The Prosecution Was Public. Accountability Goes Down the Hall.

Jeanine Pirro announced David Hearn’s Reflecting Pool indictment at a July 2 news conference, accusing the former Olympic canoeist of ripping up the liner with his hands. The government’s eventual explanation was less cinematic: botched installation. Now the demand to investigate the prosecution has reached the part of Washington where responsibility is mainly a question of which office receives the envelope.

Hearn was arrested June 19 and indicted less than two weeks later. Prosecutors moved to dismiss on July 31, citing evidence that contractor error caused the damage. Judge Todd Edelman granted dismissal August 6, then made it permanent on October 1, citing the risk of a politically driven reprosecution. His order said the government had “shot first and asked questions later.” Hearn had to litigate whether a case prosecutors conceded was meritless could remain available for future use. An innocent man’s peace of mind apparently required a separate proceeding.

There is an important limit to that ruling. Edelman did not decide whether the government acted in bad faith. He said its quick move to dismiss strongly supported its claim of good faith at that stage. Correcting a prosecution when the evidence collapses is what prosecutors should do. It does not answer why they obtained the indictment before finishing the basic investigation.

According to Hearn’s lawyers’ October 21 letter, reported by AP and CBS, Justice Department Inspector General Don R. Berthiaume declined to investigate, citing jurisdiction, and referred the matter to the Office of Professional Responsibility. A referral does not confirm that OPR has opened an investigation. It certainly does not exonerate the prosecutors.

The jurisdictional explanation has real law behind it. Federal statute directs attorney-duty misconduct allegations to OPR. It also authorizes investigations of DOJ component heads, while regulations permit the deputy attorney general to assign an OPR matter to the inspector general at the inspector general’s request. Calling an allegation criminal does not automatically erase the attorney-duty restriction. Neither does that restriction establish that every possible avenue of review is closed.

Hearn’s lawyers allege potential crimes, including witness tampering and obstruction, and want independent scrutiny. Those are allegations, not findings. OPR is separate from the litigating offices and describes its director as nonpartisan, but it reports directly to the attorney general and deputy attorney general. The department that prosecuted Hearn would supervise that review. His lawyers fear it will lead nowhere; the referral alone cannot prove their prediction.

AP reported that Pirro’s office did not respond when the lawyers raised their allegations earlier this month. Nobody needs a predetermined finding against prosecutors. They need an investigation capable of explaining what happened, and an answer the public can assess. The accusation against Hearn was suitable for a news conference. The question of how he ended up there should not become an internal routing problem. Washington found room for the cameras. It can find room for an explanation.