The criminal case against former Olympic canoeist David Hearn is now officially dismissed. But there’s still a crucial question that remains open: Will the dismissal be permanent, or will the Justice Department be allowed to try to revive it in the future?

In moving to dismiss the indictment she had touted at a press conference just last month, U.S. Attorney Jeanine Pirro said her initial allegation that Hearn vandalized the Lincoln Memorial Reflecting Pool was marred by her office’s subsequent discovery that the damage to the landmark was actually due to a botched installation.

Yet even though her motion drew President Donald Trump’s ire and called her future as the District of Columbia’s top prosecutor into question, it didn’t seek a permanent dismissal. Rather, Pirro sought to drop the case “without prejudice,” meaning she moved to dismiss it in a way that would leave her free to revive the charges later.

Hearn’s lawyers responded that the dismissal should be “with prejudice” because of what they called “the extraordinary circumstances of this case.” They said the indictment was “motivated by political considerations and devoid of adequate factual support” from the very start, and that a permanent dismissal is needed to prevent the risk of “harassment and bad faith” by the government.  

On Thursday, Superior Court Judge Todd Edelman entered an order dismissing the case but without resolving whether to do so with or without prejudice. The judge observed that both parties agreed the case should be dropped, even if they disagreed about how. “Given the positions of the parties, the Court discerns no reason why this felony case should remain pending against Mr. Hearn while the parties litigate, and the Court resolves, the remaining legal issues,” Edelman said in the order.

He’s giving the government until Aug. 18 to respond to Hearn’s prejudice argument, after which Hearn’s lawyers will have another week to file a final written argument. The judge said he will schedule a hearing, and it’s currently unclear when he will issue a final decision or, more importantly, how he will decide.

Another high-profile instance of a judge weighing whether to dismiss a case with or without prejudice came earlier in Trump’s second term, in the Eric Adams case. There, the DOJ moved to dismiss the corruption indictment against New York City’s then-mayor without prejudice, which would have given Trump political leverage over Adams to revive the case later if the administration were to become displeased with his cooperation on immigration enforcement or anything else.

Yet the effort, led by Emil Bove, who was a top DOJ official at the time and is now a federal judge, failed. Dismissing the case with prejudice, U.S. District Judge Dale Ho said that he “cannot and will not authorize such a result,” citing the concern of the charges “hanging like the proverbial Sword of Damocles over the Mayor.” If a dismissal against Adams was, in fact, warranted, Ho said, then it should be done with prejudice, to protect “a defendant’s right to be free from prosecutorial harassment.”

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