Prosecutors hid mountains of evidence in trial of Trump inauguration protesters

A dramatic failure to honor the basic principles of criminal law could put a sudden end to the long-suffering First Amendment case.

Police coral marchers on Inauguration Day 2017 in Washington, D.C. (CREDIT: Emily Molli/NurPhoto via Getty Images)
Police coral marchers on Inauguration Day 2017 in Washington, D.C. (CREDIT: Emily Molli/NurPhoto via Getty Images)

Federal prosecutors hid scores of videos from the hundreds of anti-Trump demonstrators they charged with serious felonies in an unprecedented crackdown on Inauguration Day protests, defense lawyers alleged in an overnight filing Wednesday.

The new accusations exacerbate an existing crisis for prosecutors, who already admitted last week to hiding one 55-minute video and misrepresented edits they made to another video. That initial screw-up, known to lawyers as a Brady violation, already jeopardized the case.

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But that initial, single Brady violation is actually part of a much broader pattern of evidence-concealing, the lawyers now say. The government has concealed another 69 separate recordings — three audio files and 66 videos — of planning meetings for the Inauguration protests known as #DisruptJ20, defense lawyers say in the motion.

The recordings, which were made by employees of the right-wing Project Veritas, purportedly show defendants discussing de-escalation tactics and their intent not to initiate physical violence with anyone unless they are attacked first. The prosecutor had previously told the judge that no recordings existed from the meetings where the newly revealed audio and videos were made.

“The Government has succeeded in misleading over 200 co-defendants, their attorneys, and three Honorable Superior Court Judges to believe there were only seven videos in its possession from Project Veritas,” attorney Andrew Clarke wrote in the filing. “Only by Order of the Court and more recently, its own disclosures, we now know the truth, that the Government withheld 69 additional recordings by Project Veritas and altered others.”

For more than a year, the government has relied on undercover recordings made by James O’Keefe’s Project Veritas team to support its case against participants in the march. After initially charging more than 200 people who were rounded up in a mass arrest that day with felonies, and seeing the first six people tried acquitted on all counts in December, Assistant U.S. Attorney Jennifer Kerkhoff dropped cases against all but 59 of the accused.

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This core group, Kerkhoff suggested, were a hardened central cluster within the broader J20 march. Where jurors in the earlier trial had acquitted people who showed up and marched and stood by as a handful of others smashed shop windows or clashed with cops who fired pepper spray into the crowd, these 59 people played more direct, clear-cut roles in a conspiracy to riot.

The undisclosed videos contradict that effort, Clarke wrote in the Wednesday night filing. “As the government admitted in its May 30, 2018 email to the Court, many of these videos…involved discussions of de-escalation tactics,” Clarke wrote. “[I]t is disturbing that the government is taking the position that videos showing co-defendants teaching other codefendants how not to engage in violent protest is irrelevant to a case about violent protests.”

The filing notes multiple instances in earlier hearings where Kerkhoff made clear to the judge that she understood her obligation to produce all videos and audio recordings from all the meetings she is using in her case. In one instance she flatly states that no recordings exist from the meetings where, according to the defense filing, at least 35 of the newly-uncovered recordings were made.

When one additional video and some undisclosed edits were revealed to the court last week, Judge Morin ruled Kerkhoff had cheated defendants of potentially exculpatory evidence. But that relatively narrow Brady violation was unlikely to persuade the court to dismiss the charges outright, defense lawyers and J20 supporters told ThinkProgress, especially since the government has nearly 18 months of staff time and court expenses tied up in trying these cases.

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The lawyers had not expected Chief Judge Robert Morin to find last week’s omissions sufficient to dismiss the charges, but hoped he would bar the videos from being used at trial.

But now, with the number of concealed recordings at nearly 70 and the contents of those recordings allegedly harmful to the prosecution’s case, the chances of either a mistrial or a dismissal seem brighter.

If this is how these massively expensive and conceptually unprecedented felony prosecutions end, the enormous questions the cases raise about the limitations of the right to protest would remain unanswered.

The U.S. Attorney’s Office has sought to make an example of the J20 marchers. Their protest rapidly escalated that Friday, testing the bounds of the Washington, D.C. police department’s longstanding commitment to upholding First Amendment protest activity even when it technically violates traffic law or lacks required permits.

The Metropolitan Police have more experience managing such spontaneous demonstrations than any other law enforcement agency in the country. The agency has earned a positive reputation among civil rights lawyers and protest organizers for their general restraint.

But that reputation cracked significantly as hundreds of anti-Trump marchers dressed mostly in black walked down 13th Street toward downtown D.C. the morning of the inauguration ceremony, as ThinkProgress reported at the time.

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Once a couple of people from the large crowd smashed windows at a Starbucks and a Bank of America, police commanders rapidly deemed the entire assembly a riot and gave officers permission to deploy high-powered pepper spray cannons. No officer gave a verbal order to disperse, as department guidelines for protests that turn riotous require. Soon, hundreds were rounded up and “kettled” into a small area by riot police, again in violation of department rules.

While a handful of the marchers threw objects and swung poles at officers, videos also show numerous examples of police turning violent on people who are complying with their efforts to herd the crowd. A civil lawsuit alleges that some officers sexually assaulted some protesters after their arrests as a form of punishment. Videos capture police repeatedly firing more pepper spray and pepper-ball grenades into the crowd even after they are kettled into a tight space with their hands raised.

The high-profile chaos prompted an unprecedented response. Where police and prosecutors have managed to identify specific perpetrators of violence in similar situations in the past here, this time they decided to make a mass arrest and prosecute everyone with the same set of felonies. Lawyers and civil rights scholars called it an act of collective punishment and willful overcharging designed to intimidate innocent protesters into taking plea deals. The case became a flashpoint not only for pro- and anti-Trump sentiment but for concern about core civil liberties principles — concerns that only grew as the year went on and unruly street protests elsewhere drew a similarly violent police response.

Prominent Trump supporters called for a violent police crackdown against anyone who protested the new president’s ceremony. Lawmakers around the country proposed new legal restrictions on protest — and even, in some cases, new laws making it legal for motorists to run down protesters who block roads. In that context, seven months before anti-fascist counterprotesters and heavily armed neo-Nazis fought a deadly street battle in Charlottesville, Virginia, the fate of the J20 cases was the lightning rod for concerns about Trump’s election leading to increasing authoritarianism.

The acquittals in December, and Kerkhoff’s decision to drop the majority of the cases afterward, took the temperature down somewhat. But the remaining 59 trials would still test the same constitutional questions.

Now, though, it seems that all that heat and light could yield a simpler lesson: Don’t rely on James O’Keefe, and don’t trust a prosecutor when they say they’re telling the truth.