WASHINGTON, D.C. — Questions over what role the left-wing radical group Antifa plays in American political life in 2017 have for months been confined to partisan public discourse.
But on Tuesday that conversation made the jump from the realm of pundit thought experiments to the toothier, more practical world of basic human rights. The group’s identity became a live legal issue in a criminal case that may dramatically shrink legal protections for public dissent across the United States.
Six people face decades in prison in the case, which is the first of several to spring out of a mass arrest of hundreds of people in Washington, D.C., on Inauguration Day. The first six to be tried include a freelance photojournalist and a registered nurse who told ThinkProgress she attended the inaugural protest to serve as a field medic in the event police opted to use force to quell the march.
Tuesday, prosecution witnesses sought to associate the six people sitting at the defense table with Antifa’s public branding. The government played the entirety of a 40-minute clip recorded by right-wing hoax artist James O’Keefe’s Project Veritas, showing organizers of one Inauguration Day protest discussing tactics and debating logistical questions. As the tape played, a D.C. cop who’d been undercover at the meeting — but had not recorded audio or video of his own, and would have only his paper notes from after the meeting to rely upon if it weren’t for O’Keefe’s organization — sat in the witness chair detailing his own work to investigate the march.
Asked about his actions on the day of the actual arrests, Officer Bryan Adelmeyer told jurors he “saw people throwing rocks at a gas station” who were “from the Black Bloc.” Judge Lynn Leibovitz cut Assistant U.S. Attorney Jennifer Kerkhoff’s questioning short immediately, told jurors to disregard Adelmeyer’s last answer, and sent the jury out of the room to have a stern, complicated chat with lawyers from both sides.
Leibovitz first reprimanded Kerkhoff for failing to get her witness in line with her earlier ruling about the term “Black Bloc,” an old identifier used by some within the anarchist movement who use property damage as a political tactic during mass demonstrations.
“It could be established by an expert, but your witness is throwing it in there because he feels like it,” Leibovitz said. “I’ve ruled a hundred times your witnesses can’t use it in their own observations.”
Immediately, defense counsel expanded the discussion to include “Antifa,” telling Leibovitz that just hearing the word in association with this case could prejudice jurors who have read media coverage of the group. The first thing that comes up on a Google search for “Antifa” is a wave of images and stories about willful, organized violence, attorney Sara Kropf noted — and the court did not include questions about juror attitudes toward the group in its selection process.
In effect, the courtroom was now litigating a political question. It’s a high-stakes version of a favorite game among Twitter users: handwringing over whether punching Nazis is good or bad. But where online arguments change little, the potential jailing of hundreds of people who dissented against their government because some people near them broke things could alter the country significantly.
Leibovitz didn’t entirely buy Kropf’s argument. “I don’t want to tell the jury that red is green and green is red,” she said, noting that Antifa may in fact be defined by street violence — and that it’s not her court’s place to adjudicate that question definitively.
“I don’t want to be telling them that what they may have heard is untrue. It may be true, outside this case,” Leibovitz said.
At the same time, Leibovitz said, the linguistics cut both ways here. “We’re supposed to not like fascism, so telling them ‘anti-fascist'” could end up currying a similarly unjust warm feeling toward the group among jurors, she said.
The argument ultimately devoured more than half an hour of the court’s time. It was at least the third such lengthy interruption of Adelmeyer’s testimony on Tuesday afternoon, prompting Leibovitz to apologize more than once to jurors for all the disruptions. With the panel back in their seats later in the day, the judge read off a wordy, somewhat academic instruction that lawyers from both sides had agreed was fair.
“You may have heard the word ‘Antifa’ in this trial. Antifa is short for anti-fascist or anti-fascism,” Leibovitz told the jury. “It and other terms like ‘anti-capitalism’ are descriptions of this event. In and of themselves, these words or terms are meant to describe the event, not as an indication that individuals themselves intended violence.”
That paragraph was the only explanation jurors got for why they’d been made to sit through close to two hours of stop-start process arguments. But the implication of the special instructions hammered out by the court about what “Antifa” does or does not mean was clear: Many people associate the group with willful lawbreaking, and this court takes no position on whether that’s correct or incorrect — just leave your bias at the door, somehow, people.
The question of what jurors associate with whom is central to the fate of these six defendants, and many of the hundreds who will follow in waves of further prosecutions stemming from the J20 mass-arrest.
Federal prosecutors are building a case that amounts to guilt by association. These six defendants may not be seen destroying property or cheering when others do, Kerkhoff told jurors in her opening statement last week. But they were, she said, willful and enthusiastic participants in an intentionally violent criminal act led by “a sea of black masks.”
Kerkhoff’s evocative description of the complex, fluid bubble of humanity present at various locations downtown on Inauguration Day figures to be the crux of the state’s case. But the lengthy dispute over the word “Antifa” and the judge’s view that “Black Bloc” is a verbal landmine illustrate how messy and difficult it will be for Kerkhoff’s team to pin these specific defendants back to that general “sea” of marchers.
With the government unable to show jurors video evidence of these six specific defendants breaking windows or sparring with cops — and sometimes unable to effectively show anything at all, with tech issues plaguing the video-heavy proceedings — their focus is instead on the mix of anarchists, anti-capitalists, and anti-fascists on hand that morning.
The defense’s task, meanwhile, is to show that their clients happened to get caught up in a police round-up because they were physically nearby when cops decided to forcibly shut things down.
Adelmeyer, the formerly undercover officer, faces cross-examination Wednesday morning. Leibovitz has yet to rule on whether or not defense lawyers may raise a 2013 incident where Adelmeyer was one of several officers accused of beating and falsely arresting a man named Keith Blakeney without legal justification. The city settled the case for an undisclosed amount roughly six weeks before the beginning of the current trial where Adelmeyer is an important witness.
Six separate defense teams will each get their own crack at the officer — and at needling through the state’s hazy argument that a conservative media maven’s “sting” video and dozens of different angles showing specific individuals breaking things downtown while others marched near them is sufficient evidence to put these six people in prison for decades.