The White House’s decision to post a doctored photo of a woman arrested in Minneapolis on Thursday will probably be raised in court as her criminal case proceeds, though it is unlikely to derail the case entirely, legal experts said.
The woman in the image, Nekima Levy Armstrong, is one of three people who was arrested on Thursday in connection with a disruptive protest at a church service. About 30 minutes after Kristi Noem, the homeland security secretary, posted a picture of her arrest, the White House posted a digitally altered photo of Armstrong in which her skin appears to be darkened and with tears running down her face. Noem posted pictures of two other defendants arrested on Thursday in connection with the protest, but only posted an altered image of Armstrong.
Criminal defendants in the US are presumed to be innocent until they are proven guilty. As a result, prosecutors are supposed to refrain from making statements that could be prejudicial or lead a jury to be biased against a defendant.
“This is supposed to be a legal process, not a political circus, which they’ve made it,” Jordan Kushner, an attorney representing Armstrong, told CNN on Thursday evening. “To do altered video, let’s not sugarcoat this – this is the hallmark of a fascist regime, where they actually alter reality, in this case literally, in order to meet their narrative.”
The White House has not disputed the image was digitally altered. Asked for comment on the image on Thursday, the White House sent a link to a post on X from Kaelan Dorr, the White House deputy director of communications. “YET AGAIN to the people who feel the need to reflexively defend perpetrators of heinous crimes in our country I share with you this message: Enforcement of the law will continue. The memes will continue. Thank you for your attention to this matter,” the post said.
The image could arm Armstrong’s defense with an opportunity to question the government’s credibility around video and photographic evidence as well as argue the case has been tainted by prejudice.
“One of the arguments against perp walks, which is prohibited under DoJ policy, is that it could prejudice the potential jury pool,” said Barbara McQuade, the former US attorney for the eastern district of Michigan. “Most often such prejudice can be overcome during jury selection by choosing jurors who have not seen it, but it certainly creates an issue that prosecutors will have to litigate.”
The White House’s decision to post the image might not be enough on its own to doom the case.
“This might have been done by non-attorneys in the government without prosecutors’ knowledge and they would not be subject of course to an attorney disciplinary process, which is how these rules are enforced,” said Samuel Buell, a former federal prosecutor who is now a law professor at Duke University. I have no doubt defense counsel will raise this issue if there is an opportunity to do so.”
Ken White, another former federal prosecutor who is now a defense lawyer in Los Angeles, said he did not think the image would affect the case.
“It’s very sleazy, and a good example of the juvenile and petulant ethos of the sort of people who work for the Trump administration,” he said. “Though contemptible it falls very far short of the sort of misconduct that federal courts require to find ‘outrageous government misconduct’ that might trigger a remedy like dismissal. It’s also significantly short of the kind of evidence that could support a motion to dismiss for vindictive prosecution.”
Still, he added, there may be other reasons for posting the picture.
“The reason this prosecution is so appealing to the administration is that the parishioners were white and the defendants are Black,” he said. “The opportunity to degrade a Black woman thrills the kind of people who work in the Trump administration and appeals to the kind of people who support the Trump administration.”
