At the beginning of Day 3 of the government’s case against Dan Choi, the defense filed a motion to compel production of certain documents. Among them was a Secret Service email sent the day before Choi’s arrest on November 15, 2010 for chaining himself to the fence of the White House with 12 others in order to protest Don’t Ask, Don’t Tell. Defense attorneys Robert Feldman and Norman Kent asserted that there was a coordinated effort among federal agencies to use the power of the government to single out Choi and persecute him in order to silence him. Judge John Facciola decided in favor of the defense, saying that he believed a prima facie case had been made that the government was engaging in “vindictive prosecution” of Choi.
Assistant US Attorney Angela George asked for a recess while she conferred with her supervisors at the Department of Justice. Following a 2 hour break, the trial resumed. There were four Supervising US Attorneys present as George informed the Judge that she was filing a writ of mandamus to prevent him from allowing Choi’s attorneys to present a defense of “defensive prosecution” or “vindictive prosecution.”