by Mike Isaacson
ENDING A YEAR of legal proceedings, the prosecution of a group of Trump inauguration-day protesters concluded last week with the acquittal of all the accused. Six of the 194 defendants faced upwards of sixty years in prison for attending a January 20th inauguration-day anti-Trump march.
The stakes of the “J20” trial were immense. According to the state’s legal argument, engaging in normal protest activities — attending the march, communicating information about it, bringing first-aid supplies, and broadcasting the event — made the defendants retroactively culpable for all illegal activity that transpired. While 188 defendants still face similar charges, this first round of acquittals is a good sign that the right to assembly and freedom of the press will remain intact.
According to Sam Menefee-Libey of the Dead City Legal Posse, an organization coordinating travel and housing for defendants, “The prosecution’s heavy reliance on ‘evidence’ from alt-right sources, the prosecution’s broad theory of conspiracy, and the odd parade of police witnesses who readily admitted to preemptively criminalizing so-called ’anti-establishment’ organizations and brutalizing people in the street, made this a very strange prosecution.”
Throughout the case there were a number of irregularities. During the pretrial, hearing dates were rescheduled without notifying defendants who were required under penalty of arrest to attend. Law enforcement agents were demonstrated by the defense to be lying on the witness stand, and in closing arguments, lead prosecutor Jen Kerkhoff all but told the jury that their instructions were irrelevant and that reasonable doubt “doesn’t mean a whole lot.”
“We saw that the U.S. Attorney’s office has no problem with the fact that their interests overlap with [rightwing organizations] Project Veritas or the Oath Keepers,” explained Menefee-Libey. “We also saw that the DC Superior Court is willing to let all of these things proceed under their legitimizing purview. This was procedurally strange, but politically and morally terrifying and abhorrent.”
Despite these irregularities, the case still went to a jury which, after four days of deliberation, found the defendants not guilty. In an interview with independent news outlet Unicorn Riot, one of the jurors said, “It was not a close call. The prosecution admitted the morning of day one that they would present no evidence that any of the defendants committed any acts of violence or any vandalism.”
ON JANUARY 20, 2017, activists took to the streets in several downtown DC locations to protest the inauguration of Donald Trump. Before dawn, protesters locked themselves together to barricade the entrances to the inauguration site, while at noon a permitted family-friendly protest march traversed the middle of the nation’s capital. According to court documents, law enforcement had infiltrated the planning for all three events but zeroed in on the the anti-fascist, anti-capitalist bloc, which departed from Logan Circle at 10:00 that morning.
Despite apparent concerns about their undercover infiltration methods, the DC police opted not to contact the protest organizers, as required by the department’s Standard Operating Procedures (SOP) regarding First Amendment activity. On the day of the protest, moreover, the police violated more of their SOP: In radio communications entered into evidence, the police commander and frontline officer discussed whether the protesters were anarchists, and made the call to mass arrest before the march even left the park, which violates their SOP requirement that protesters be arrested and charged individually. (Since the SOP was issued in 2004, mass arrests have been effectively prohibited in DC.)
After the march left the park and a few windows were smashed, the police surrounded protesters and deployed riot control weapons without the SOP-mandated three dispersal warnings before moving in to make arrests. In all, over 200 people, including journalists, street medics, and legal observers, were arrested, and 196 were charged with crimes that could lead to over sixty years in prison.
ALTHOUGH THE PROSECUTION attempted to center the case around the property destruction — even dramatically playing audio of windows being broken during closing arguments — what the case revolved around was an extremely loose theory of culpability. The evidence that the prosecution used to connect the defendants to the illegal activity consisted of standard practice for any form of civil disobedience: text messages seeking the location of the protest, livestreaming, bringing first-aid equipment, and chanting “Whose streets? Our streets!”
Ultimately, the prosecution’s collective theory of culpability tests whether any person involved with any protest can be charged with any illegal activity that occurs.
“The jury’s decision represents a resounding victory,” said Jude Ortiz, Mass Defense Committee Chair of the National Lawyers Guild in a press release, “as they refused to substantiate the prosecution’s complete lack of evidence and view of political organizing as criminal activity.”
The issue isn’t over, however; any convictions among the remaining 188 defendants could mean that standard protest tactics, whether street blockades or office occupations, could rope every person involved into a collective liability for all illegal activity alleged to occur. Non-profit political action groups, grassroots social movements, and unions would all be severely hampered in their ability to engage in any sort of civil disobedience.
Despite their loss, the prosecution intends to pursue the other cases, which were postponed until the next calendar year. This prosecutorial persistence, despite the complete acquittal in the first round of trial,s has led some activists to question whether the punishment is the judicial process itself.
“The trial has been grueling for everyone, but especially the six defendants on trial,” said Menefee-Libey. “One had to leave their job. They all had to live in DC for an indefinite amount of time while the prosecution dragged out the case, forcing them away from their communities and loved ones.”
In the coming year, the remaining 188 accused will continue to have their lives disrupted as the prosecution attempts to pursue a theory of criminal culpability that strikes at the core of speech and press rights. The fate of these remaining defendants stands to stifle any form of public protest since it is impossible to forecast with certainty whether illegal activity will occur.
Those wishing to support the remaining 188 defendants can donate to the legal defense fund here.