Free Speech Victory: Charges Dismissed in Trump Administration's Vindictive Prosecution for Flag Burning Protest Near White House

Background

The Partnership for Civil Justice Fund (PCJF) and its Center for Protest Law & Litigation provided pro bono representation to U.S. Army veteran and free-speech advocate Jay Carey, who was subjected to vindictive prosecution in federal court by the Trump Administration for burning an American flag in Lafayette Park in front of the White House. On August 25, 2025, Mr. Carey, a former sergeant first class who was deployed to Bosnia, Iraq, and Afghanistan, burned an American flag immediately following President Trump’s signing an Executive Order directing the Attorney General to prioritize “the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration.” Flag burning is a constitutionally protected form of expression.

We moved to dismiss the charges leveled against Mr. Carey by the Bondi Justice Department as vindictive prosecution targeting constitutionally protected expression, with which the President disagrees, for punishment. Subsequently, Chief Judge James E. Boasberg of the U.S. District Court for the District of Columbia ruled that Mr. Carey was “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.”  

Following Justice Boasberg’s ruling that Mr. Carey could proceed with a vindictive prosecution defense challenging the government’s attempt to prosecute him for burning a flag in protest of President Trump’s Executive Order targeting flag-burning, we issued discovery demands to the government seeking information into this prosecution and into the Executive Order. On March 13, 2026, the day before the government was obligated to provide responsive materials to us, the U.S. Department of Justice moved to dismiss the criminal case against U.S. Army veteran Jay Carey. The prosecution against Mr. Carey has now been dismissed with prejudice. 

Body worn camera footage from the scene recorded that while Mr. Carey was being detained in Lafayette Park, command officials were conferring with the U.S. Attorney’s Office to discuss charging him and discussing Trump’s Executive Order. The officer listed as the U.S Park police supervisor on the arrest report is also heard on video stating, “So the President just today signed an executive order that says we’re arresting him. We got that going for us. The executive order is signed.” 

The Court held that the government’s justification for Mr. Carey’s prosecution — alleged regulatory violations — does not resolve whether Mr. Carey would have been prosecuted absent his protected speech, and that he has shown “enough evidence of actual vindictiveness to merit further inquiry.”  

The Court also noted that “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.”  

Mr. Carey has said: “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.”

Mr. Carey was represented by Mara Verheyden-Hilliard, co-founder and Executive Director of the PCJF and its project, the Center for Protest Law & Litigation, and Nick Place, staff attorney with the PCJF and CPLL, and a Marine veteran.