Investigating the Lincoln Memorial Reflecting Pool dispute

This article originally appeared on PolitiFact.com.

Capping a summerlong effort to blame bad actors for damaging the Reflecting Pool in Washington, D.C., President Donald Trump continued to cite vandalism, even after the Justice Department withdrew charges against people it accused of intentionally marring the landmark.

On July 31, the department filed a 20-page motion in Washington, D.C., Superior Court seeking to dismiss felony charges against David Hearn, an Olympic canoeist, for allegedly defacing the historic pool located between the Lincoln Memorial and the Washington Monument.

In the motion, the Justice Department cited evidence from the Interior Department — information prosecutors said was not initially presented to them — that led them to conclude that faulty repairs, not vandalism, caused peeling on the pool’s liner.

“A recent visual inspection showed damage throughout the Reflecting Pool, even in the middle of the pool, where a vandal would not likely attempt to peel the lining,” the motion said. “Given all of this newly discovered information, it is difficult to attribute the widespread damage to the Reflecting Pool to vandalism, let alone to establish that fact beyond a reasonable doubt.”

Signed by U.S. Attorney Jeanine Pirro and Assistant U.S. Attorney Michael P. Spence, the motion blamed “flawed” work by a contractor who rushed to complete the project prior to the nation’s 250th anniversary celebration July 4.

But Trump criticized the Justice Department for dropping the case against Hearn.

In the Oval Office, Trump told a reporter Aug. 3 that “Jeanine Pirro made a mistake. There was vandalism.” He added that there were people on the side of the pool “cutting it with a box knife,” a claim he had made on several previous occasions. Pirro met with Trump at the White House that day, after he said Pirro had “choked” and “folded like an umbrella” in her handling of the case.

However, Trump’s vandalism claim is undercut by the details included in the Justice Department’s dismissal motion, which Superior Court Judge Todd Edelman is now considering. In separate notices, federal prosecutors dropped misdemeanor charges related to vandalism against three other people. Only Hearn had faced a felony charge.

“This case should have never been allowed to progress to indictment without all the information,” said Glenn Kirschner, a former chief of the homicide section in the U.S. attorney’s office for the District of Columbia, which Pirro now leads.

The White House referred PolitiFact to Trump’s comments and provided no additional information to support his statement. The Interior Department and federal prosecutors did not respond to inquiries for this article.

Doug Burgum, secretary of the Interior Department, which oversees the park service, sided with Trump and against Pirro, saying in an Aug. 1 X post, “The evidence is clear, vandals have repeatedly caused damage to the Reflecting Pool.”

That is not what the evidence reviewed by the Justice Department shows.

What does the evidence show?

Structural issues have afflicted the pool since its creation in the 1920s, but Trump has fixated on its appearance in recent months as he launched a project to paint the bottom “American flag blue” for the 250th anniversary. When the pool lining peeled, he blamed criminals, and on Aug. 1 he posted a video that he said showed vandalism.

But the Justice Department’s motion — which would open federal attorneys to sanctions if they are found to have lied or committed misconduct because it was submitted under oath — said the initial evidence of vandalism, based on “barebones” police reports, was eventually overshadowed by a large amount of evidence pointing to faulty installation.

The motion’s details “suggest that the United States attorney’s office knew it lacked a complete factual record,” said Steven H. Levin, a lawyer at the Steptoe LLP firm representing Hearn. “Yet the United States attorney still sought a felony indictment the very next day.”

Prosecutors said Hearn ripped a piece of the recently installed blue pool sealant in the pool.

But the motion said Hearn had told police that he “didn’t pull any thing off” the pool lining, saying he had reached down into the pool to feel the water temperature and noticed a big piece of “material flapping in the water and began to grab at it.” When advised by a park employee that he could not touch it, he stopped, walked over to his bike and then was detained by the National Guard.

One park employee told investigators that Hearn took a cellphone video or photo of himself, reached into the pool and started to “violently” rip and tug at a large portion of the blue pool coating. When prosecutors met with park employees July 1, the motion said, none said that “the poor condition of the Reflecting Pool was largely the result of failures during the process of installing the liner.”

Prosecutors presented this evidence to a grand jury, which returned an indictment the next day.

About two weeks later, the motion said, prosecutors returned to the pool and noticed extensive damage. Prosecutors then said they received additional documents from the Interior Department — which oversees the pool and related monuments — that “indicated a rushed and flawed installation process, with repeated failures of the lining during the installation process, and extensive peeling of the lining throughout the Reflecting Pool,” according to the motion.

The documents showed that Atlantic Industrial Coatings started the work in May and faced repeated weather delays. The final inspection occurred June 9. Two days later, a park engineer was alerted to the peeling of the pool lining. The engineer emailed park employees, noting peeling in a small area of the pool and saying the contractor attributed it to an “overspray.”

This information existed “eight days before the defendant was arrested,” the motion said, but it was not given to prosecutors until after the indictment.

Prosecutors are required to seek the dismissal of charges when exculpatory evidence surfaces, said Sharon R. Fairley, a former federal prosecutor who now teaches law at the University of Chicago.

“Criminal prosecution is a human endeavor, so mistakes, although usually rare in the federal system, can happen,” she said.

What is unusual in the Hearn motion, Kirschner said, is the Justice Department’s clear blame leveled at the Interior Department for failing to produce extensive evidence.

“What I’ve never seen is the kind of unseemly finger-pointing that went on in this motion,” he said. What the motion does not acknowledge is that prosecutors failed to aggressively seek the evidence they ultimately found before seeking an indictment, Kirschner said: “This is your job: to investigate what the evidence is.”

Where the cases stand now

On July 31, prosecutors filed notices that they were no longer prosecuting three people — Justin Carreno, Sophie Dennison and Cameron Thiers — facing misdemeanor charges in related cases.

The motion to dismiss the charges against Hearn “without prejudice” is pending, and the case could be brought again if new evidence emerges. That is standard for dismissal motions, legal experts said, because prosecutors seeking to dismiss the charges “with prejudice” — which would mean the charges could not be refiled — would be akin to acknowledging bad faith or prosecutorial misconduct.

Edelman could dismiss the charges with prejudice by a Sept. 11 status hearing, though legal experts said he could first ask prosecutors to explain their actions in court.

Another lawyer for Hearn, Michael Bromwich, said the Olympian’s legal team is considering civil lawsuits and requests to investigate the government’s prosecution.

Our ruling

Trump said “there was vandalism” at the Reflecting Pool.

Federal prosecutors debunked that claim in a detailed motion, filed days before Trump’s comment, seeking to dismiss charges against people accused of vandalism. The motion said the damage was the result of a “botched installation” and that it is “difficult to attribute” the damage to vandalism, “let alone to establish that fact beyond a reasonable doubt.”

We rate Trump’s statement as False.

PolitiFact Researcher Caryn Baird contributed to this fact-check.

This article originally appeared on PolitiFact.com.

It is republished here as part of a reporting and fact-checking partnership between PolitiFact and Hearst Television.