Acquittals in guilt-by-association Trump protester trial cast doubt on subsequent prosecutions

Prosecutors appear ready to soldier on, despite going 0-for-42 in the first round.

A bystander covers their face as police launch pepper spray at demonstrators on Inauguration Day 2017. CREDIT: AP Photo/John Minchillo
A bystander covers their face as police launch pepper spray at demonstrators on Inauguration Day 2017. CREDIT: AP Photo/John Minchillo

Handed a sweeping defeat by jurors on Thursday, federal prosecutors offered no sign of surrender in the felony prosecutions of nearly 200 more people arrested in connection with an Inauguration Day protest where some marchers smashed windows and brawled with cops.

The first six defendants, acquitted on all charges Thursday after a month-long trial and 10-month investigation, are representative of the majority of those indicted.

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Prosecutors can show they attended the march and stuck with it even after windows were smashed. They cannot show the individuals participated directly in property destruction or that they clashed with cops. They nonetheless seek to hold scores of defendants personally liable for the destruction under the theory that showing up dressed in black at the specified time and location, and then willfully sticking with the march throughout, constitutes conspiracy to riot.

The full rejection of that argument by District of Columbia jurors Thursday could give prosecutors reason to drop cases against similarly situated defendants, and focus their resources on the stronger cases against people who broke windows and people who they allege planned the march specifically to conceal rioting. In a statement on the verdict from the U.S. Attorney’s Office for D.C., though, the Department of Justice seemed to signal it is ready to proceed with all pending cases.

“The criminal justice process ensures that every defendant is judged based on his or her personal conduct and intent. We appreciate the jury’s close examination of the individual conduct and intent of each defendant during this trial and respect its verdict,” the statement said. “In the remaining pending cases, we look forward to the same rigorous review for each defendant.”

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Subsequent cases will likely rely on much of the same evidence used in this first round. One key video, furnished by the right-wing huckster James O’Keefe, shows a discussion at a large meeting of protest planners from early January. The conversations, recorded about two weeks before Inauguration Day, come from a church basement where many different organizations and individuals sought to coordinate various protests under the “DisruptJ20” banner. They are key to the government’s conspiracy claims against individual defendants.

The case also relied heavily on footage from police body cameras, private security cameras, and livestreams from news media present at the scene. Those images will likely feature just as prominently in subsequent cases.

The big change will be in how prosecutors seek to demonstrate the specific culpability of a new crop of individuals. One of the six defendants acquitted Thursday had streamed live video to the web throughout the march, allowing prosecutors to lean on his own footage. For the others, they clipped together moments from numerous video sources which they alleged captured the individual at various points.

The judge did not allow the main police witness to specifically identify the defendant in those freeze-frames and highlights, instead requiring Det. Gregg Pemberton to stop at naming specific objects and clothing he had used to identify a consistent individual in his review of the footage. Pemberton, whose personal animus toward Black Lives Matter protesters and anti-Trump groups would likely become an issue again in subsequent trials, has spent nearly an entire year of full-time work detailed to the U.S. Attorney’s Office for this case.

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If prosecutors decide to forge ahead on cases against similar defendants despite Thursday’s acquittals, the trials in the case will stretch far into 2018.

But the American Civil Liberties Union of D.C. — which is suing the District separately over police conduct on Inauguration Day — expressed hope the verdicts would dissuade the U.S. Attorney’s Office from continued attempts at redefining the line between lawful protest activity and criminality.

“Today’s verdict reaffirms two central constitutional principles of our democracy: first, that dissent is not a crime, and second, that our justice system does not permit guilt by association,” ACLU-DC attorney Scott Michelman said in a statement.

The Metropolitan Police Department has cultivated a reputation for handling First Amendment demonstrations gracefully and peacefully. It operates under rules and laws that require officers to try to identify and arrest specific lawbreakers without mass-arresting all marchers present when someone breaks the law.

But its well-earned reputation has faltered when police are confronted with the organized anti-capitalist tactics common to anarchist political organizations. Such groups once limited their shows of force to major demonstrations outside World Bank meetings, but they are seeing a broader resurgence in response to the Trump movement’s fascist tendencies. The precise politics underlying the DisruptJ20 cluster of protests were a live legal issue in the trial that ended Thursday.

The confrontation between Trumpism and the ideas common among so-called “antifa” protesters tend to cast a dark light on heavy-handed policing, that most obvious harbinger of authoritarianism. MPD officers stand accused of ugly, violent reprisals against Inauguration Day arrestees, including the use of “rape as punishment” against some detainees represented in the ACLU-DC lawsuit. The police are accused of failing to delineate between property smashers and those who simply marched nearby in black — effectively the same category error that jurors decided prosecutors had made in acquitting the first six defendants this week.

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“No one should have to fear arrest or prosecution for coming to the nation’s capital to express opinions peacefully, no matter what those opinions may be,” Michelman said. “We hope that the U.S. Attorney’s Office gets the message and moves quickly to drop all remaining changes against peaceful demonstrators.”