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Judge throws out conviction of activist who laughed during Jeff Sessions confirmation

Protesters, including Desiree Fairooz (center), hold signs at the Senate Judiciary Committee confirmation hearing for Jeff Sessions, a former Republican senator from Alabama, to become attorney general on Capitol Hill in Washington, on Jan. 10. (Kevin Lamarque/Reuters)

A Washington judge on Friday ordered a retrial in the case of an activist who was arrested after laughing during Attorney General Jeff Sessions’s Senate confirmation hearing in January.

Desiree Fairooz’s arrest and conviction had sparked outrage from those who felt that it set “a dangerous precedent” for cracking down on political protests.

In a statement, Fairooz called the retrial a waste of time and taxpayer money.

Judge Robert E. Morin, the chief judge of the D.C. Superior Court, threw out a previous conviction for Fairooz, 61, who in May was found guilty of two misdemeanor charges of unlawful conduct on Capitol grounds and faced up to six months in jail.

She had attended Sessions’s Jan. 10 confirmation hearing along with about two dozen other members from Code Pink, a progressive activist group that regularly protests at Congress.

In the middle of the hearing — just after Sen. Richard C. Shelby (R-Ala.) stated that Sessions’s record of “treating all Americans equally under the law is clear and well-documented” — Fairooz laughed audibly.

“Sen. Shelby had said such an absurd thing about Jeff Sessions’s record that Fairooz involuntarily laughed,” Medea Benjamin, a Code Pink co-founder who was sitting next to Fairooz at the January hearing, told The Washington Post Friday.

Fairooz was swiftly arrested by Capitol police at the hearing. In video of her arrest filmed by HuffPost, she can be seen protesting and asking why she is being led out of the Senate’s Kennedy Caucus Room.

On Friday, the judge said Fairooz should not have been tried for laughing but only for speaking out as she was removed from the hearing room, according to a Code Pink statement.

Benjamin told The Post that the group was “stunned” by the judge’s decision — particularly because Fairooz had only spoken out in the hearing room because she had been arrested for laughing, she said.

“I would have never spoken out at the hearing if I hadn’t been arrested for laughing, and now I am going to be tried again! It’s absurd,” Fairooz said in a statement.

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Fairooz did not immediately respond to a request for additional comment Friday afternoon. Her new trial is scheduled for September, court records show.

Arrests of protesters on Capitol Hill are not rare, but the idea that Fairooz had been considered disruptive for laughing caused controversy. In May, unnamed jurors told HuffPost that they had convicted Fairooz based on her behavior after Capitol police officer began to remove her for laughing.

Over the last several months, Fairooz has maintained that it was wrong for the police officer to have tried to escort her out for laughing in the first place, and that she would not have otherwise said anything during the hearing.

Jan. 10 had been a busy day at the U.S. Capitol for police, who ejected multiple protesters who repeatedly interrupted Sessions’s confirmation hearing.

Protesters repeatedly interrupt Sessions's confirmation hearing (Video: Peter Stevenson/The Washington Post)

Two other Code Pink activists, Lenny Bianchi and Tighe Barry, were also arrested that day. The pair had shown up at the Senate confirmation hearing dressed in white hoods and robes to appear like Ku Klux Klan members, a reference to controversial comments Sessions once said he had jokingly made about the Klan. Before the confirmation hearing began, Bianchi and Barry were arrested and escorted out of the room.

Benjamin told The Post that the group had been surprised by Bianchi’s and Barry’s arrests as well, since they only protested “before the gavel went down.”

She said members of Code Pink, which began in 2002 in an effort to stop the Iraq War, are fixtures at Congress and know to “sit down and put our signs away” once a hearing begins.

“That is what Lenny and Tighe had planned to do but they were arrested before the hearing began,” Benjamin said. “We’re so used to doing these protests and just being asked to leave that the whole thing to us was a surprise.”

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In May, a jury found Bianchi and Barry guilty on one count each of unlawful conduct on Capitol grounds and parading on Capitol grounds. On Friday, the same judge fined the men $100 and ordered them to 10 days of suspended incarceration and six months of probation from Capitol grounds for each charge.

Code Pink protested those punishments as well.

“These sentences are designed to discourage dissent and prevent activists from engaging in the daily protests that are taking place during this tumultuous time,” the group said in a statement. “Code Pink feels that the judge should have overturned these absurd convictions and dropped all three cases.”

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