The Crisis, No. 9
On the criminalization of witness
The arrest of Don Lemon is beyond the pale.
Do I think Don Lemon erred in his behavior? Yes. I think he should have backed off that pastor, who was clearly overwhelmed and trying to maintain the dignity of his house of worship. It was painful to watch. The man had a congregation full of frightened people, protesters streaming through the doors, and a camera in his face demanding answers he did not have. Lemon pressed when he should have relented. That was a failure of judgment, a failure of decency.
But what Don Lemon was doing was First Amendment protected activity.
A journalist entered a public building during a newsworthy event with a camera. He asked questions. He documented. He witnessed. That is not a crime. That has never been a crime. That cannot be a crime if the First Amendment means anything at all.
Two federal judges already said so. The DOJ’s original complaint was rejected by Magistrate Judge Douglas Micko, who refused to sign it. The DOJ appealed. Chief Judge Patrick Schiltz—a former Scalia clerk, a George W. Bush appointee—rejected it again.
Two judges. One a Bush appointee who clerked for the most conservative justice of his generation. Both said: there is no case here.
The DOJ arrested him anyway.
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The Department of Justice sought permission to arrest a journalist for covering a protest. A federal magistrate said no. They appealed to the chief judge of the district. He said no. And then—without judicial authorization, against the explicit judgment of two Article III judges—they arrested him anyway.
This is not law enforcement. This is the nullification of law. The executive branch asked the judicial branch for permission, was denied, and proceeded regardless. The separation of powers exists precisely to prevent this. The requirement of judicial authorization exists precisely to prevent this.
They did it anyway.
Don Lemon was arrested at the Grammy Awards in Los Angeles. Federal agents took him into custody on a Thursday night, far from Minneapolis, far from the church, far from anything resembling an ongoing threat. This was not an emergency requiring immediate action. This was a political arrest, timed for maximum visibility, executed in defiance of two federal judges.
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The president demanded this arrest. On social media, in speeches, through his proxies—Donald Trump made clear that he wanted Don Lemon prosecuted. He called the protesters who entered the church “lunatics.” He called for Lemon to be jailed.
And the Department of Justice obliged, demonstrating the thoroughness of their capture into the servitude of Trump’s personal score settling.
This is what it means when the rule of law collapses. Not that laws cease to exist—they remain on the books, cited selectively, enforced against enemies. What collapses is the principle that law applies equally, that it constrains power, that it cannot be wielded as a weapon against those the leader dislikes.
Two judges said no. The president said yes. The president won.
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I have settled on a simple filter now for identifying those who have betrayed their oaths.
Any Article III judge who allows this arrest to stand—who does not immediately recognize it as the constitutional violation it so obviously is—has revealed themselves. Not as conservative or liberal. Not as originalist or pragmatist. As someone willing to wear the robe while surrendering the role.
The First Amendment is not ambiguous. “Congress shall make no law... abridging the freedom of speech, or of the press.” A journalist with a camera at a protest is the paradigm case. This is what the amendment was written to protect. If it does not protect this, it protects nothing.
Lemon’s behavior can be criticized. His judgment can be questioned. His conduct toward the pastor can be called rude, aggressive, inappropriate. All of that may be true. None of it makes his presence a crime. None of it justifies federal agents taking him into custody after two judges said no.
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Consider what is being protected and what is being prosecuted.
The agents who shot Renee Good: unnamed, uncharged.
The agents who shot Alex Pretti ten times in five seconds: unnamed, uncharged.
The Border Patrol chief who told his men “it’s our fucking city”: reassigned, not arrested.
The officials who ordered the occupation of Minneapolis: celebrated, not investigated.
The journalist who documented the protests: arrested.
This is the hierarchy. Killing is protected. Occupation is celebrated. Witnessing is criminalized.
The message is unmistakable: if you show up with a camera, if you document what we are doing, if you refuse to look away—you are next. The crime is not what Lemon did in that church. The crime is that he was there at all. The crime is sight. The crime is memory. The crime is the record.
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They are criminalizing witness.
This is not hyperbole. This is the pattern.
In Georgia, they seized the ballots—the physical record of how citizens voted five years ago. The Director of National Intelligence stood in the parking lot and watched the boxes loaded onto trucks.
In Minneapolis, they killed the witnesses. Renee Good saw a woman being pepper-sprayed and moved to help. She was shot. Alex Pretti documented the protests, marched in the streets, refused to look away. He was shot ten times.
In Los Angeles, they arrested the journalist. Don Lemon had a camera. He asked questions. He recorded. Now he is in federal custody.
Seize the record. Kill the witnesses. Arrest the journalists. The throughline is clear. They are eliminating the evidence of what they are doing. They are making it dangerous to see, to document, to remember.
The criminalization of witness is the final step before the record disappears entirely.
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There will be those who say Lemon deserved this. That he was not a “real” journalist. That he crossed a line. That entering the church made him a participant, not an observer.
Megyn Kelly has already made this argument: “journalists don’t get a pass when breaking the law just because they have a mic.”
But two federal judges—including a Scalia clerk—already determined that Lemon did not break the law. The judicial branch performed its function. It reviewed the evidence. It applied the law. It said: no crime here.
Kelly’s argument is not a legal argument. It is a permission structure. It is the language that allows people to accept the arrest of a journalist by pretending he was not really a journalist, that his conduct was not really protected, that the law was not really violated.
The law was violated. By the people who arrested him.
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I do not particularly admire Don Lemon. I found his conduct in that church difficult to watch. I think he failed a basic test of human decency when he pressed a pastor who was clearly in distress.
I am not writing this because I am a fan of Don Lemon.
I am writing this because the arrest of a journalist, after two federal judges refused to authorize it, at the demand of the president, is the end of the First Amendment as a functioning protection. If this stands, it stands for nothing. If this is permitted, anything is permitted.
The question is not whether you like Don Lemon. The question is whether you want to live in a country where the president can order the arrest of journalists who cover protests against him, and the Department of Justice will comply even when judges say no.
That is the country we now live in.
That is what happened last night.
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The pastor at that church—Jonathan Parnell—was trying to protect his congregation. He was overwhelmed. He did not ask for protesters to stream through his doors, did not ask for cameras in his sanctuary, did not ask to become a symbol in a political battle he did not choose.
I have sympathy for him. I think Lemon should have recognized a man at the end of his capacity and stepped back. That would have been the decent thing to do.
But Pastor Parnell is not the one who arrested Don Lemon. The protesters who entered his church are not the ones who arrested Don Lemon. The parishioners who were frightened and disrupted are not the ones who arrested Don Lemon.
The Department of Justice arrested Don Lemon. At the direction of the president. After two judges said no.
The offense against Pastor Parnell was rudeness. The offense against the Constitution is existential.
These are not equivalent. One is a failure of manners. The other is the failure of the republic.
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Where are the defenders of free speech now?
I ask this of the heterodox intellectuals, the Free Press columnists, the podcast hosts who have built careers on opposing “cancel culture” and defending “open inquiry.” Where are you?
A journalist has been arrested for journalism. Two judges said the arrest was not justified. The president demanded it anyway. This is not a hypothetical in a seminar on civil liberties. This is happening. Right now. In America.
Bari Weiss—who has a “pivotal role” at CBS News and $150 million from friends of the regime—where is your statement? Coleman Hughes, Arthur Brooks, the whole roster of Free Press contributors now broadcasting on a legacy network—where are you?
This is the test. Not whether you defend speech you agree with, but whether you defend speech the regime wants to criminalize. Not whether you stand up for your friends, but whether you stand up for the principle when the principle protects your enemies.
I am watching. We are all watching. The silence is being recorded.
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The crisis is deepening, and we approach the moment of serious decisions. For the regime, and for everyone else.
Minneapolis is occupied. Two citizens are dead. The ballots have been seized in Georgia. Alberta separatists are being courted with half-trillion-dollar offers. And now a journalist is in federal custody for the crime of witnessing.
Each step builds on the last. Each violation enables the next. The occupation required dehumanizing the targets. The killings required normalizing the occupation. The ballot seizure required establishing that law serves power. The arrest of Lemon requires accepting that journalism is a crime when it documents what power does.
This is not a slippery slope. We are not sliding. We are falling. And the ground is coming up fast.
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I began these pamphlets five days ago, after Alex Pretti was shot in the street for trying to help a woman being pepper-sprayed. I did not know then how far this would go. I did not know that a second citizen would be killed, that ballots would be seized, that the administration would court Canadian separatists, that a journalist would be arrested after two judges said no.
I know now.
The regime is testing the limits. Each action that goes unpunished becomes the floor for the next action. Each violation that is tolerated establishes the new normal. They are probing for the point at which resistance becomes real—and they have not found it yet.
Don Lemon is in custody. The judges who said no have been overruled by executive fiat. The First Amendment has been suspended in practice if not in name.
What comes next depends on what we do now.
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To the Article III judges who will hear this case: the record is being kept. Your names will be remembered. Your decisions will be documented. You will be asked, someday, to explain what you did when the executive branch arrested a journalist after your colleagues said no.
Choose carefully.
To the journalists still working: the arrest of Don Lemon is meant to frighten you. It is meant to make you think twice before showing up with a camera, before asking questions, before documenting what the state is doing. Do not let it work. The only protection now is numbers. They cannot arrest all of you.
To everyone else: I believe the armies of heaven are advancing. I believe this regime will fall. The gravitational field of reality always wins. The question is not whether—it is when, and at what cost.
Every day this continues, the cost rises. Every journalist arrested. Every witness killed. Every family shattered by the occupation. Every norm destroyed, every institution hollowed out, every line crossed. These are not the costs of defeat. They are the costs of victory delayed.
The revolution of conscience is coming. The moment of mass awareness approaches. When it arrives, the regime will discover that it has been building its own indictment, documenting its own crimes, training a generation in what tyranny looks like.
But between now and then, people will suffer. People will die. The bill is being written in blood and fear and broken families. Our task is not to prevent the inevitable victory—it is to hasten it, to shorten the night, to reduce the cost.
That is why I write these pamphlets. That is why journalists must keep showing up with cameras. That is why judges must keep saying no. That is why citizens must keep standing in the cold.
Not because we might lose. Because every day we fight, we save something. Every day we bear witness, we shorten the darkness. Every day we refuse to look away, we bring the dawn closer.
The criminalization of witness is the act of a regime that knows it is being seen. They would not arrest journalists if they were confident in their legitimacy. They would not seize ballots if they believed they had won fairly. They would not occupy cities if they trusted the consent of the governed.
They are afraid. They should be.
The record is being kept. The names are being written down. The costs are being counted.
And when this is over, we will remember.
Thank you for you chronicles of crisis
ME, MY THINKING, AND SAVING OUR COUNTRY.
My thoughts come in a continuous stream or thread: one idea leads to three more. It all started with the notion that Trump had the support of 40% of our country, and I thought that if we could lower that to 25%, we could save our nation. How could we do that? Flyers, ads on southern stations, going down south to knock on their doors.
And then I said, "Rocco, what if you turned the stick around and looked at it from the other side?” What if I no longer saw them as my enemies but as fellow citizens who also loved our country? How could I establish a dialogue with them? That led me to ask: how could I start a conversation with our entire country?
My wife, Carol, and I are always worried about the world our grandchildren are growing up in. We lived in a time of family closeness and involvement: I was part of a family of nine, and she had a tight-knit circle of relatives who lived near each other. It was a world of personal, social, and intimate contact. Our music reflected love and care, and we enjoyed slow dancing. As far as I can tell, my grandchildren's generation is obsessed with their iPhones and texting and would rather use them than interact face-to-face. It’s a world of isolation and disconnect, with little personal contact.
What if this condition is contributing to our social splitting? If so, how could I change this from being the future of our society?
And then this morning, I had a brain explosion. Rocco, you have spent your life teaching people to get to know themselves. You should remember that you were part of a five-day silent retreat with one thousand participants led by Thich Nhat Hanh, and you have felt the effects of that experience your entire life.
You hear the people of Minneapolis saying that something happens to them when they are together on the street resisting ICE. We see that being part of a community makes a difference, as evidenced by segments of our society that engage with it and are committed to community life.
So, this was my explosion: what if it could be arranged for a nationally designated time, for our entire country to have a moment to spend with themselves, a time for reflection. What if, let's say, nationally across our country, there could be a 30-minute time period where citizens would stop what they are doing and go to any church, synagogue, temple, or any designated place where they could sit and spend time with themselves, no phones allowed. They would have to leave somewhere other than on them. There was nothing said, no sermons, maybe only a bell to start the sitting and a bell to end the sitting, and at the end of the sitting, the members would stand and shake the hands of their neighbors and say hello, brother, or sister.
And they would happen nationally in the north, the south, the east, and the west. We would all stop our businesses, spend time together as a community, and experience the effect of being in a group. Thich Nhat Hanh stressed the importance of a communal experience, which he called a Sangha.
What if our fellow citizens living in the southern state could feel the joy of being part of a national movement—the kind we experienced during the Second World War and when 9-11 happened in New York—when the country was united and indivisible? What if we honestly believed in our country's legend and took pride in ourselves? Not divided by north and south, or by Republican and Democrat, but as citizens who respect each other.
I believe this kind of time exists in Islamic countries where there are daily universal prayer times, five times a day, and active community prayer gatherings. I know my mother was a devout Catholic who attended Mass and communion every morning at 6 AM, then returned home to make breakfast for the family. Her prayer was an important part of her life. That kind of mindset is a thing of the past.
Another idea was that in Congress, both the House and the Senate, a seating chart was issued each week where there would be no aisle split. Instead, they would be assigned seats in a mixed arrangement, with a Democrat next to a Republican, encouraging them to interact.
And then I woke up and went downstairs to make coffee.