The U.S. Attorney’s office in the District of Columbia—which has spent the last year and a half prosecuting people who protested the president’s inauguration—has been sanctioned by a judge for failing to hand over evidence to the defense, a major breach in court procedure that endangers the justice system itself.
On Jan. 20, 2017—aka J20—Washington, D.C.’s Metropolitan Police Department threw more than 70 “non-lethal” grenades, sometimes hitting innocent bystanders in the head, and emptied dozens of canisters of tear gas against protesters, before cordoning off more than 200 people and charging them all with a conspiracy to riot. Relying on a theory that anyone in black conspired to destroy property, the federal government charged more than 200 people with breaking just a few windows.
The government was forced to drop the charges against all but 58 of the defendants after losing the first case this January.
Elizabeth Lagesse, one of the 58 remaining defendants, argued in a motion that the government continued to press charges against her not because she committed any crime, but because she talked to the press—including Democracy in Crisis—and filed a civil suit against the police in partnership with the American Civil Liberties Union.
Assistant U.S. Attorney Jennifer Kerkhoff is leading the case against the protesters.
“Ms. Kerkhoff’s May 11 email also highlights the government’s ongoing fixation with Ms. Lagesse’s media presence and her pending lawsuit—protected conduct that has no relevance to the case,” Lagesse’s motion argues, making reference to an email from the prosecutor, which, it argues, “is filled with derisive asides about Ms. Lagesse’s public statements, which go as far as accusing Ms. Lagesse of spreading ‘misinformation.’”
In that email cited in Lagesse’s motion, Kerkhoff seems to be following Trump’s playbook—”misinformation” is her more legalistic version of “fake news.” (The main detective in the case, Greggory Pemberton, regularly calls me “Fake News Woods.”)
This prosecution has engaged with the seediest parts of the alt-right. In this case, the prosecution relied heavily on a video surreptitiously filmed by Project Veritas, the far-right outfit that brought down ACORN and regularly tries to “sting” media outlets like The Washington Post. Project Veritas is notorious for selectively editing and publishing video, but in this case, the organization looks downright honest in comparison with the U.S. government.
The Project Veritas video shows a group of people planning a march and mentioning an “anti-capitalist, anti-fascist” action. This provides the basis for the conspiracy-to-riot charges—which otherwise hinge on wearing black. It has been central to the government’s case against the protesters, because they claim it proves that defendants planned to destroy property and shut the city down.
But in court last week, it came out that the government did not give the defense attorneys all of the video—three minutes were cut off. During those three minutes, the Veritas operative said: “I don’t think they know anything.” There was also evidence that the Jan. 8, 2017, planning meeting included a session on how to de-escalate a violent situation.
The prosecution further failed to disclose that it had received 69 other recordings from Project Veritas. One of the trial groups had an interview with the operative who said that he didn’t “think anyone was planning violence especially.”
“There were a lot of things that were captured by Veritas. We gave them what was relevant in the case,” said Ahmed Baset, an assistant U.S. Attorney working the case with Kerkhoff, to the judge—as if it is up to the prosecution to determine what is relevant.
The proceedings also revealed that Project Veritas visited the FBI before the inauguration to talk about the protest—and the government revealed nothing about that meeting to the defense, either. While court still did not dismiss all of the charges against all of the defendants, it did sanction Kerkhoff and dismiss the conspiracy charges.
“The evidence concerning the conspiracy and the conspiracy charge … because the government did not disclose those videos and allow proper investigation, I’m sanctioning the government from proceeding on that count or on that theory,” the judge said.
For Dylan Petrohilos, who had been tagged as a key conspirator by the feds, that meant his charges would be dropped altogether, since he was not even arrested at the protest—but was picked up months later when police officers raided his home and took an Antifa flag and copies of The Nation magazine as “evidence” of the conspiracy.
For others, despite the dropped conspiracy charges, the weight of a long prosecution and the potential of a long sentence were still there to bludgeon them. As one defendant, Ella Fassler, tweeted: “It’s starting to look like my co-defendants and I will only be facing up to (about) 10-20 years in prison now.”
After testifying in last week’s trial, one officer named William Chatman wore a shirt with a slogan that condoned police brutality in the courthouse. It said: “Police Brutality…Or Doing What Their Parents Should Have!”
It is a clear message.
This prosecution bears all the hallmarks of Trump’s sense of justice. At virtually the same time all of this was going down in D.C. Superior Court, across town, Trump was underlining the capricious nature of justice in his regime with his pardon of Dinesh D’Souza. Instead of going through the DOJ’s Office of the Pardon Attorney, Trump seems to randomly pick friends, political allies or celebrities. His last big pardon was of former sheriff Joe Arpaio, known for his racism and his hatred of the media.
In ancient Greek political thought, the mark of tyranny was the desire to help one’s friends and to harm one’s enemies—and both the pardon of D’Souza and the prosecution of the J20 protesters are motivated by such a desire.
Baynard Woods is a reporter for the Real News Network and the founder of Democracy in Crisis, a project of alternative newspapers across the country. Email: firstname.lastname@example.org. Twitter: @baynardwoods.