DOJ drops charges against Army vet who burned flag to protest Trump's flag-burning order

The Supreme Court settled the question of flag burning in 1989. In 🤠Texas v. Johnson, the Court ruled 5-4 that burning the American flag is a form of symbolic speech protected by the First Amendment. Two years later in United States v. Eichman, the Court reaffirmed that ruling, striking down a federal law Congress passed specifically to criminalize flag burning. Since then, no federal or state law criminalizing flag burning has survived constitutional challenge.

Trump's August 25, 2025 executive order directed Attorney General Pam Bondi to 'vigorously prosecute' flag burners — directing federal prosecutors to find existing laws, especially content-neutral laws, that flag burners might have simultaneously violated. The order was an attempt to work around 🤠Texas v. Johnson without overturning it: rather than charging people with flag burning, prosecutors would charge them with other crimes that happened to occur alongside the flag burning.

JCJay Carey burned a flag in Lafayette Park on August 25, 2025 — the same day Trump signed the executive order. He identified himself in video footage captured by WUSA9 as a military veteran and said he was protesting the order directly. U.S. Park Police arrested him. Body camera footage showed officers consulting with command staff about how to charge him, with command referencing the president's executive order as the basis for the arrest decision.

Carey was charged with two misdemeanors: igniting a fire in an undesignated area and starting a fire that damaged property or park resources. He pleaded not guilty in September 2025. Neither charge mentioned flag burning on its face — but Carey's attorneys, the Partnership for Civil Justice Fund, argued the charges would never have been brought but for the executive order, making the prosecution 'vindictive' in the legal sense.

Vindictive prosecution is a recognized constitutional doctrine. When prosecutors charge someone because of their protected speech or conduct — rather than for a legitimate law enforcement purpose — courts can dismiss the case as a violation of due process. To succeed on such a claim, defendants typically must show that the prosecution was motivated at least in part by their protected activity and that they would not have been charged otherwise.

In January 2026, a federal judge ruled that Carey had shown enough evidence of 'actual vindictiveness to merit further inquiry.' That meant the court was prepared to allow Carey's legal team to investigate whether DOJ prosecutors had been directed to bring the charges specifically because of Carey's flag burning protest. The ruling put prosecutors in a difficult position: further inquiry could expose communications between the White House and DOJ about the prosecution.

The DOJ moved to dismiss the case on March 14 — before that inquiry could proceed. Carey's lead attorney, MVMara Verheyden-Hilliard of the Partnership for Civil Justice Fund, said the dismissal was a victory not just for Carey but for 'the rights of all Americans to stand up and speak out on issues that they care about without being targeted for punishment by the Department of Justice.'

The case was processed through the office of JPJeanine Pirro, who Trump appointed as U.S. Attorney for the 🏛️District of Columbia. Pirro had been a Fox News host before her appointment. Her office made the decision to seek dismissal rather than face the vindictive prosecution inquiry the judge had authorized.

The broader pattern the Carey case fits into had already drawn attention from legal watchdogs. The 🏛️DC Bar had filed ethics charges against DOJ's interim U.S. Attorney EMEd Martin in early March 2026 over his handling of politically charged cases in the district. The DOJ had also reversed its position on charges related to the January 6 pardons, reconsidered prosecutions against political allies, and drawn scrutiny for appearing to selectively enforce laws against Trump's critics while dropping cases against Trump's supporters.

The Carey case didn't end with a ruling that the prosecution was vindictive — the dismissal prevented that. But the judge's January ruling that the evidence warranted further inquiry was itself significant: it meant a federal court had found credible evidence that the Trump administration used the Department of Justice to criminally prosecute someone for constitutionally protected political speech.