Above Photo: Police officers push back demonstrators as they protest against President Donald Trump in Washington, D.C., on Jan. 20, 2017.
It’s been a bleak year for the 194 protesters, medics, and journalists facing multiple felony charges stemming from their arrest surrounding Donald Trump’s presidential inauguration on January 20, 2017. Vilified by much of the mainstream press and largely ignored by the liberal “Resistance” movement, the J20 defendants — as they’re collectively known — have huddled around each other and their tight network of supporters. On Friday, a jury began deliberations in the first J20 trial, of six defendants, on a raft of counts; a verdict could come as soon as Monday. Last Wednesday, however, there was a rare glimmer of hope: Before closing arguments, Judge Lynn Leibovitz of the D.C. Superior Court threw out the “inciting a riot” charge, a felony with a maximum ten year sentence.
Despite throwing out the incitement charges, Leibovitz declined to acquit the defendants on seven other charges, including five counts of felony property destruction, misdemeanor rioting, and misdemeanor conspiracy to riot. Those charges together carry a maximum sentence of 50 years in prison.
“It’s been a long month for these six defendants and their supporters,” said Sam Menefee-Libey of the Dead City Legal Posse, a group that organizes support and advocates for the J20 defendants. “We’re nervous, obviously, but we’re resolute. And the feeling of solidarity amongst everyone is powerful.”
What the acquittal means for the remaining 188 defendants is not yet clear. Prosecutors may have stronger evidence of incitement against other protesters, especially those who planned the action or who issued directions during the march. (Some of the organizers will go on trial early next year.) But this first failure is indicative of a larger problem with the government’s case: a lack of individualized evidence against the majority of those arrested.
Leibovitz’s unusual decision to grant the defense’s motion for a judgment of acquittal is a testament to the paltriness of the prosecution’s case for “incitement.” Such motions are practically a formality in criminal proceedings; judges almost always defer to the jury to decide on the sufficiency of the facts. In this case, Leibovitz concluded that “no reasonable juror” could find the prosecution’s evidence sufficient to establish the charge of incitement. “None of [the defendants] engaged in conduct that amounted to urging others,” Leibovitz said.
The prosecution’s case is built around hours upon hours of video captured by police body cameras, reporters, undercover cops, confiscated cellphones, and far-right groups, such as the media provocateurs of Project Veritas and the Oath Keepers militia. One of the defendants, independent journalist Alexei Wood, had his live-stream of the event used as evidence against himself and his co-defendants. In his video, Wood can be heard cheering while others graffiti walls and break windows. On Wednesday, Leibovitz decided that cheering isn’t enough to establish incitement. “Personal enthusiasm for the destruction,” Leibovitz said, “is qualitatively different from urging others to destroy.”
Only a tiny fraction of those arrested on January 20 could have personally engaged in acts of property destruction. The prosecution doesn’t dispute this fact. “We don’t believe the evidence is going to show that any of these six individuals personally took that crowbar or that hammer and hit the limo or personally bashed those windows of that Starbucks in,” Assistant U.S. Attorney Jennifer Kerkhoff told the jury in her opening statement on November 20. “You don’t personally have to be the one that breaks the window to be guilty of rioting.”
Though it sometimes gets lost amid breathless reporting on masked anarchists, shattered glass, and burning limos, the real story of J20 is one of the state attempting to imprison almost two hundred people for criminal acts committed by a handful. The prosecution’s novel theory of group liability — in which anyone in proximity to criminal behavior during a protest can be held liable for those crimes — is a grave threat to the First Amendment, the right to assemble, and the right to protest, according to civil rights advocates. “The prosecution’s case is utterly bizarre and essentially rests on both guilt by association and criminalization of dissent,” said Chip Gibbons, the policy and legislative counsel for Defending Rights and Dissent.
Unable to marshal sufficient evidence against each individual arrested on January 20, the government has opted instead to criminalize the group as whole. “It’s the group that’s the danger,” Kerkhoff, the prosecutor, explained at a hearing in July, “the group that’s criminal.” In so doing, the government has criminalized the very things that constitute the march as a march: aesthetic unity, chanting anti-capitalist slogans, and moving together through the street — all of which are protected First Amendment activity.
The prosecution, of course, doesn’t see it that way. “We’ve been here for the last several weeks because these six defendants and their co-conspirators agreed to destroy your city,” said Assistant U.S. Attorney Rizwan Qureshi at the trial. “And now they’re hiding behind the First Amendment.”
Despite being a positive development for the defendants in question, Leibovitz’s decision to dismiss the incitement charge leaves the state’s theory of liability largely intact. The prosecution has argued that by wearing black, meeting at a predefined location, moving as a cohesive unit, and remaining in the streets after property destruction began, the entire group aided and abetted the tiny fraction who smashed windows and turned over trash bins. In his closing argument Thursday, Qureshi likened the black bloc — the protest tactic used on January 20 — to a driver who waits outside while the “muscle” commits a robbery. “That’s exactly what this sea of black was,” he intoned. “It was the getaway car.”
“The J20 cases are unique in that many of the core issues are not centered around factual disputes,” Gibbons, the counsel for Defending Rights and Dissent, told The Intercept. The prosecution and defense agree on the essential facts: Property damage took place on January 20 and only a few people — none of whom stood trial last week — actually broke anything. “The dispute,” Gibbons said, “comes down to what the First Amendment does or doesn’t protect.”
In a jury trial, it’s up to judges to rule on the law and juries to rule on facts. But Leibovitz has so far declined to take up the defense’s constitutional challenges. In denying a defense motion to dismiss the charges in September, Leibovitz declared that she is constrained by the Supreme Court’s 1968 ruling in United States v. Matthews, which upheld the constitutionality of the D.C. Riot statute. So long as a defendant “willfully associates” with an “assemblage” causing or threatening tumult and violence, the court found in the Matthews case, they can be charged with rioting. (That ruling, I reported elsewhere, was based on a racially inflected distinction between rioting and legitimate protest.)
When, on Wednesday, defense attorney Jamie Heine reminded Leibovitz that wearing black and marching with a group of anarchists are both protected First Amendment activity, Leibovitz replied, with exasperation, “I’m really asking you to focus in on the facts, not just to state constitutional principles.” In a heated exchange over jury instructions, Leibovitz told the defense, not incorrectly, that it’s not the jury’s responsibility to “decide what the First Amendment allows and what it prohibits.” She added, “What they must decide is whether the defendants have committed the offenses charged.”
Meanwhile, many of the facts on which the prosecution bases its case are themselves absurd. “What do you need a medic with gauze for?” Qureshi asked of Brittne Lawson, an oncology nurse from Pittsburgh who attended the protest as a medic. “I thought this was a protest.” While organized medical volunteers have attended protests from the Arab Spring, to Occupy Wall Street, to Standing Rock, to Charlottesville, Qureshi saw something sinister in Lawson’s bag of medical supplies, which were entered into evidence.
“She wasn’t prepared for a march or a protest. She was prepared for war,” said Qureshi. “She was going to be there to help members who are in black, who get pepper-sprayed, who get hurt because they’re provoking the police, to mend them and then get them up on their way so they can continue their destruction.” (The nurses’ code of ethics binds registered nurses to serve all their patients regardless of the unique circumstances and maintains that treatment is not tantamount to endorsement.)
In an effort to impugn photojournalist Alexei Wood’s intentions at the march, Qureshi also questioned why a self-declared journalist would be knowledgeable about protest policing. “How is he an up-and-coming journalist and he’s talking about a kettle?” he asked, with folksy incredulity. “I didn’t know what a kettle was before this case. Did you?” (The admission was remarkable from a prosecutor representing the District of Columbia, which has settled numerous expensive class action lawsuits against protesters illegally kettled by its police department.)
The defense, too, is constrained by the Matthews precedent, trapped in the bizarro world of the government’s theory of group liability. Defense attorneys have spoken to the core First Amendment principles at stake in the case, but they’ve also spent time in court introducing doubt about whether their clients willfully associated with the so-called riot. Did they know there were windows breaking? Did they stay with the group the whole time? Did they wear black for tactical or purely aesthetic reasons? It is a sound legal strategy, given the circumstances, and thanks to the meagerness of the state’s evidence, Chip Gibbons of Defending Rights and Dissent told me, it may be enough to exonerate their clients.
Photo: Michael Nigro/Sipa USA/AP
One can’t help feeling that all this quibbling is beside the point. By allowing this prosecution to proceed, Leibovitz has implied that it’s acceptable for the police to indiscriminately mass arrest protesters without individualized probable cause, then proceed to prosecute them in connection with criminal activity they themselves did not commit.
In a sense, the defendants have already been sentenced, to months if not years of waiting and wondering, shuttling back and forth between their homes and Washington for hearings. They’ve been sentenced to sleepless nights and anxious days, to threats of violence and doxing from far-right extremists. Some have lost jobs and strained relationships.
Brittne Lawson, the nurse, was forced to quit her job at University of Pittsburgh Medical Center to deal with her charges. Rosa Roncales, a Henrico County, Virginia. firefighter, was reassigned to desk duty. Elizabeth Lagesse, a former graduate student, has put her life on hold and moved to D.C. to mitigate the costs of travel from her former home in Baltimore. At a press conference in November, Lagesse said that whether or not the prosecution’s case stands up in court, a “punishment has already been delivered.” It was, she said, “the stress, the disruption in their lives.” These consequences are “doing a lot of the job of suppressing speech, of suppressing dissent, of contaminating these people.”
Even if the jury somehow found the prosecution’s evidence sufficient, there may be a remaining source of hope for the defendants. Though jurors will be instructed to rule narrowly on the facts — not on the consequences the defendants may face or the constitutionality of the law — they’re ultimately empowered to decide on the basis of their values. When a jury encounters a plainly unjust law, it is their right to nullify the verdict, whether or not the facts of the case meet the offense charged.
“It’s a travesty this case ever made it to a jury,” said Menefee-Libey of the DC Legal Posse. “For now, all we can do is keep up the fight, no matter what happens. We’ll keep fighting until all of us are free.”