The Justice Department on Friday moved to dismiss charges against a veteran whoset an American flag on fireacross the street fromthe White Housefollowing an executive order seeking to crack down on flag burning.
U.S. Park Police arrested Jan "Jay" Carey in August after he set the flag ablaze in Lafayette Square on the same day President Donald Trump signed the order. He pleaded not guilty to two misdemeanors — igniting a fire in an undesignated area and lighting a fire causing damage to property or park resources — brought by the office of Jeanine Pirro, U.S. attorney for the District of Columbia.
Carey was not charged with flag burning.
Mara Verheyden-Hilliard, a lawyer for Carey, called Friday's filing by the Justice Department "long overdue."
"This is a very significant victory for not only the First Amendment rights of Mr. Carey but the rights of all Americans to stand up and speak out on issues that they care about without being targeted for punishment by the Justice Department," Verheyden-Hilliard told NBC News in a phone call.
Pirro did not immediately respond to a request for comment.
The decision to drop the case follows a ruling by a federal judge in January that would have led to further inquiries into whether the prosecution of Carey was driven by Trump's executive order, which directs Attorney General Pam Bondi to "vigorously prosecute" people who burn the American flag while engaged in other offenses.
In 1989, the Supreme ruled in a 5-4 decision that the Constitution protects flag burning.
Chief Judge James Boasberg, in his January ruling, said that while the misdemeanor charges apply to Carey's flag burning, "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."
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On the day he was arrested, Carey said in asocial media videoposted by The Bulwark that included the flag burning that he was protesting Trump's policies.
"This was a direct protest about an illegal order that President Trump tried to put in place. I did not do this just for myself, but for everyone who believes in the Constitution and the protections for all that it provides," Carey said in astatement releasedby his legal counsel after his arraignment.
Carey's lawyer told NBC News that the DOJ's filing comes ahead of a Monday deadline in the case.
"The timing is surely not accidental, that they are moving to dismiss the charges immediately in advance of their obligation to provide information into their internal decision-making to prosecute Mr. Carey, as well as directives related to an executive order that we believe is not constitutionally sound," said Verheyden-Hilliard, a co-founder of the Partnership for Civil Justice Fund, a Washington-based civil rights law firm.
Trump's executive order does not make burning the American flag a crime or assess a penalty for it, but instead argues that flag burning is "likely to incite imminent lawless action." It also gives the attorney general the opportunity to "pursue litigation to clarify the scope of the First Amendment exceptions in this area."
The dropped case marks another setback for Pirro, a Trump ally, during her tenure as U.S. attorney.
In November, a juryacquitted the so-called D.C. sandwich guywho was charged with hurling a sub at a federal agent. The acquittal came after a federal grand jury refused to indict him on the felony charge sought by Pirro's office.
Last month, a federal grand juryunanimously rejected an effort by prosecutorsto indict Democratic lawmakers over a video posted to social media urging members of the military not to comply with illegal orders.
And on Friday, subpoenas from Pirro's office targeting Federal Reserve Chair Jerome Powell were blocked by Boasberg, who said prosecutors "produced essentially zero evidence" to suspect Powell of a crime.