Why Don Lemon’s 3 Legal Maneuvers Are Doomed to Fail

Former CNN host Don Lemon is testing three strategies to escape criminal charges for his role in a January church invasion, and a conservative attorney expects all three of them to fail.

“I find it very hard to believe that this is going to work,” Josh Hammer, senior counsel at the Article III Project, told the Daily Signal in an interview Monday. He called one of Lemon’s defenses “preposterous.”

A federal grand jury indicted Lemon, along with 37 others, for invading a church in St. Paul, Minnesota, on Jan. 18. The agitators, who said they targeted the church because one of its pastors works for Immigration and Customs Enforcement, allegedly stood up in the middle of a service, refused to leave when asked, blocked members of the congregation from getting to their children, and chanted, “Who shut this down? We shut this down!”

They have pleaded not guilty to charges of violating the Freedom of Access to Clinic Entrances Act, a provision of which protects access to churches, and the Ku Klux Klan Act.

Lemon, who recorded the incident, argues that he was acting as a journalist, gathering news at the church. He filed three motions, urging a federal magistrate judge to dismiss the charges against him. In one motion, he asked the judge to rule part of the FACE Act unconstitutional. In another, he claimed the government violated his First Amendment rights. In the third, he claimed the government engaged in “vindictive prosecution.”

Hammer’s Analysis

Hammer rejected the legal theories behind all three motions.

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He said the FACE Act’s protection for houses of worship is “well within the courts’ jurisprudence on the First Amendment.”

While Lemon argues that he was acting as a journalist, Hammer noted that the First Amendment doesn’t give journalists any extra rights, and that Lemon refused to leave the church when the pastor directly asked him to do so.

“Trespass is a tort [legal injury] that goes back to the beginnings of English common law,” which predates the First Amendment, Hammer noted. “That is a preposterous assertion that the First Amendment justifies the right to trespass.”

“If you want to get inside the church to cover [a protest], there’s a very simple thing you can do,” the lawyer said. “You can ask for permission.”

Renee Carlson, general counsel at True North Legal (which represents Cities Church), also slammed the idea that the First Amendment would protect Lemon.

“Don Lemon is wearing the First Amendment as a skin suit to defend his participation in the invasion of a church, which is not protected speech for anyone,” she told the Daily Signal.

Vindictive Prosecution

Lemon’s third motion, the motion to dismiss for vindictive prosecution, would also involve a rather large leap, Hammer said.

A federal judge rejected a similar vindictive-prosecution claim from the Southern Poverty Law Center in an unrelated criminal case—on the very same day Lemon made his motions.

Hammer acknowledged that judges may sometimes issue surprising rulings that don’t align with the best interpretation of the law for political reasons.

“But on the actual merits? No, this is very rare stuff,” he added.

Vindictive prosecution claims rarely succeed because courts require defendants to prove that the actual prosecutors handling the case acted with retaliatory intent, not merely that public officials criticized the defendant. Courts generally presume that prosecutors act in good faith unless defendants present evidence to the contrary.

To secure dismissal for vindictive prosecution, a defendant must prove that the government brought charges against him or her essentially in retaliation for the exercise of a basic right. Lemon has cited numerous quotes from President Donald Trump, then-Attorney General Pam Bondi, and Assistant Attorney General Harmeet Dhillon, which he claims evince animus against him.

When the Southern Poverty Law Center moved to dismiss for vindictive prosecution, it cited statements from Trump, Attorney General Todd Blanche, and FBI Director Kash Patel, but failed to prove a direct connection between disagreement with the SPLC’s statements and the prosecution. The SPLC lacked any evidence demonstrating the key claim—that the government had retaliated against it for its free speech.

Similarly, Lemon would have to prove that prosecutors targeted him for criticizing the administration, not for his own alleged violation of churchgoers’ rights.

The same lawyer, Abbe Lowell, represents Lemon and the SPLC.

Lowell and Associates did not respond to the Daily Signal’s request for comment by publication time.

‘Ludicrous’

Doug Wardlow, director of litigation at True North Legal, agreed with Hammer that the vindictive-prosecution claim will likely fail.

“The argument that Don Lemon has been vindictively singled out by the prosecution is ludicrous,” Wardlow told the Daily Signal. “Lemon is one of dozens of defendants.”

“The real vindictiveness at issue is the storming of a church that terrified families and children in their own sanctuary,” he added.