Justice Dept. Dismisses Charges Against Veteran Who Burned Flag

The Justice Department has moved to dismiss charges against Jan “Jay” Carey, a veteran who set an American flag on fire near the White House. Carey was arrested in August after burning the flag in Lafayette Square, an act he stated was a protest against an executive order issued by President Donald Trump concerning flag burning.

Mara Verheyden-Hilliard, Carey's lawyer, described the Justice Department's filing as a victory for First Amendment rights.

Charges and Legal Proceedings

Carey faced two misdemeanor charges:

• Igniting a fire in an undesignated area.
• Lighting a fire causing damage to property or park resources.
  He was not charged specifically with flag burning.

The decision to dismiss the case occurred before a Monday deadline for the Justice Department to provide information regarding its internal decision-making process for prosecuting Carey.

Executive Order and Constitutional Precedent

President Trump's executive order on flag burning directs the Attorney General to “vigorously prosecute” individuals who burn the American flag while engaged in other offenses. However, the order itself does not criminalize flag burning. It states that flag burning is “likely to incite imminent lawless action” and suggests pursuing litigation to clarify First Amendment exceptions.

In 1989, the Supreme Court ruled in a 5-4 decision that flag burning is protected under the Constitution as a form of speech.

A federal judge had ruled in January that further inquiry was warranted to determine if Carey's prosecution was influenced by Trump's executive order or was intended to punish his constitutionally protected speech.

Contextual Information

The dismissal marks another instance of challenges faced by U.S. Attorney for the District of Columbia, Jeanine Pirro, during her tenure. Prior instances include:

• A jury acquittal in November for an individual charged with throwing a sandwich at a federal agent, after a grand jury declined to indict on the felony charge sought by Pirro's office.
• A federal grand jury's rejection of an indictment against Democratic lawmakers over a social media video.
• Subpoenas from Pirro’s office targeting Federal Reserve Chair Jerome Powell being blocked by a judge, who stated prosecutors produced “essentially zero evidence” of a crime.