Lt. Dan Choi’s trial was delayed for 10 days today after U.S. Magistrate Judge John Facciola ruled there was significant enough evidence for Choi’s lawyers to argue the government singled him out for “vindictive prosecution.” The delay allows the government time to appeal to a higher court to overturn the judge’s allowance for such a defense to be pursued. Facciola was unfazed by the prosecution’s maneuver:
FACCIOLA: I have made every effort to be as clear as humanly possible. In March and April, he was treated in a similar way — but in November he was treated in an entirely different way. [...] It is impermissible for the U.S. Government to prosecute differently on the basis of the content of First Amendment speech.
Choi and 12 others protested Don’t Ask, Don’t Tell by handcuffing themselves to the White House fence in November, but only Choi pleaded not guilty and fought his charge. According to internal emails, Randy Myers, assistant solicitor general at the Department of Interior, advised U.S. Park Police the morning of the protest to pursue federal charges of failing to obey a lawful order. Choi refused to accept any offer to dismiss the charges unless Myers (or a higher official) apologized.