The federal prosecutor who has pursued hundreds of Trump inauguration protesters on unprecedented felony riot charges for over a year lied to the court about edits her team made to a key video filmed by right-wing operative James O’Keefe’s organization, a judge found Wednesday.
The ruling does not guarantee that the remaining defendants in the case will go free. Judge Robert Morin agreed with defense lawyers that Assistant U.S. Attorney Jennifer Kerkhoff had illegally suppressed evidence, but declined to make a final ruling on their motion to dismiss all charges in light of the government’s cheating. That motion governs only one of several clusters of defendants who may yet land in prison for marching alongside people who broke windows and threw rocks.
The full video captures an undercover police officer saying of organizers from the Industrial Workers of the World (IWW), “I don’t think they know anything about any of the upper echelon stuff.” But that moment was edited out of the video before prosecutors turned it over to defense counsel in an earlier case, and was only discovered after the court ordered the government to hand over the full, unedited files.
Withholding a police witness’s in-the-moment statement that organizers had no knowledge of the thing they’re being accused of planning is a clear violation of the laws governing evidence-sharing. Kerkhoff had previously told the court that no potentially exculpatory evidence had been withheld because the videos were only altered to conceal the identities of the police officer and the O’Keefe operative. Defense counsel has asked Morin to censure Kerkhoff for that false claim.
The lawyers are also asking Morin to toss out all the charges, arguing that the withholding of helpful evidence over such a long period of time fundamentally undermines their fair trial rights. If Morin does decide the felony cases can proceed despite Kerkhoff’s violation of evidence rules codified in the 1963 Supreme Court decision Brady v Maryland, the lawyers say he should at the very least bar prosecutors from using any of the O’Keefe videos at trial.
The edited video is the central piece of evidence in an unusual, chilling legal argument that already failed spectacularly once. An undercover operative from O’Keefe’s Project Veritas had infiltrated a planning meeting ahead of the inauguration protests and secretly filmed parts of a raucous discussion of tactics and plans for various anti-Trump marches. The video, corroborated by Metropolitan Police Department officer Brian Adelmeyer based on his attendance at the meeting on an undercover assignment, showed various people discussing various activities loosely coordinated under the banner #DisruptJ20.
After a handful of marchers smashed shop windows and scrapped with riot police, MPD opted to “kettle” hundreds of people and conduct a mass arrest. More than 200 people were subsequently charged with a long list of felonies as the government sought to hold every attendee collectively guilty for the property-smashers’ actions.
The O’Keefe video was the key piece of evidence that everyone who participated in the march was party to a willful conspiracy to destroy property and stage a riot. It failed to persuade jurors in December, when Kerkhoff got skunked in the first group trial stemming from the mass arrests. Those acquittals prompted her office to drop all but 59 of the cases, supposedly narrowing the pool to people with a stronger connection to actual violent acts or planning that anticipated such violence.
The first trial was a wacky affair, laden with awkward tech glitches and haunted by ghosts both partisan and ideological. The key investigator working to analyze hundreds of hours of video from the protest and arrests is a Trump fan with a history of bashing Black Lives Matter and other street protest movements. Police witnesses struggled to justify some uses of force and the decision to shoot pepper spray into crowds of detained people awaiting arrest. Lawyers and judges have argued about what “antifa” and “black bloc” mean almost as much as they’ve argued about the First Amendment implications of the collective-guilt prosecution of protesters.
For all that to end with a whimper, after millions of dollars in prosecutor spending and nearly 18 months of endless disruption to the allegedly-criminal marchers’ lives, would be shocking.
There’s grim irony in Kerkhoff getting tripped up by her own team’s editing of a video provided by James O’Keefe, whose career is built on deceptively editing video clips to smear progressive political organizations and other perceived enemies of the political right.
But while O’Keefe has become a laughingstock after attempted stings involving a house boat full of sex toys and an attempt at bugging a government office, the J20 trials offer a reminder of how dangerous his operation can be. Democrats joined Republicans in destroying the longstanding community organizing stalwart ACORN in 2009 based on an O’Keefe scam, ripping up one of the most effective grassroots organizations focused on the legal and economic interests of low-income families and people of color. Even when everybody knows he’s lying, as in the case of the “sting” that put him on the map a decade ago, his work can still prompt devastating outcomes if people in power don’t stand up for the truth of the matter.
In 2009, then-Speaker Nancy Pelosi (D-CA) decided to stand with O’Keefe instead of with the truth. Where Judge Morin chooses to stand in 2018 remains to be seen. The judge has promised a final ruling on the motion to dismiss the J20 charges in the week after Memorial Day.