Criminal Justice
How a federal prosecutor, the D.C. police and right-wing provocateur James O’keefe conspired—and failed—to railroad protesters in Washington
Fake News Has Its Day in Court
around the corner from the federal courthouse in downtown Washington where media crews have spent the past year recording the many comings and goings of President Donald Trump’s indicted associates, another, far less heralded legal struggle unfolded with arguably greater ramifications for American democracy than anything special counsel Robert Mueller discovers.
This was the plight of the 234 people rounded up and jailed during street protests on Trump’s Inauguration Day last year. All, including some reporters, medics and legal observers, were charged with felony rioting and conspiracy, and a few with criminal vandalism, counts that made them theoretically subject to consecutive prison sentences totaling 60 years or more. A private study later concluded that police were overwhelmed by sporadic violence, with some officers abandoning procedures and resorting to indiscriminate pepper spray and roundups, which “contributed to a large number of First Amendment demonstrators arrested who were not directly involved in destructive or violent behavior.”
Twenty-one defendants quickly pleaded guilty to rioting charges. But even as the Justice Department vigorously—critics say improperly—pursued guilty verdicts in the remaining 200-plus cases, its strategies began falling apart, some over questions of how the government gathered and suppressed exculpatory evidence; others over spurious charges that linked all the demonstrators to an alleged conspiracy by a few to vandalize property and attack police.
Jurors were skeptical: After a first group of defendants was found not guilty in December last year, the government dropped charges against more than 150 others, admitting it could not prove they intended to smash windows and damage cars. A second set of trials ended in acquittals or hung juries. And in the end, on July 6, over 18 months after the mass arrests on January 20, 2017, federal prosecutors abruptly dropped the remaining 39 cases, closing a legal episode that raised troubling questions about government overreach.
Now, like so many other important issues squeezed out of the national limelight by Trump administration controversies, the case of the
J20 protesters (as they came to be known, after the inauguration date) has been largely forgotten. Except, of course, by those whose futures hung in the balance over the past year and a half. Though free without having to pay bail during the 18-month ordeal, defendants had to put their lives on hold as they battled the full might of the government. For many, convictions on even reduced misdemeanor charges could have scuttled bank loans, professional licenses and security clearances—all for exercising their First Amendment right to “peaceably… assemble, and to petition the Government for a redress of grievances.”
“The government’s prosecution,” says attorney Philip Andonian, who represented one of the defendants, “should scare the daylights out of anyone who values dissent.” Especially, he and other lawyers in the trials say, when revelations of a secret partnership between the government and right-wing spies is taken into account.
What memories remain of Inauguration Day tend to center on the tirades of Trump and his then-spokesman Sean Spicer at media reports slighting the size of the crowds—all unforgettably memorialized on Saturday Night Live by Alec Baldwin and Melissa Mccarthy. Not only did Trump and Spicer ignore the downtown protests, which included spates of violence and street battles between police and antifa activists, but the president later tweeted an uncharacteristically nice comment about the massive women’s marches the next day as a “hallmark of democracy.”
In D.C. Superior Court, however, the machinery of the Justice Department was preparing to grind up the J20 defendants in conspiracy charges.
The unusual chain of events had started with the strategy the police chose to handle the marchers, mostly fired-up students and anti-trump millennials who had gotten a permit for their demo. When the event turned ugly with bouts of “anti-capitalist” vandalism and street fights with cops, the D.C. police chose to “kettle,” or surround, all the participants, no matter their individual behavior, and haul them away. Then came the U.S. attorney for the District of Columbia, the local arm of the Justice Department that serves as the city’s district attorney, who charged them all with felony rioting and conspiracy.
Arrested protesters are generally slapped with a misdemeanor and a fine and sent home. So, too, were the J20 released on personal recognizance. But the torqued-up conspiracy charges leveled at them shocked not just the defendants and their lawyers, but criminal law veterans outside the case, who searched for an explanation.
Justin Dillon, a onetime Justice Department attorney, pointed a finger at Jennifer Kerkhoff, a former colleague assigned as lead prosecutor. Channing Phillips, a career Justice Department prosecutor and Obama administration holdover, was Kerkhoff ’s boss when the charges were filed. But there were “subsequent decision points along the way,” says American Civil Liberties Union senior attorney Scott Michelman, that indicated a harder hand on the tiller. In September 2017, Jessie Liu, who worked on Trump’s transition team, took over the 300-strong U.S. attorney’s office and supervision of the cases. (Justice Department spokesman Bill Miller told Newsweek that neither Liu nor Kerkhoff would have any comment on any aspects of the prosecution. Phillips also declined to comment.)
Writing for the influential legal blog Above the Law, Dillon said the government pursued a prosecutorial theory that was “preposterous from the start—that simply by walking down the street and chanting, then failing to withdraw when given a dispersal order, the protesters were joining a conspiracy to riot and engage in the destruction of property.”
Also remarkable was the “massive amount of resources” Kerkhoff marshaled “to prosecute fairly minor offenses,” says Sara Kropf, attorney for an oncology nurse acquitted of all charges in the first case to go to trial.
“The government’s prosecution should scare the daylights out of anyone who values dissent.”
First, she tells Newsweek, there was “a very experienced prosecutor assigned to the case full-time. Second, there was an experienced homicide detective not only working full-time but earning overtime for a year. And then there were all the technology resources” the government used to organize massive amounts of surveillance video and audio tapes. “Any case of that size and with that many defendants certainly had to be approved at very high levels within the U.S. attorney’s office,” Kropf opines. If so, Kerkhoff, long a lightning rod for her clashes with opposing counsels, was the perfect choice for an administration led by a president with an antipathy to protesters.
Her team was discovered breaking a cardinal rule: the obligation of prosecutors to disclose evidence to the defense that might exonerate the accused. Established in a momentous 1963 Supreme Court decision, the so-called Brady rule has been a bedrock of constitutional law for half a century—even as it’s been frequently violated by prosecutors, including in death-sentence cases. “Brady violations are one of the worst types of prosecutorial misconduct,” says Michelman. “Not only do you not know the thing you’re supposed to know as a defense lawyer and as a defendant; you don’t know that you don’t know it.”
Kerkhoff’s misdeed was failing to tell the J20 defense lawyers about almost 70 secret videotapes of protest planning meetings surreptitiously filmed by operatives dispatched by James O’keefe, the right-wing provocateur with a long history of producing selectively edited undercover videos designed to embarrass liberals and the mainstream media. The government had submitted only one video into
evidence, which it did not identify as originating with O’keefe, and which, it would turn out, had been edited to delete exculpatory evidence.
Suspicious about its provenance, one of the defendants, Elizabeth Lagesse, a chemical engineering PH.D. student at Johns Hopkins University, started digging deeper. “I was researching everything related to the cases and started looking into whether other videos related to the case came from [O’keefe’s] Project Veritas and trying to determine whether some of them had been edited,” she tells Newsweek. “I was seeing more in their videos than I was seeing in our evidence.”
Then she discovered that O’keefe had recently published a book, American Pravda: My Fight for Truth in the Era of Fake News, which included a gleeful chapter about infiltrating the protesters camp and providing videos to the D.C. police and FBI, which welcomed them “with open arms.”
The defense lawyers quickly jumped on the issue. “There were thousands of files produced by the government. Not a single one of them was labeled ‘Project Veritas,’” defense lawyer Rebecca Legrand complained to Superior Court judge Robert Morin. “We asked repeatedly: ‘Tell us who made these so we can contact them.…’ We didn’t know, because they hid it.”
In April, defense lawyers forced the government to produce more tapes. One included an undercover D.C. police agent telling O’keefe’s cameraman that activists at one protest planning meeting didn’t seem to be aware of any violence in the works.
Morin, normally a calm jurist, was not amused. The suppression of evidence “was intentional,” he scolded
one of the prosecutors. “Your office represented there was only one video.” The felony conspiracy charges were tossed. (Kerkhoff later filed a motion with Morin asking him to reconsider his findings against her.)
The video trick was a major misstep by the government, but the cases were littered with prosecutorial pratfalls. In the first trial, in December, Kerkhoff ’s associate Rizwan Qureshi argued to the jury that the defendants conspired “to destroy your city, and now they are hiding behind the First Amendment.” In another courtroom, Kerkhoff advised jurors that they could ignore the judge’s instructions about the presumption of innocence in a trial.
“I just need to say, ladies and gentlemen,” the judge interrupted, “you must follow each and every word of my instructions on reasonable doubt.”
Defense lawyers also raised suspicions about the objectivity of the lead detective in the cases, Gregg Pemberton, a top official in the D.C. police union, whose national office had endorsed Trump for president. Pemberton, who led a raid on one activist’s home, had railed against “disingenuous activists’” and Black Lives Matter on Twitter and told the conservative One America News Network that he hoped Trump’s presidency would “put a stop to” anti-police protests.” Contacted by Newsweek, Pemberton denied all accusations of bias.
Kerkhoff also declined an interview to discuss the many issues raised by the government’s tactics that deeply shook some of the defendants. Kropf, who represented oncology nurse Britten Lawson, said her client “was extremely concerned about the effect of a conviction on her nursing career.” A felony is grounds for the revocation of her license.
For others, the prosecution was an eye-opener. Lagesse, the chemical engineering student who merely showed up on January 20 to voice her objection to Trump, says she was “flabbergasted to learn how much power prosecutors have and how little accountability that they have.” She is now planning to go to law school.
The question remains why the government took such an aggressive path. None of the defense lawyers consulted by Newsweek had an answer. One Trump Justice Department transition official speculated that overcharging the demonstrators “would have come from the top.” But neither he nor other close observers of the proceedings offered any evidence. In the government’s announcement that it was dropping the remaining 39 cases, Liu noted that 21 people had admitted guilt and said “the evidence shows that a riot occurred on January 20, 2017.”
Barring any unexpected revelations, the origins of the government’s overreaching, and ultimately futile, strategy and tactics may be lost to history. More immediate legal issues— from the administration’s separation of immigrant families to its assault on the integrity of the FBI and Robert Mueller to the replacement of Justice Kennedy on the Supreme Court— have crowded out the government’s conduct in the J20 trials.
But the defense lawyers haven’t forgotten. “They played it fast and loose with the truth from the beginning,” says Andonian. Kerkhoff’s suppression of exculpatory evidence in particular galls him and the other 200-plus public defenders, probono attorneys and private counsel engaged in the cases, he says. Some lawyers are mulling taking up Kerkhoff ’s conduct with the D.C. Bar Association. Others hope against hope that the Trump Justice Department’s Office of Professional Responsibility will review her. What’s clear is that the government’s actions have produced recruits for the next generation of civil liberty attorneys.
“I’ve gotten hooked on this as a cause,” says former defendant and aspiring lawyer Lagesse. “I’m not quite optimistic enough to think that I could totally reinvent the system, but I would like to make some improvements around the edges— create some accountability for prosecutors and increase the ability for people to defend themselves.”
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