A federal appeals court rejected a bid by the Justice Department to force the arrest of former CNN anchor Don Lemon and four others over the weekend after a lower court judge refused to sign off on the warrants to take them into custody.
The three-judge panel, made up of Obama appointee Jane Kelly and Trump appointees Steven Graz and Jonathan Kobes, denied the request by the Trump administration to take Lemon into custody over the Jan. 18 demonstration inside Cities Church in St. Paul, Minn.
In a brief concurring statement, however, Graz said that prosecutors had “clearly establish[ed] probable cause for all five arrest warrants … [but] the government has failed to establish that it has no other adequate means of obtaining the requested relief.”
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The unanimous Friday ruling was unsealed Saturday.
The DOJ had initially sought to charge eight people, including Lemon, in connection with the demonstration, but Magistrate Judge Douglas Micko only signed off on charges against three prospective defendants and directed the feds to seek a grand jury indictment of the remainder.
Instead, prosecutors asked Minnesota Chief US District Judge Patrick Schiltz to review the evidence and order the arrests by 2 p.m. local time Friday.
In a furious letter to Eighth Circuit Chief Judge Steven Colloton, Schiltz described the feds’ demand as “unheard of in our district or, as best I can tell, any other district in the Eighth Circuit. I have surveyed all of our judges — some of whom have been judges in our District for over 40 years — and no one can remember the government asking a district judge to review a magistrate judge’s denial of an arrest warrant.”
“The reason why this never happens,” Schiltz added, “is likely that, if the government does not like the magistrate judge’s decision, it can either improve the affidavit and present it again to the same magistrate judge or it can present its case to a grand jury and seek an indictment.”
Schiltz added that he had planned to discuss the feds’ move with his colleagues this past Friday, but their meeting was postponed to Tuesday due to “security concerns” caused in part by the presence of Vice President JD Vance and Attorney General Pam Bondi in Minneapolis.
“I have informed the US Attorney that I will make a decision about the warrant application immediately after that meeting,” insisted the Minnesota chief judge, a George W. Bush appointee to the federal bench.
In response to the government’s insistence that failure to arrest Lemon and the remaining four demonstrators would cause “copycat” church invasions, Schiltz sarcastically told Colloton: “Apparently, the government believes that the arrests of the leaders of the Cities Church invasion — whose arrests have received widespread international attention — will not deter copycats, but arresting five additional suspects will.”
“The five people whom the government seeks to arrest are accused of entering a church, and the worst behavior alleged about any of them is yelling horrible things at the members of the church. None committed any acts of violence. The leaders of the group have been arrested and their arrests have received widespread publicity. There is absolutely no emergency … The government can still take its case to a grand jury anytime it wishes.”
In a separate message to Eight Circuit Court Clerk Susan Bindler, Schiltz noted: “The government’s arguments about the urgency of its request makes [sic] no sense … The government says that there are plans to disrupt Cities Church again on Sunday [Jan. 25]. Of course, the best way to protect Cities Church is to protect Cities Church; we have thousands of law-enforcement officers in town, and presumably a few of them could be stationed outside of Cities Church on Sunday.
“The government does not explain why the arrests of five more people — one of whom is a journalist and the other his producer — would make Cities Church any safer, especially because that would still leave ‘dozens’ of those who invaded the church on Sunday free to do it again.”
The three suspects arrested in the Cities Church service disruption — Nekima Levy Armstrong, Chauntyll Louisa Allen and William Kelly — are charged with conspiracy against rights by interfering with others’ freedom to worship.
Harmeet Dhillon, assistant attorney general for civil rights, told “The Megyn Kelly Show” Friday that the DOJ is weighing the use of the Freedom of Access to Clinic Entrances (FACE) Act, a 1994 federal law that also covers interference with religious worship, to bring charges against Lemon and the other potential defendants.
