressing federal charges against Choi.
The hearing will begin at 11am in Judge Wingo’s courtroom at the DC Superior Court, 500 Indiana Ave N@, Washington, DC.
UPDDATE: Per Dan Choi, attorney Bob Bauer is representing Jim Messina and Brian Bond, who will also be served today. Choi indicates that his attorney spoke to Bauer’s office, and that Bauer is “handling” Gibbs (though it is unclear whether they are officially representing him).
Note: An earlier draft of this post indicated Bauer is representing Robert Gibbs. Choi has since amended that statement to say “handling.”