FACE’ing Down a Bogus Prosecution

The fundamental flaw with the Lemon Indictment.

Editor’s Note: This is the second of a two-part essay about the indictment of Don Lemon. Part One focused on the process and motives behind the prosecution. This part addresses why the charges fail on their own terms and what the case signals for press freedom and the Department of Justice.

Image credit: MS Now

Part One of this Substack argued that the Lemon indictment was never a conventional exercise in law enforcement, but a performance prosecution—conceived, announced, and executed to signal loyalty rather than to survive judicial scrutiny. This second part turns to the law itself. When the statutes invoked here are taken seriously—particularly the Freedom of Access to Clinic Entrances Act (FACE) Act and the conspiracy statute, 18 U.S.C. § 241—the indictment’s defects become unavoidable. What emerges is not an aggressive but lawful application of criminal statutes, but an effort to transform protest and newsgathering into “force” and “intimidation” by assertion.

A careful reading of the indictment shows just how far the prosecution departs from the conduct Congress sought to criminalize.

The document’s basic move is to try to recharacterize the demonstration as a “coordinated” and “takeover-style attack” on religious worship, repeatedly labeling participants as “agitators” and framing opposition to immigration enforcement as hostility toward religion itself. There is repeated emphasis on the reaction of congregants—fear, distress, and discomfort—and on assertions that the experience was “traumatic.”

But FACE does not criminalize disruption or emotional impact. It requires force, threats of force, or physical obstruction, terms that courts have construed narrowly precisely to avoid sweeping protected protest activity into criminal liability.

What the government does instead is proffer a series of highly loaded descriptions to try to cram the protest into the sort of blockading, threatening conduct that FACE criminalizes in the example of reproductive clinics. It all depends on deeply distorted accounts.

Read carefully, the core assertions really come down to the government’s tendentious allegations as opposed to concrete facts. So the indictment asserts that Lemon “stood with other agitators” in order to “intimidate” congregants, “positioned himself close to the pastor” while questioning him “in an attempt to oppress and intimidate,” and “physically occupied” portions of the sanctuary so as to “obstruct” freedom of movement.

Those are characterizations, not evidence. Even crediting the government’s account at face value, the conduct alleged does not begin to resemble the paradigm FACE cases involving barred entrances, locked arms, or bodies used as physical barriers.

It’s actually a sort of two-step: 1) massage every aggressive moment in the demonstration to try to portray it as “force and intimidation,” and then 2) distort the planning process to make it seem as if that, not the protest, was the conspiratorial aim of the event (and of course Lemon was in on it).

More generally, Bondi’s (who in a flagrant departure from established norms put her name atop the federal indictment) dogged inclusion of the word “coordinated” suggests that all of this physical force was a part of the “conspiracy” from the start. In this way, the indictment takes routine journalistic practice and tries to re-jigger as a planned attack and shutdown in order to prevent religious practice.

What the indictment offers instead is crass political overreach. It just repeated assertions of intimidation and obstruction untethered from factual allegations that would plausibly establish those elements, let alone do so beyond a reasonable doubt.

It may well be that some congregants’ religious observance was disrupted. Protests often are, by design, disruptive. Lemon himself said that the demonstration was “traumatic and uncomfortable” for some churchgoers. That might make it impolite or gauche; it does not make it criminal. Again, the statute requires force, threats, and physical obstruction, as those terms have always been understood.

As applied to Lemon, the indictment’s allegation strain to the breaking point and beyond. The government repeatedly changes the character of what actually occurred. It treats speech as intimidation, proximity as obstruction, and knowledge as agreement. Chanting becomes menace. Presence becomes coercion. Reporting becomes participation. And any fleeting or incidental contact in a crowded, fast-moving demonstration is folded into the conspiracy itself.

That is not how FACE cases are built. In cases that sustain convictions, the physical interference is direct, not inferred. Barred doors; blocked patients; physical restraint of movement.

Here, by contrast, the government is forced to aggregate expressive conduct and contextual discomfort in order to approximate the statute’s requirements. That move is revealing. It reflects not the strength of the evidence, but the weakness of the fit.

It is also hard to miss the symbolic payoff. FACE was enacted at the urging of pro-choice advocates to stop physical blockades of clinics. Here, that same statute is redeployed against churchgoers, with protest speech and presence reframed as “intimidation.” For an Attorney General attuned to political signaling, there must be a strong sense of satisfaction in turning a civil-rights weapon forged by abortion-rights advocates and wielding it on behalf of a very different constituency.

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The indictment attempts to shore up these defects by adding a conspiracy charge under 18 U.S.C. § 241, but that move does not rescue the prosecution. Section 241 requires agreement and intent to interfere with a federal right through injury, oppression, threat, or intimidation. It does not dispense with those requirements; it incorporates them.

Here, too, the government relies on recharacterization rather than proof. They simply repackage the conduct that fails to satisfy FACE’s force-and-obstruction requirements as conspiratorial intimidation. Without a limiting principle grounded in actual coercive conduct, § 241 would threaten protected expression as well.

The government will likely counter that journalists enjoy no special exemption from generally applicable laws—a proposition the Supreme Court has often affirmed. But those cases arise in a different posture, when journalists seek privileges unavailable to private citizens. Running alongside them is another, equally settled line of jurisprudence recognizing the press as a structural safeguard of democracy, separately protected in the constitutional text itself. That principle does not confer immunity, but it does require courts to scrutinize attempts to transform newsgathering and protest coverage into criminal conduct by redefining statutory elements. That is precisely what is happening here.

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Pam Bondi did not inherit this case; she claimed it. She overrode career prosecutors, put her own name on an indictment no prior Justice Department would have brought, and treated the prosecution itself as a form of communication. The point was never primarily to win in court. It was to be seen—to arrest first, announce loudly, and force a public reckoning before any judge weighed the evidence.

The Lemon indictment is not a good-faith attempt to enforce federal law. It is a performance prosecution—designed to signal loyalty and resolve rather than to vindicate criminal law or survive judicial scrutiny. To Bondi, the Department of Justice appears to be a stage, and the career prosecutors who once gave it ballast little more than incidental players.

As with the boss she so slavishly aims to please, Bondi keeps pushing the envelope. The Lemon prosecution is plainly retaliatory, but it adds an unprecedented twist: the criminal targeting of a journalist for routine news-gathering activity. Bondi began with Comey and James—pure enemies cases. She then moved to Powell, Walz, and Frey, stretching the law to gain leverage in policy and political disputes. Now she has escalated again, firing a broadside at the press itself. The result is not just retaliation against particular critics, but a warning shot across the bow of the press as an institution.

Much political theater is harmless. This is not. Here, Bondi treats the machinery of federal prosecution as a stage and uses it accordingly. She overrides career prosecutors, repurposes civil-rights statutes as props, and converts charging decisions into talking points designed to serve an endlessly vindictive President. It all reflects Bondi’s indifference to the actual work of the Department of Justice and her embrace of the political imperatives that have inverted its priorities—cementing her legacy as a willing architect of its politicization.

Talk to you later.