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Inside the J20 Prosecution: How the Feds Are Criminalizing Dissent

In its case against inauguration protesters, the government is aligning itself with far-right propagandists and fringe vigilantes.
Police officers push back demonstrators as they protest against President Donald Trump in Washington, D.C., on January 20th, 2017.

Police officers push back demonstrators as they protest against President Donald Trump in Washington, D.C., on January 20th, 2017.  

Amid the various protests against President Donald Trump's inauguration on January 20th, one stood out: the now-famous J20 protest, where more than 200 demonstrators, journalists, legal observers, and medics were arrested by D.C. Police. Of those arrested on January 20th, 194 now face felony charges and up to 70 years in prison. The first in what will be many trials in the J20 case began in November.

Given so many protesters being charged with felonies, legal experts (and the defendants themselves) are concerned that these trials are being carried out merely to stifle political dissent. When we consider the prosecution's repeated use of specious evidence supplied by politically motivated members of the right and far right, those worries seem justified.

The trial for the first group of protesters—six people, including two medics and a journalist—began on November 15th. Defendants are accused of multiple felonies and misdemeanors, including conspiracy to riot, inciting a riot, and destruction of property. The charges are primarily tied to property damage carried out by a few people during the J20 protest. Speaking of these six defendants, the prosecutor, Assistant United States Attorney Jennifer Kerkhoff, has said: "We don't believe any of the defendants personally engaged in property destruction." Yet the defendants are still standing trial for it.

By all accounts, D.C. Police had infiltrated J20 organizing meetings ahead of the inauguration. The department also spent hundreds of thousands of dollars girding themselves to confront protestors: According to the D.C. National Lawyer's Guild, the D.C. Police purchased more than $300,000 worth of equipment ahead of January 20th, including gas masks, batons, and smoke bombs. Cops deployed non-lethal chemical weapons such as pepper spray against the crowd before kettling (i.e. confining) more than 200 people—including journalists and medics as well as protesters—and eventually made a mass arrest.

Michael Loadenthal, a sociologist specializing in social movements and a J20 defendant, tells Pacific Standard that, while the Trump administration presents heightened threats to political dissenters, the trial is part of a power dynamic that predates any single recent presidency. "This is largely the effort of the state protecting its power," Loadenthal says, "not one particular politician." Loadenthal adds that the J20 trials could have consequences for protesters beyond the far left.

Elizabeth Lagesse, another J20 defendant who is currently on trial, agrees with Loadenthal. "I don't think you have to be on the left to feel" that this trial is an attempt to chill dissent, she says. "At any kind of protest or march across the political spectrum [under Trump], people will have to think about whether or not their lives are going to be disrupted" by an arrest and possible charges.

Loadenthal adds that the J20 trials demonstrate that the government is willing to engage in "witch hunts" in order to quash political dissent, pointing to the extraordinary latitude of the prosecution's search for evidence against the protesters.

The state went so far as to issue a search warrant to Dreamhost, which hosted the protest's website, for data on anyone who communicated with the website via messages, photographs, or any other files. By the logic of the prosecution, simply sending emails to a protest site could open up a person to conspiracy charges. The state has also used attendance at public protest planning meetings (a First Amendment-protected activity) as the basis to demonstrate a conspiracy.

Maggie Ellinger-Locke, the co-chair of D.C. NLG's Demonstration Support Committee, agrees that the consequences of the trial could be far-reaching. "The unprecedented prosecution of hundreds of activists on serious felony charges has vast implications for the First Amendment and dissent generally in the U.S.," she tells Pacific Standard. "Should Assistant U.S. Attorney Kerkhoff succeed in prosecuting hundreds of people without individualized probable cause, prosecutors across the country will be emboldened to follow her playbook, further criminalizing dissent and abolishing due process."

Beyond the prosecution's argument, which implicates hundreds of people for the actions of only a few, some of the state's evidence has been highly dubious. Prosecutors have submitted video of a pre-protest meeting, video taken by Project Veritas, a widely discredited right-wing organization known for doctoring videos filmed in secret. During the 2016 presidential campaign, the pro-Trump Project Veritas released falsely edited videos that made it seem as if the organization Americans United for Change had paid people to protest at Trump rallies. Around the same time the videos were released, the Washington Post revealed that the Trump Foundation had given at least $10,000 to Project Veritas in 2015.

In addition, Unicorn Riot, an independent media collective, reports that the prosecution has submitted video evidence filmed by Canadian YouTuber and member of the so-called "alt-right" Lauren Southern. Southern, whose ideology has been described by the Southern Poverty Law Center as "tiptoe[ing] at the precipice of outright white nationalism," is also a vocal supporter of Trump. It's also of note that Southern was kettled during the protest on January 20th, but was allowed to leave without being arrested. Video evidence obtained from the Oath Keepers, a right-wing anti-government militia comprising former and active members of law enforcement and military veterans, is also part of the prosecution's arsenal. Ahead of January 20th, the Oath Keepers infiltrated protest groups and surreptitiously recorded video of planning meetings for Inauguration Day, according to a Daily Beast report.

The implications of the state's use of evidence supplied by Project Veritas, Southern, and the Oath Keepers are "anxiety-inducing" for Loadenthal, in part because as leftists organize, they often fear infiltration and violence from such groups. Further, Loadenthal argues that the inclusion of evidence from such biased and discredited groups lends undeserved legitimacy to their ideology and methods. "[The prosecution] embracing, or at least not denouncing vigilantism" is a major concern, Loadenthal says. "These groups just shouldn't be given a platform and the trappings of legitimacy" conferred by the courts.

Still, even if it seems unnerving that the government would use evidence supplied by vigilantes in a felony trial against leftists, it's also part of a larger, complicated alliance between law enforcement and the far right.

As Ellinger-Locke tells Pacific Standard, "That the state is willing to outsource roles to right-wing private actors for help in quelling dissent is not new, nor is it surprising." She notes that over the summer, Vincent Altiere, a D.C. police officer, was suspended after he was photographed wearing a shirt featuring white supremacist symbols while in a D.C. Superior Court. In June, Todd Kelsay, a member of the right-wing militia group called American Freedom Keepers, assisted police in Portland, Oregon, in arresting an anti-fascist protester. For Ellinger-Locke, this indicates a closer connection between the far right and the police than most in law enforcement care to acknowledge.

Recent Federal Bureau of Investigation probes into white supremacist and right-wing extremist groups have found that such organizations encourage members to join law enforcement agencies. Extremists will often conceal their dangerous, racist ideologies in order to get hired by law enforcement agencies—a subterfuge that doesn't stop them from violently discriminating against people of color once they get the job. An Intercept report on these investigations notes that the Oath Keepers are of particular concern because they recruit both active and former members of law enforcement. Ellinger-Locke calls the inclusion of evidence from Project Veritas and others in the prosecution against the J20 defendants "just more of the same harm we see [from police] every day."

Yet the prosecution of the J20 defendants is just one piece of the Trump administration's plan to stifle dissent. Under Trump, the FBI has begun an investigation into anti-fascism, a pan-leftist, global movement that uses a variety of tactics to expose fascists and racists, and to defend communities from them. FBI director Christopher Wray told the bureau's Homeland Security Committee in late November that, "While we're not investigating antifa as antifa—that's an ideology, and we don't investigate ideologies—we are investigating a number of what we would call anarchist-extremist[s], where we have properly predicated subjects of people who are motivated to commit violent criminal activity on kind of an antifa ideology." Indeed, during the first J20 trial, testimony from D.C. Police Commander Keith DeVille, who oversaw police operations during the inauguration, indicated that protesters were targeted before the march even began—in part because police had identified them as "anarchists."

Given the new national spotlight on anti-fascists and anarchists, it's no great surprise that the FBI would continue to target the far left. But the FBI's broad and vaguely defined investigation could also reach beyond far-leftists. As Newsweek's Michael Edison Hayden notes: "Wray's wording—'kind of an antifa ideology'—leaves considerable room for interpretation," sounding the alarm on the possible far-reaching implications of the government's crackdown on political protest.

Of course, America has seen extensive political witch hunts against leftist targets before.

The FBI has targeted "anarchist extremists" since the turn of the century. The FBI website has a "domestic terrorism" page dedicated to "anarchist extremists" and cites Bureau investigations into anarchist bombings in 1919 as one of its "first big cases." The investigation of the bombing campaign was one of the focal points of the First Red Scare, during which anarchists, communists, and people merely suspected of being radical leftists were surveilled and persecuted. The government also used the Red Scare to justify the deportation of real or suspected radical leftists. The Red Scare enjoyed a reprise during and after World War II, leading again to surveillance and persecution of immigrants under the Alien Registration Act of 1940. The Act was used not only against real or supposed communists, who typically came from Europe, but against Chinese, Mexican, and Japanese immigrants as well, even if they'd lived in the U.S. for decades.

As the FBI continues to stoke fears over leftist protest, members of white nationalist groups associated with actual violence continue to organize and demonstrate unhindered by the law. White nationalist Richard Spencer, who helped organize the Unite the Right rally where counter-protester Heather Heyer was killed, continues to tour university campuses. James Fields, who allegedly drove his car into a crowd of counter-protesters, killing Heyer and injuring dozens of others, was identified as a member of the white nationalist group Vanguard America (a group that rebranded as "Patriot Front" following Heyer's death). Fields is being tried in court, but other members of Vanguard America are not. In fact, the group is still openly recruiting Trump supporters and holding demonstrations in public. Meanwhile, black civil rights activists have been labeled "Black Identity Extremists" by the FBI, and J20 protestors may go to prison for up to 70 years.

While leftists face dystopian repression in the Trump era, the state is using evidence from the far-right against them in court. Given the severity of the sentences the J20 defendants face, anyone involved in social justice movements has good reason to be concerned.