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We recently discussed the Inspector General report on the Lafayette Park protests and the debunking of claims that the federal government and specifically Attorney General Bill Barr cleared the area for the controversial photo op of President Donald Trump in front of St. John’s Church. For a year, legal and media experts have stated as fact that area was cleared for that purpose and that Barr was lying about the federal agencies using tear gas as opposed to pepper balls (even though the legal and practical difference is largely immaterial). Some tried to keep the myth alive by criticism the IG report and its scope. Now, federal judge Dabney L. Friedrich has dismissed the lawsuit by the ACLU and Black Lives Matter as based on unsupported and unsubstantiated claims against the federal agencies. Ironically, the court allowed the lawsuit against the MPD under Mayor Muriel Bowser to continue. The Bowser Administration admitted recently that it used tear gas near the park on that night and that such use was perfectly reasonable. Both the Bowser and Biden Administrations sought to dismiss the BLM lawsuit as unfounded and unsupportable — a striking departure from what Bowser has stated publicly.

I testified in Congress not long after the clearing of the area and stated that the conspiracy theory was already contradicted by the available evidence. I encouraged Congress to investigate the question and establish the truth of the matter.

As previously discussed, there was ample evidence in the days after the protests to reinforce the account of Barr and others that the plan to clear the park area was proposed days before any plan for a photo op. There was never any evidence that Barr knew of the photo op plan before approving the operation.  Nevertheless, media and legal experts continued to claim as a fact that this was all done for the photo op.  University of Texas professor and CNN contributor Steve Vladeck continued to claim that Barr ordered federal officers “to forcibly clear protestors in Lafayette Park to achieve a photo op for Trump.”

Democratic leaders like Speaker Nancy Pelosi repeated the conspiracy theory about the photo op and the Washington Post ran an article by Philip Bump titled “Attorney General Bill Barr’s Dishonest Defense of Clearing of Lafayette Square.” Not only did the Post refer to the “debunked claim” that no tear gas was used by the federal government, but goes on to state incredibly:

“It is the job of the media to tell the truth. The truth is that Barr’s arguments about the events of last Monday collapse under scrutiny and that his flat assertion that there was no link between clearing the square and Trump’s photo op should be treated with the same skepticism that his claims about the use of tear gas earns.”

It turns out that both assertions were true.

The Inspector General of the Department of Interior has conducted an investigation over the last year and found that the clearing was not done “to allow the President to survey the damage and walk to St. John’s Church.”

That is not the only contraction of the almost universal media accounts. The federal government has long denied using “tear gas” in its operation as opposed to pepper balls in the clearing operation on June 6th. The difference has little real significance either legally or practically. However, critics latched on the denial to show that Barr and others were lying. The IG found that “the USPP incident commander did not authorize CS gas for this operation. Expecting that CS gas would not be used, most USPP officers did not wear gas masks.”

The IG found no evidence of approval or use of tear gas by the federal operation. However, it confirmed “and the MPD confirmed, that the MPD used CS gas on 17th Street on June 1. As discussed above, the MPD was not a part of nor under the control or direction of the USPP’s and the Secret Service’s unified command structure.”

Now the federal court has completed its review of the evidence put together by the ACLU and found no credible basis for the conspiracy theory put forward by Vladeck and others. Judge Friedrich noted that “merely alleging that the defendant officials communicated, without alleging any details of those communications that suggest an unlawful agreement” is not enough. It was however enough for legal and media figures to repeat this conspiracy theory as fact for over a year.

What is most striking in the opinion is the utter lack of evidence presented by ACLU, which encouraged the Court to assume a conspiracy to clear the park for the photo op and to deny the right to protest.  There was nothing but pure conjecture, as the Court noted:

These allegations, taken as true, do not show sufficient “events, conversations, or documents indicating an agreement or meeting of the minds’ amongst the defendants to violate [plaintiffs’] rights based on [their] membership in a protected class.” Barber v. D.C. Gov’t, 394 F. Supp. 3d 49, 66 (D.D.C. 2019) (alteration and internal quotation marks omitted). Rather, they demonstrate only that these officials were communicating with each other on June 1, prior to and after the clearing of Lafayette Square. Merely alleging that the defendant officials communicated, without alleging any details of those communications that suggest an unlawful agreement, cannot justify inferring the requisite agreement for a § 1985(3) conspiracy.

As we discussed with Bump’s coverage of the IG investigation, there is little acknowledgment of the false conspiracy claims made by the media or legal experts like Vladeck. Just as there was little interest in confirming key facts when the protests occurred, there is even less interest in admitting that these figures at the Washington Post, CNN, and other outlets maintained a false and unsupported factual claims.

There is also little recognition of the striking disconnect between what Bowser has claimed publicly and what her Administration has argued in court. Bowser continued to slam the federal government for the use of tear gas, for example, and never admitted that it was the MPD that used the tear gas.  Ironically, it is the District’s MPD that will be continuing as a litigant, not Barr or the federal agencies.

Here is the opinion: Lafayette Park decision

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