Dan Choi and Robert Feldman

Feldman and Choi outside Prettyman Courthouse in DC

Judge Lamberth’s decision to grant mandamus and therefore exclude Dan’s defense of selective/vindictive prosecution would be otherwise unreviewable, because it is not a decision by Judge Facciola that we could then have reviewed on appeal upon a  theoretical conviction   This derives from the fact that Judge Lamberth lacked jurisdiction and had to jump  through unique and novel hoops to reach this unpredecented result.  The decision also deprives Dan of the Federal Criminal Rule 48 defense we preserved at trial.


We intend to go up to the  Court of Appeals for an expedited review of Judge Lamberth’s decision granting the Government’s petition for mandamus.

We simultaneously stand ready to continue the criminal trial before Judge Facciola and are still confident that Judge Facciola will find our client NOT GUILTY.


Robert J. Feldman is one of the attorneys representing Dan Choi in his trial on federal charges for protesting DADT in front of the White House.  After the judge made a prima facie finding that Choi could attempt to prove the DoJ was vindictively prosecuting Choi, the DoJ filed a Writ of Mandamus to prevent the judge from allowing Choi to argue it as a defense.  Feldman filed his response yesterday, and shortly thereafter the Secret Service released emails showing it was the White House that had alerted them to the protest before it happened.  You can find these documents on FDL’s US vs Choi Archive page — jh

In our response to the government’s petition for Writ of Mandamus, we argue that there are no grounds for relief and that the elements for filing a Mandamus Writ have not been met. The Government could have appealed Judge Facciola’s finding of prima facie proof of vindictive or selective prosecution instead of issuing the Writ; further the Government is not irreparably harmed by Facciola’s finding because the government had multiple opportunities to develop a case that would rebut any selective or vindictive prosecution defense put forth by the Choi legal team.

Witness testimony from the trial shows evidence of selective or vindictive prosecution of Choi and the group when the Government literally brought in an army of USPP to respond to their act of civil disobedience. They were speaking out against President Obama on Nov. 15, 2010 when Choi was arrested with 12 others after members of the group handcuffed themselves to the White House fence during a protest against the military’s “Don’t Ask, Don’t Tell” policy banning LGBT service members from serving openly.

Finally, we argue that the government has “dirty hands” and their Mandamus Writ should be rejected because of the way in which it persecuted Choi by prosecuting him separately from the rest of the group even after all 13 protestors had been offered a “wired” plea deal (which Choi did not accept), how the government neglected to prepare adequately for the case and how the Government withheld material — which it had a duty to disclose — that would have aided Choi’s defense strategy.

We will permit the government a reasonable time to reply if they wish.  And when they lose this Mandamus, one of three things will happen: Dan Choi will be acquitted, the charges against Dan Choi will be dismissed, or —  the most preferable of all —  the trial will continue, and the United States vs. Choi will become Choi vs. The United States, de facto.

It is in the interest of the whole LGBT community for the trial to continue, where the GOVERNMENT rather than Choi would be on trial.


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Robert Feldman

Robert Feldman