A federal appeals court refused to overturn a lower court judge’s decision not to sign warrants for the arrest of out journalist Don Lemon and four others this past Friday.

Lemon reported on a protest in a Minneapolis church, and the administration is trying to arrest him because, they argue, he was not actually acting as a member of the press but was actually participating in the protest.

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Last week, a federal magistrate judge rejected the Department of Justice’s (DOJ) attempt to criminally charge Lemon for broadcasting a protest at Cities Church in Minneapolis. The protestors called for the resignation of a pastor at the church, David Easterwood, who is also the acting field office director for Enforcement and Removal Operations (ERO) at an Immigration and Customs Enforcement (ICE) field office in St. Paul, Minnesota.

Three protestors were arrested for participating in the January 18 demonstration, and the administration has argued that the protest was an attack on a “house of worship” and, specifically, “Christian worshippers.”

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The DOJ appealed the federal magistrate judge’s decision.

Two judges on a three-judge panel on the U.S. Court of Appeals for the Eighth Circuit refused to overturn the magistrate’s decision. Two of the judges were appointed by the current president and the third was appointed by Barack Obama. One of the conservative judges wrote in a brief concurring statement that the DOJ did have probable cause to arrest Lemon, but agreed with refusing their appeal on technical grounds.

They unanimously rejected the DOJ’s appeal on Friday, with the decision published on Saturday, according to the New York Post. On Monday, the DOJ announced it would no longer pursue Lemon’s arrest.

Just after the magistrate judge refused to sign off on the arrests of Lemon and the four others, the DOJ turned to Minnesota Chief U.S. District Judge Patrick Schiltz to overturn the magistrate’s decision. This enfuriated Schiltz, who wrote an angry letter to Eighth Circuit Chief Judge Steven Colloton that never in “over 40 years” had any judge he worked with ever heard of prosecutors going to a district judge to overturn a magistrate judge’s decision, because usually prosecutors will just build their case better and go back to the magistrate judge again.

Schiltz also mocked the prosecutors’ case in the letter.

“Apparently, the government believes that the arrests of the leaders of the Cities Church invasion — whose arrests have received widespread international attention — will not deter copycats, but arresting five additional suspects will,” Schiltz wrote.

“The five people whom the government seeks to arrest are accused of entering a church, and the worst behavior alleged about any of them is yelling horrible things at the members of the church. None committed any acts of violence. The leaders of the group have been arrested, and their arrests have received widespread publicity. There is absolutely no emergency… The government can still take its case to a grand jury anytime it wishes.”

Lemon has been outspoken about the attacks on the free press coming from the current administration.

In a statement last week, Lemon’s attorney, Abbe Lowell, said, “The magistrate’s reported actions confirm the nature of Don’s First Amendment-protected work this weekend in Minnesota as a reporter. It was no different than what he has done for more than 30 years, reporting and covering newsworthy events on the ground and engaging in constitutionally protected activity as a journalist.”

Lowell promised to fight the charges “vigorously and thoroughly.”

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