All right, here we are.

Lawyer Talk, off the record, on the air, getting lots of questions in my personal life, in my professional life, and right here on LawyerTalkPodcast.com.

what is going on with Don Lemon?

What's he charged with?

And how possibly could such an esteemed gentleman be charged with a crime?

He just wanted to do some protesting at a church while it was going on.

Just something light.

Well, he was journalism in his ancient.

Yes, journalism.

Look, whatever.

He was in the protest.

Again, for those who know we don't take political positions in this podcast.

I don't do it.

I know.

Look, I've got my thoughts on it, and I got plenty to say in my private life.

But we're here to talk about the law and what it's all about.

That's the idea, is to sort of break through sort of those.

The talking head barriers when they screw up the law all the time.

So today, that's what we're gonna do.

Don Lemon is charged among the other people with something called the FACE Act.

And this is back in.

I think 95, 96 is us.

Congress decided that they're gonna pass a law called the.

Called the first Freedom of Access to Clinic Entrances.

And guess what that was about?

It was about abortion clinics.

It was about abortion clinics.

And under.

It was codified later under 18.

US Code, Section 248.

For you legal scholars out there with Lexus or Westaller, you want to Google it, check it out.

US Code 18, Section 248.

So here's what it says.

Prohibited activities.

This is subsection A.

So statutes, laws, they always have their.

You know, their flow.

But it says by force or threat of force or by physical obstruction, or it says, whoever, by force or threat of force or by physical obstruction, intentionally injures, intimidates, or interferes with or attempts to injure, intimidate, or interfere with any person because that person is or has been or in order to intimidate such person or any other person or any class of persons from obtaining or.

Or providing reproductive health services.

And you would say, what on earth does that have to do with Don Lemon going into a church?

Yeah, it's a little different because I drive past abortion clinics, and I do see protesting outside.

But you see them now, they're, like, off to the side.

They're quiet.

They got the posters pretty much.

It's very calm.

However, this is a church, not an abortion clinic.

So you might draw some comparison to getting an abortion and going to church.

Most people wouldn't.

Yes, yes.

What is that?

All about.

In fact, you would think they're completely opposite.

And that's why we have section A2, which says by force or threat of force, no person shall intentionally or it's sort of the same thing, let me say whoever, by force or threat of force or by physical obstruction, intentionally injures, intimidates, interferes with or attempts to entertain, blah, blah, blah, blah, blah, any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship or intentionally damage or destroys the property of a facility or attempts to do so because such facility provides either reproductive health services or intentionally destroys or damages property of a place of religious worship.

I paraphrase some of that.

So here's what happens.

Think back in the 90s or 95, 96, I hear, I didn't read the legislative notes.

Now in, in Congress, US Congress, they have.

You can, you can get all this stuff, you can get all the legislative notes.

What people are arguing about the debate on the legislative floor.

You can see how this all came to be.

And you can imagine something as polarizing as abortion might get to a little bit of blowback if Congress wants to pass a law called the freedom of access to clinics.

Yeah.

So those who are against abortion will say, nonsense, we're not going to pass that law.

And the other side says, well, that's what we're doing and like it or not, we're doing it.

And maybe there wasn't enough votes.

Maybe there was, but a compromise is reached.

And those against the protecting only abortion clinics said, fine, we'll vote for that.

If you add the churches and religious freedom into it.

Good old fashioned wheeling and dealing.

This is our government efficiency at work.

Right.

So basically Congress creates two political laws.

I'm going to call them political because they are wrapped into one section.

And I say political because there are probably other things, other crimes, other local crimes that could be prosecuted if somebody is interfering with people or doing things that they shouldn't do to go in and out anyway, it doesn't matter if you, if you're for the FACE act with respect to abortion, that's really the only time we've ever really heard of this.

I know under Biden there's a couple guys prosecuted, see these old men going to prison saying, you know, I did it for God.

I mean, and look, fair enough.

But the Face act has been used, or the one side has used the Face Act, I should say, to prosecute folks on the abortion clinic stuff.

Well, now turnabout is fair play.

Says the department of justice.

We've got Don Lemon and a group of other protesters going into a church, and they go into this church to protest what's going on with ICE in Minnesota or.

I don't know what the heck they're protesting.

Whatever they're.

You know, it's like the old Rebel Without a Cause.

What are you rebelling against?

What do you got?

I don't care.

It doesn't make any difference to me, because what the DOJ is saying.

We're not prosecuting you because you're protesting ice.

We're not prosecuting you because you believe in abortion or don't believe in abortion.

We're not prosecuting you because you hate Donald Trump.

Although we'll get to that.

Yeah.

We are prosecuting you because you, by force or threat of force, intimidated or interfered with folks lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.

Does it fit?

I think it does fit.

The only thing I have is Don Lemons presented this defense.

Kind of.

I wasn't a protester.

I'm a journalist.

Yeah.

Okay, so this is a good defense.

Yeah.

Now, it's.

Now, just to be fair, they.

The doj did not only charge Lemon with violating this act, it was a lot of them they charged.

No, no, no.

I mean, Lemon is charged with conspiracy to violate this act.

So what the heck's a conspiracy?

Everybody's thinking like Al Capone or drug dealers or whatever.

A conspiracy is merely an agreement.

Hey, Troy, why don't we go knock off the bank over here at Broad and High?

Sounds like a great idea.

Sounds like a great idea.

And you have to take a couple overt acts, meaning do something in the course in furtherance of the conspiracy.

Like, tell you what, you go buy the ski masks, I'm going to go procure a getaway car, and I'll meet you right here at 5:11 South High, and we'll be off to the races.

We're going to wear Donald Trump masks and go knock off the bank.

Okay.

That's a conspiracy.

We have an agreement.

Yes.

We've agreed to commit a crime.

Yep.

And we've taken steps.

Once we procure what we're going to procure in furtherance of the conspiracy, that's crime.

Conspiracies in federal court are dangerous, dangerous things, folks.

If you.

I mean, just ask anybody who's been prosecuted with conspiracy counts, it.

It adds a whole new dimension to the power of the Department of Justice.

At any rate, so that's what they've charged Lemon with.

And clearly the government has anticipated Don Lemon saying, well, I'm just accompanying journalists.

I mean, this has happened for years.

Journalists have gone to accompany protesters or whatever, and they're just casual or innocent or observers engaged in protective conduct journalism, First Amendment reporting or whatever you're going to say.

Lemon's going to say then, well, look, you're prosecuting me for this.

It's unconstitutional, because you're punishing my right to report.

This is my freedom of press.

That's what say you to that young, young bad one.

I mean, it sounds like at least I haven't watched it all completely, but it seems like, you know, he's pretty much trying to convince these people and going in with them and, like, going a little bit further than journalism.

That's what I would say.

And that's where this conspiracy, I think, comes in.

Yeah, he's right.

He's riding the crest of.

Of a problem here.

Yeah, my.

My view is he's riding the crest of a problem.

If he stood back, like, towards, like, maybe like the entrance or something, like filmed in.

He was, like, doing selfie side, like taunting around almost.

It didn't.

It didn't feel like journalism.

It felt like he was, like he was part of this.

It's going to depend on a couple.

Like I said, it all depends.

We always want to know more.

I want to know more about how Lemon was involved in the first place.

Yep.

How did he even know that these protesters were exactly the church who organized this?

Because it was clearly organized.

Where did that.

Was there a place they all met in advance?

And was Lemon there?

Was there a discussion about what would happen?

And was Lemon making suggestions about what they were going to do and how they were going to do it?

Was Lemon part of the planning?

Was he part of the conspiracy to do these do this, or the agreement to do this?

And I suppose what overt acts was Lemon part of?

And he didn't necessarily have to be if the other co conspirators were.

But, you know, it's going to come down to what's going on up here with Lemon.

And you're right, I've seen some of the footage, and there's specifically an interview where Don Lemon is trying to interview one of the churchgoers after all this went down.

And the churchgoer is just like, look, I mean, I don't have a place.

I just want to go worship the Lord.

And, you know, I don't know what to say about all this.

And Lemon sort of prods him like, well, don't you think they have a point?

You know, don't you think that they have a good.

And the guy.

We should probably pull up the footage at some point.

And the guy's just like, look, maybe I didn't come here to talk about that.

I want to come here and worship the Lord with my family.

This is family time.

This is Sunday time.

And if you're the DOJ looking at this, or if you're a prosecutor looking at this, you couldn't gift wrap a better witness for somebody whose religious freedom was impeded by this protest.

Yeah.

I mean, he's like, look, all we wanted to do was sit here on Sunday for our hour of time with God, and here you are.

And then, you know, there's all, well, aren't you just a bunch of white dudes?

I mean, it was just.

There was.

There was a lot of stuff that's going to look like Lemon was intentionally trying to cause some havoc by being there and then by interviewing people.

Is that journalism journal journalisming?

We're going to lock that word down.

Going to figure it out.

Is it limiting?

Is it Lemoning, or is it protesting?

And he's riding the crest.

I. I don't profess to know how the case works out, but what I'm telling you is these are some of the facts we know and some of the facts we don't know.

And then we have the law.

And, you know, clearly they're the.

I guess we could look at it this way.

Clearly, the regular protesters seem to be in violation of this law.

No more so than the old man or the old lady outside an abortion clinic trying to prevent people from going to abortion.

Look, you can agree with that law or disagree with the law, but it's written right here.

This is the law, and there's a means to go change it.

You can vote and get Congress and do whatever, but this is the law.

So if you do the same thing, if the same.

I guess here's why I love doing this.

Like, especially when you have these political things.

How would the media.

How would prosecutors.

How would those on the protester side look at this?

If it were reversed and everybody in that church congregation went out to an abortion clinic and walked in and did a bunch of stuff like this.

And there was a.

You know, pick a. I don't even know.

Pick a conservative reporter was with him interviewing people saying, how do you feel about the fact that you're killing your baby?

Yeah.

You know, it's like there would be an out.

There'd be an outright an outcry.

And I'm not saying there should or shouldn't be.

I'm just saying, look, you.

In law, we're trained, like in law school.

Yes.

This is the brainwashing that occurs.

You're brainwashed out of your preconceived notions, or you're supposed to learn how to sort of say, all right, I agree with this physi.

Morally or whatever, but I got to look at it legally.

So here's the law.

Here are the facts.

Does it apply?

Can they prove it?

How do we defend it?

I think Lemon's defense is, I was just there to be a journalist, and I didn't conspire with them, if I had my guess.

You have some trouble with that?

I don't know for sure, but I think he's probably have some trouble with it.

Mostly because when you start turning the screws, when the government starts turning the screws on all these protesters who are now facing, what, up to three, or whatever their punishment is, they're going to say, well, unless you want to tell us about Lemon's role.

Yeah.

Would you tell us what Don Lemon was doing?

Yeah.

Oh, yeah.

Oh, yeah.

Don Lemon, he called me and he said, come on over.

We're going to do this.

You know, I don't know what.

He's the one that created the group chat.

He created the group chat, or he was part of it, or he was in the conspiracy from the beginning.

You're going to get cooperating witnesses.

It always happens.

Doesn't always happen, but it always happens.

So, anyway, it's going to be an interesting case to watch.

And Lemon, of course, is getting on TV and said, I will fight.

I will not stop.

I will never stop.

So he's being a martyr, and.

Fair enough.

Yeah.

You know, he can.

He's being the.

The Thoreau, I guess.

You know, prosecute me if you will, but I'm doing righteous work here.

Yeah.

And I'll never stop fighting.

Now, I said I promised I would talk about the deal or Trump, because you hear this.

It's like they're only prosecuting this because Trump hates Lemon, and this is this and this is that, and Lemon hates Trump.

And look, all that may be true.

That may be true, but it's also reality that last time around, under Biden, people were getting prosecuted for the abortion side of it.

And this time around, under Trump, they're getting prosecuted for the church side of it.

And I'm not saying Biden wouldn't have prosecuted the church side, but it wasn't happening.

Maybe it was.

I don't know.

But you didn't hear about it.

Yeah.

So I don't know if people were actually disrupting church service.

Probably were, I suppose.

So look, you sort of.

You get what you get.

Yeah.

This is my favorite argument in the courtroom and one of my favorite logical fallacies.

I point out.

You can't have it both ways.

You can't have this law, apply it when you like it and then not expect it to be applied when you don't like it.

The way around that is not to write a stupid law like this.

When we made the law stupid or not write the law in the first.

Place, when we made the law, we never intended to be used this way.

Never intended it.

That's probably the bit they'll pull.

Yeah.

They did, though, because.

Or at least half the people that voted did.

Yeah, right.

They wrote that whole other section for a reason.

It was almost like they were thinking, we're going to have like a little.

This is like the arms race.

We're going to have like nuclear protection.

Soviet Union has the nukes.

I'm going back to the 80s, I'm dating myself.

We have the nukes.

And the idea is, if we both have the nukes, we'll never use them because it would ensure mutual destruction.

And I don't know, these laws sometimes ring of politics.

It's going to sound good for our constituents if we say we're going to protect abortion.

It's going to sound good for our constituents if we say we're going to protect the church.

And it does sound good.

But again, sometime, some way, somewhere down the road, maybe he didn't ever intend the law to be used, but now it's being used.

So then you get to this thing.

Well, they're only prosecuting Lemon because he's a reporter.

Well, maybe.

I don't know.

Did he commit the crime?

I don't know.

There are some defenses out there, selective prosecution, which might be one where the prosecuting similar situated people differently.

But I don't think that's going to apply.

It's going to really come down, I think, to whether Don Lemon actually how far he went to help organize and participate in the protest.

And then was his journalism role only a sort of a side benefit?

Because there the journalism is.

Or like, it was the protest.

Right.

He was showcasing it.

Yeah.

You know, I guess in that if I'm the government, I'm going to be arguing, look, it's no different than one of those protesters having a cell phone with him.

Videotape and put it on social media.

Is that a journalist?

Maybe.

Independent journalism is huge right now, maybe not.

Now there is an underlying constitutional argument that these folks could be trying to declare this law unconstitutional because it impeded on the protesters first amendment rights.

I don't think that's going anywhere because you don't have a right to break into a private place to protest.

Yeah.

In other words, if assume this is your garage and you got your buddies over there watching the Ohio State game on forget take the religion out of it for a second, you're watching a high state game on Saturday, got your garage door closed and you got a bunch of anti football people breaking in and saying how dare you watch football.

You'd be like what the f is going on here?

Get out.

Like you don't have a right.

Now you could march on the streets all you want assuming you're not violating time, place and manner restrictions.

But anyway, it's going to be interesting.

I'm looking forward to watching this.

We'll cover it right here on LawyerTalkPodcast.com off the record on the air.