By Brian Martucci, Minnesota Reformer
An ill-advised post on official White House social media may have damaged the Trump administration’s own case against at least one of the people who disrupted Sunday service at a St. Paul church where a pastor is a top Twin Cities immigration enforcement official, legal experts say.
The post, shared Thursday, depicts a federal agent escorting Twin Cities attorney and civil rights activist Nekima Levy Armstrong earlier that morning. The agent’s face is blurred; Levy Armstrong’s appears contorted and covered in tears.
But the image from the White House differed starkly from the one Homeland Security Secretary Kristi Noem posted on her official X account 30 minutes earlier, showing Levy Armstrong gazing placidly into the distance. The New York Times ran the White House’s image through Resemble.AI, an AI detection system, and “concluded that it showed signs of manipulation.”
Within hours, the White House confirmed to CNN reporter Daniel Dale that the image it posted was indeed altered. A spokesperson shrugged it off: “Enforcement of the law will continue. The memes will continue.”
The problem for the government: The prosecution is banned from making statements — including social media posts — that could influence potential jurors’ feelings about a case. The American Bar Association’s code of professional conduct warns prosecutors and their associates to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”
Levy Armstrong’s attorney, Jordan Kushner, did not respond to the Reformer’s requests for comment. In a press conference following Levy Armstrong’s arraignment Thursday, Kushner called the charges “political” and “not a legitimate prosecution.”
The case against Levy Armstrong is among those that arose out of the extraordinary pushback from Minnesota residents against Trump’s immigration crackdown in the state. Matters have intensified since the enforcement began in December, and especially with the recent fatal shootings of Renee Good and Alex Pretti at the hands of federal officers.
Pete Johnson, a Minneapolis-based criminal defense lawyer with prior experience as a state and county prosecutor, said prosecutors have to be careful about what they say before bringing a case to trial.
“Anytime there’s potentially prejudicial pretrial publicity, that can affect the case…you don’t give your opinion and try to make your case in the media because it can prejudice the jury pool,” Johnson said.
He said the risk is twofold. First, defense attorneys can invoke prosecutors’ extrajudicial comments in pretrial motions challenging the legitimacy of the charges. And second, he said, “I think there are serious ethical issues involved in trying to tarnish a person in the public eye and the media instead of letting the court process play out.”
Senior U.S. law enforcement officials, including FBI Director Kash Patel, have said the activists violated a 30-year-old law intended to prevent forceful interference with religious worship, medical consultations and other activities protected by the First Amendment.
In the post announcing Levy Armstrong’s arrest, Noem referred to the disruption at Cities Church last weekend as “the Church Riots in St. Paul, Minnesota.”
Ken White, a Los Angeles-based criminal defense attorney and “First Amendment litigator,” said in a series of recent social media posts that federal prosecutors would need to make the case that the activists “used the threat of force and physical obstruction” to interfere with and intimidate congregants.
“From what I have seen that’s very questionable, and would make any protest in a church automatically a violation of the statute,” White said. He added that the defendants could challenge the case on grounds that it interfered with their own First Amendment rights, though they might not succeed.
“Selective and vindictive prosecution challenges” would be harder to prove, White said.
Federal law enforcement officials say more charges could be on the way in the Cities Church case, but it’s unclear when those will come or whether they’ll stick.
Citing an anonymous source, PBS News reported that a Twin Cities judge rejected prosecutors’ request to charge the independent journalist and former CNN anchor Don Lemon, who was present at the protest. The report follows an apparent pattern of local judges rebuffing prosecutors seeking to arrest people protesting federal law enforcement actions in the Twin Cities.
In a statement posted to Lemon’s YouTube channel, Lemon’s attorney said the veteran reporter’s actions last weekend were “no different than what he has done for more than 30 years, reporting and covering newsworthy events on the ground and engaging in constitutionally protected activity as a journalist.”
Johnson said he couldn’t comment on the specifics of Lemon’s case, but added that courts expect prosecutors not to bring cases that are likely to be thrown out on First Amendment grounds or otherwise have slim chances of success.
“Prosecutors will regularly decline to bring a case, saying we can’t prove (it) beyond a reasonable doubt,” he said.
So far in President Trump’s second term, however, senior federal law enforcement officials have appeared willing to flout this longstanding norm of “prosecutorial discretion” in cases with high political or personal salience for Trump.
Under Pam Bondi, Trump’s attorney general, the U.S. Department of Justice has brought questionable prosecutions against Trump’s perceived enemies, including former FBI Director James Comey and New York Attorney General Letitia James, who both had charges dismissed against them.
“Even being charged and brought into court is a costly and burdensome position to be in” for a defendant, Johnson said.
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