There is little question that Jan Carey broke the law by starting a fire in Lafayette Park, even if he did so in protest of Trump’s Executive Order “criminalizing” the burning of the American flag. But he didn’t just start a fire. He then burned the Stars and Stripes the same day that Trump signed his EO. So was he being prosecuted for starting a fire, or targeted for burning the flag? That’s what D.C. Chief Judge James Boasberg decided he was entitled to find out.

You cannot falsely shout fire in a crowded theater.  What about lighting a fire in a crowded park? After President Donald Trump issued an executive order directing the Department of Justice to prosecute anyone who engages in the protected speech of burning the American flag, Defendant Jan Carey marched to Lafayette Park and burned a flag in protest. He stands charged with violating park regulations that prohibit setting a fire outside a designated area or receptacle and lighting a fire that damages property or threatens public safety.

He now moves to dismiss these misdemeanors, arguing that the regulations do not apply to his conduct and that the Government is vindictively prosecuting him. The Court holds that the regulations do indeed apply to Carey’s flag burning, but it finds that he is entitled to proceed with a further inquiry into whether he is being prosecuted to punish him for his allegedly illegal actions or for his constitutionally protected speech.

Ignoring the first sentence as a rhetorical gimmick, the point of Judge Boasberg’s decision is that while Carey could certainly be prosecuted for the fire, which was entirely proper to criminalize, he could not be prosecuted for burning a flag which was protected expression.

The initial burden of establishing a basis for the defense of vindictive prosecution falls on the defendant, who must show a “colorable claim,” which the court calls a “demanding” standard. It was up to Carey to produce some evidence that but for his exercise of free speech, he would not have been prosecuted.

Carey easily clears that bar. The executive order directing prosecutors to find charges to pin on flag burners, not to mention officers’ statements suggesting that the order might have played a role in Carey’s prosecution, each creates a colorable claim that the Government is punishing Carey for exercising his First Amendment rights. He has therefore shown enough evidence of actual vindictiveness to merit further inquiry.

Much like Trump’s impetuous commentary about the Muslim travel ban in his first term, Trump’s own words come back to bite him in his morbidly obese bottom.

If Carey instead travels the path of circumstantial evidence triggering a presumption, he arrives at the same place. He has certainly established a presumption. Any time a policy directs the Department of Justice to find charges to bring against people who exercise their rights in disfavored ways, the odds of vindictiveness are high indeed. Imagine if the President signed an executive order instructing prosecutors to add all charges they possibly could against any defendant who demands a jury trial. If a defendant exercised that right and prosecutors then acted consistently with the order, courts would have no problem smelling a risk of retaliation. Carey’s case thus fits a general fact pattern in which there is a realistic likelihood of vindictiveness.

There is a cost associated with Trump’s hyperbolic rhetoric calling for violations of the Constitution. Conduct which would otherwise be undoubtedly subject to criminal prosecution can be tainted by Trump’s commands to law enforcement to ignore the Constitution and punish transgressors for their exercise of their constitutional rights. When that happens, a rebuttable presumption is raised in the criminal prosecution, according to Judge Boasberg, resulting in the shifting of burdens.

The burden thus shifts to the Government to rebut the presumption with record evidence that justifies its action. As discussed above, the record shows that Defendant lit a risky fire that seemed to damage federal property. That gave the Government a good-faith basis to believe that Carey had violated federal law, which would justify prosecuting him.

The burden then shifts back to Carey to show that the justification is pretextual. He has produced an executive order that singles out people who engage in disfavored speech and tells prosecutors to find crimes to charge them with, as well as statements by officers that suggest this order may have influenced the Government’s choices here. The Court does not find that evidence decisive. But it does find that it creates a colorable claim of pretext—which, once again, entitles Carey to proceed further.

While Trump’s outlandish Executive Order pretending to criminalize the burning of the American flag, Texas v. Johnson notwithstanding, did not make Carey’s decision to start the fire any less criminal, he made his purpose clear.

Gesturing at the White House, Carey announced, “I’m burning this flag as a protest to that illegal fascist President that sits in that house.”

On the one hand, exercising the First Amendment right to free speech doesn’t absolve a person of their criminal conduct. On the other hand, if the prosecution would not have occurred but for the exercise of free speech, then it seeks to punish the speech and not the conduct. That violates the Constitution.

H/T Eugene Volokh