More than seventeen months after DC police “kettled” and arrested 234 protesters, journalists, medics, legal observers, and bystanders, subsequently charging them with several riot-related felonies, the Trump administration was forced to dismiss the remaining Inauguration Day (J20) cases.
On Jan. 20, 2017, thousands of people protested the inauguration of Donald Trump in Washington, DC and across the country. In DC, police equipped with hundreds of thousands of dollars of munitions confronted an anti-capitalist and anti-fascist black bloc march, using copious chemical and projectile weapons to violently attack the crowd.
Early on in the march, which snaked through the downtown area, DC police commander Keith Deville declared the demonstration a ‘riot’ and repeatedly referred to “anarchists” while directing police to entrap the crowd.
In dogged pursuit of convictions, the Trump administration spent more than one and a half years and millions of dollars to pick a politically motivated legal fight over what amounted to a few broken windows at corporate storefronts along the march route.
With the support of many who considered this attack on political organizing and militant resistance to be precedent-setting, the defendants organized themselves and collectively fought back in a historic way. By agreeing not to cooperate with the prosecution, by sharing skills and information, developing short and long-term legal strategies, and working with mainstream and independent media to take control of the public narrative narrative, defendants and their supporters were hugely successful in fighting their charges.
In the end, out of 234 people arrested, less than two dozen pleaded guilty (mostly to misdemeanor riot), seven were acquitted at trial, and the rest had their charges dismissed by the court or the prosecution at different points along the way.
No one was convicted at trial, and only one person served (four months) jail time after pleading guilty.
While the end result is definitely a cause for celebration, the state has also inflicted irrevocable harm. The arrests and subsequent protracted legal battle disrupted the lives of over two hundred defendants and thousands of supporters, causing some to lose jobs and educational opportunities, and forcing most to focus on fighting legal charges rather than on building political movements or maintaining their lives.
The racist and repressive Riot Act
In many ways the J20 cases represent nothing new in terms of how the government can, and does, crack down on those it perceives as a threat. Fifty-one years ago, Congress passed the DC Riot Act (under which J20 defendants were charged), in response to anti-racist uprisings in Detroit and Newark that year. Shortly after its passage, police used the Riot Act to go after people in DC protesting the assassination of Martin Luther King, Jr. Then, as now, authorities had a deliberate intent to draw a (racist) distinction between political expression and “mindless, insensate violence.” So, too, did the prosecution in the J20 cases try to obscure any political relevancy to the protests and infer that people engaged in vandalism simply for vandalism’s sake.
The J20 cases have given us a unique opportunity to view and understand some of the contemporary ways in which the state disrupts the lives of—and represses—its political opponents and their communities.
Cracking cell phones and other devices
During the arrest process, the police seized everyone’s cell phones, along with other electronic devices people had in their possession at the time of arrest. After people were released from detention, police kept electronic devices as evidence and used a system produced by Israeli security company Cellebrite to obtain or bypass a device’s password in order to extract data and communications. Called a “forensic powerhouse” by The Intercept, Cellebrite contracts with municipalities, corporations, law enforcement agencies, including the FBI and Drug Enforcement Administration, Secret Service, Customs and Border Protection, as well as militaries around the world.
The amount of information retrieved from arrestees’ devices was formidable. One J20 defendant was provided with an 8,000-page document detailing the contents of their phone, from contacts, emails and texts to social media data and communications stored in the cloud. Though the prosecution was ultimately unable to secure convictions at trial, intimate details of many defendants’ personal lives and organizing networks became available to the state, and activists and organizers should think twice – or even three times – about going to an action with their phone. If the phone is absolutely necessary, it should be encrypted and secured with a long alphanumeric password, and any fingerprint or facial recognition features should be turned off.
Police accused of helping doxx defendants
Soon after the arrests, police were accused of providing defendants’ personal information to the right-wing website GotNews.com, resulting in harassment and other online problems for some defendants. This type of exposure of personal information, known as doxxing, is fairly common today but we don’t typically see evidence of police instigating the exposure. Nor do we typically see collaboration between the police and far-right groups, which is normally hidden by a veil of secrecy. The veil was pulled back during the J20 cases.
Black bloc or criminal conspiracy?
Although people arrested were initially charged with a single count of felony riot, the government soon upped the ante by charging people in April 2017 with at least eight felonies each. If convicted on all charges, people faced more than 70 years in prison.
In an attempt to criminalize association and radical organizing, and make all 200-plus defendants equally culpable for the same broken windows, the prosecutor used “Pinkerton liability,” and conspiracy, a criminal charge that is part of the state’s playbook. The government has a long history of criminalizing political protest through the use of conspiracy charges and the J20 cases were no exception. Lead prosecutor Assistant U.S. Attorney Jennifer Kerkhoff tried to convince jurors of a conspiracy by characterizing the demonstration as a “sea of black masks,” suggesting that a black bloc is inherently a criminal conspiracy, but the gambit failed and the jury acquitted despite the government’s attempts to portray activists as nefarious. Nonetheless, the state will likely continue to use – and attempt to bolster – this legal tool to criminalize militant resistance.
Using criminal cases to seize online data and communications
Another way the government used the legal system to disrupt activists on the left was to issue warrants for data and communications shared on Facebook and the organizing website DisruptJ20.org. In August 2017, the website hosting company DreamHost announced that the Department of Justice (DOJ) had served a warrant the previous month seeking the IP addresses for 1.3 million visitors to the website, as well as contact information, email content, and photos of thousands of people who were using the website to communicate with each other.
DreamHost worked with the Electronic Frontier Foundation (EFF) to fight what EFF labeled a “fishing expedition,” but the DOJ went to the DC Superior Court where the government was prosecuting the J20 cases to compel DreamHost to turn over the information. DC Superior Court Chief Judge Robert Morin limited the scope of the warrant, but in a blow to privacy and free expression, Judge Morin ordered the web hosting company to turn over all communication between individuals wanting to attend protests during the inauguration weekend and the organizers of those protests, to which DreamHost complied. The results were a clear indication of the confines of even purportedly progressive companies willingness to protect the free expression of their users.
A month after the DreamHost warrant came to light, Facebook announced that the DOJ had served the social media website with warrants targeting three of its users, two local DC organizers and the person who administered the website’s “Disrupt J20” page, none of whom were charged criminally. The warrants, which were served months earlier in February 2017, sought photos, videos, posts, private messages, video calls, billing information and other data from several weeks before, during and after the inauguration.
The targeted activists worked with the American Civil Liberties Union to fight yet another fishing expedition and, similar to the results in the DreamHost case, the judge limited the scope of the warrant while waxing eloquently about “private political speech and association,” and restricting the government’s ability to “rummage through the information contained on the Facebook accounts and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engage in protected First Amendment activities.” But despite the limitations in his order, Judge Morin ultimately ordered Facebook to turn over private, but user-redacted, communications to law enforcement. Facebook, like DreamHost, was only willing to go so far in trying to block the government’s efforts to obtain the private political speech of its users.
Collaboration with far-right groups was prosecution’s undoing
The allegations that police turned over defendants’ personal information to a right-wing website turned out to be the proverbial tip of the iceberg of collaboration between law enforcement and far-right political groups, collaboration that was eventually the government’s undoing.
The prosecution’s conspiracy allegations, which underpinned much of their case against J20 defendants, relied on video footage taken covertly by Project Veritas, the notorious far-right group known for its politically-motivated sting operations aimed at discrediting its political opponents. Although it was revealed during the first J20 trial in November 2017 that lead Detective Greggory Pemberton had gathered video footage from such right-wing groups as Rebel Media, Oath Keepers, and Media Research Center, the government centered the Project Veritas footage in its allegations of a widespread conspiracy.
Despite being shown Project Veritas video footage of a Jan. 8, 2017 protest planning meeting in the basement of a local church, the jury rejected the conspiracy allegations and acquitted all six defendants on trial. Shortly after the first trial, the Trump administration summarily dismissed 129 cases.
It wasn’t until the second trial in May that defense attorneys were able to interview the undercover videographer from Project Veritas and discovered that there were several infiltrators whose aim was to gather “intelligence” to pass on to law enforcement. More importantly, lawyers for upcoming trials found out that the government had failed to disclose nearly 70 video and audio clips relevant to the case, and had surreptitiously edited out evidence from the Project Veritas footage favorable to the defense. It was bad enough the government relied on private informants—a practice the Partnership for Civil Justice Fund says may have been used by police to skirt their own restrictions on surveillance and infiltration—but the government also doctored the video in Project Veritas-fashion to hide crucial evidence.
Prosecutorial misconduct, sanctions and dismissals, oh my!
The withholding of exculpatory evidence by the government is a common practice, but rarely revealed in routine court proceedings involving the people who are systematically targeted by police and the state on a daily basis.
Prosecutors have an obligation under the 1963 U.S. Supreme Court decision in Brady v. Maryland to disclose exculpatory evidence in advance of trial. Because of the government’s failure to adhere to its own rules, the prosecution was sanctioned by Judge Morin, dismissing the cases of several defendants awaiting trial. With the specter of Judge Morin dismissing conspiracy charges against all of the remaining defendants, the government conceded defeat in early July and dismissed everyone’s remaining charges.
To the casual observer, one might point to prosecutorial misconduct as the main reason for why the J20 cases fell apart. But, while collaboration with right-wing groups and hiding evidence certainly worked against the Trump administration’s legal goals, the strategies and tactics of defendants and their supporters should not be overlooked or underestimated.
Collective resistance in the legal system works!
Under the banner Defend J20 Resistance, defendants and their supporters came together early on in a great show of force. More than 130 defendants agreed to Points of Unity, refusing to cooperate against fellow co-defendants and committing to work together collectively to fight their charges. This collective effort extended beyond just the Points of Unity and included various forms of solidarity and mutual aid, such as sharing information with each other, developing and implementing legal strategies, working with the mainstream and independent media to shape the political and legal narrative, and helping to amplify that narrative in an environment of scant and inaccurate media coverage. Defend J20 Resistance was also responsible for organizing food, transportation and housing for defendants and supporters while in DC for court proceedings, and raising thousands of dollars to pay for it all. There was even a working group focused on everyone’s physical, mental and emotional well-being.
The effort to get media into the courtroom for the first trial was a huge success. By broadcasting the vulnerabilities of the government’s case along with its connections to far-right groups and biased, bigoted police witnesses, defendants were able to expose the political motivations of the prosecution. Once news of the acquittals from the first trial spread far and wide, the government had little choice but to dismiss scores of cases. By the time of the second trial, Defend J20 Resistance was able to effectively draw media attention to the evidentiary violations and subsequent sanctions against the government, making it impossible for the U.S. Attorney’s Office to proceed further.
This type of collective approach by political defendants is rare and worthy of reflection so activists can better understand what worked and what didn’t, what’s important to focus on and how to avoid the pitfalls of working within our oppressive legal system. Private debriefs and public discussions will likely ensue in the coming weeks and months but, without a doubt, strong solidarity, mutual aid and collective approaches to fighting the legal cases were hugely successful and kept hundreds of people from spending years in prison.
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Kris Hermes is a Canadian-based activist, author, and media worker who for the past 20 years has engaged with movements to resist grand juries and political repression, provide mass demonstration legal support, and help to defend high-profile criminal cases.