Elizabeth Lagesse and Mike Webermann planned to mark the Inauguration of Donald J. Trump with a day of protest in Washington. They lived together in Baltimore, mostly to accommodate Elizabeth’s employment as a graduate researcher and developer at John Hopkins University. That position was ending, though, which opened the door for new opportunities. Mike was the director of public education and grassroots activism at an animal rights organization, but he hoped to start his own project, which could be done from anywhere. The couple hoped to relocate to the West Coast not long after Inauguration Day. The morning of January 20th, 2017, Elizabeth and Mike put on some black clothes and rode down to Washington, D.C., unaware that this day would upend their lives for the next 18 months.
Together, Elizabeth and Mike had moderate experience protesting. Mike grew up in the D.C. area and, as a teenager, participated in the antiwar movement against the American invasion of Iraq in 2002. In later years, his advocacy centered more around environmental policy. Back in her home state of California, Elizabeth had participated in direct actions around public health issues and expanding immigrant rights, often in the context of academia. Formative parts of their romantic courtship had involved joining together to protest. Early on, they joined the Black Lives Matter movement following the police killing of Freddie Gray. Protesting was part of their being. So heading out to protest on January 20th seemed natural to Elizabeth and Mike. Trump embodied a direct threat to their community and to every social justice cause they cared about. They felt it was important for the world to see his administration resisted from Day One. And if showing up accomplished nothing else, then at the very least, their bodies would contribute to a crowd bound to draw attention away from Trump.
There was potential for record-breaking crowds on Inauguration Day, but Washington D.C. could handle it. Despite being smaller than many American urban areas, Washington is the mecca for protestors. Every year, people of all creeds, ages, and backgrounds descend upon the District of Columbia to exercise their First Amendment rights. Between 2014 and 2016, the city saw at least 2,436 demonstrations, a number that does not include protests for which it did not issue permits. This would mean an average of at least two daily protests for 1,095 consecutive days—except that almost half of these took place in 2016 alone. Though firm data is not yet available, the tally for 2017 might very well surpass these numbers.
This intensive protest schedule has created a well-oiled permitting and policing machine. Despite the complications that can arise from protesting in a jurisdiction with oversight between the Metropolitan Police Department (MPD), Capitol Police, National Park Police, and over 30 additional police agencies, local activist organizations have extensive experience in coordinating protests and permits. Protest organizers routinely warn the police force on duty of how much civil disobedience can be expected. In the same vein, seasoned activists understand what behaviors and circumstances risk arrest. This coordinated dance rarely leaves either side surprised.
Soon after Election Day, a horizontally-led collective of radicals announced the launch of Disrupt J20. They described the project as “a series of massive direct actions that will shut down the Inauguration ceremonies and any related celebrations and the city itself.” The collective had strong anarchist leanings, but pledged “respect for a diversity of tactics and the plans of other groups.” In that spirit, the collective lent support to planning efforts by affinity groups and individuals oriented towards social justice, whose protests plans varied in degree of confrontation.
In the weeks preceding the Inauguration, MPD learned a vast amount of information regarding the J20 demonstrations. The Department is well known for monitoring social media pages, surveilling activists, and infiltrating planning sessions with undercover officers. Moreover, much of Disrupt J20’s activities were public. The collective led massive planning meetings, maintained a sophisticated website, and shared schedules and rally points. The group also openly held fundraisers and press conferences.
MPD was aware of the possibility for unprecedented crowds, and reinforced its ranks by borrowing around 3,200 police officers from other law enforcement agencies. It had routes for the permitted marches, and some information about the direct actions scheduled around entry checkpoints. It was aware that, typical of large protests in the District, there would be street medics and journalists with identifying markers. MPD knew, from the Disrupt J20 agenda and planning meetings, that the protest contingents would vary in focus, size, and degree of subversiveness. It also knew that there would be a handful of non-permitted marches—code for black blocs.
A black bloc is a tactic rather than any fixed ideological group. It describes the practice of demonstrating in a group anonymized by its all-black attire, often accompanied by face-coverings. While black blocs are fluid and can be joined by anyone, the groups most partial to the tactic tend to be anarchist coalitions like Antifa (named for its anti-fascist politics) and other groups skeptical of private property and state authority.
Mike had reassured Elizabeth that arrests for protesting were rare in D.C. If the situation became uncomfortable, they would have plenty of opportunities to leave. Mike had seen MPD give ample warning if arrests were imminent. He could even think of many instances where activists expected, and even hoped for, arrests that never materialized. The city’s police force had become more cautious after 2002, the year that Police Chief Charles Ramsey and his assistant Peter Newsham allowed the illegal arrests of almost 400 individuals near Pershing Park during demonstrations against the World Bank. The protesters responded by suing the city in civil court for MPD’s violation of their constitutional rights. The backlash from that chapter in MPD history was still fresh: Only in the spring of 2016 was the last outstanding lawsuit finally settled. In the end, the city paid nearly $14 million in attorney fees and payouts.
The civil lawsuits filed by the protesters after the Pershing Park arrests led to crucial reforms in how local law enforcement managed First Amendment assemblies in the District. Notably, MPD guidelines no longer authorized officers to “kettle” protesters (a practice of encircling and detaining protestors abruptly). Instead, officers were required to give protesters substantial warnings, time, and space to disperse and avoid arrest. The reforms also required MPD to make an effort to identify individuals rather than detaining indiscriminate groups. In the intervening 14 years since Pershing Square, protest-related arrests and criminal charges had become an anomaly in Washington. Nevertheless, the Disrupt J20 organizers cautioned protesters to exercise their best judgment.
The morning of January 20th, 2017, was gray and cold—the menace of rain and tense energy charged the thick air. In their black clothing, Elizabeth and Mike melted seamlessly into the black bloc. Minutes before their arrival downtown, some individuals had popped out of the march and smashed some store windows nearby. Police officers on site observed the window-smashers, but took no steps to intervene or pursue the responsible individuals. But then, just as Elizabeth and Mike began marching in earnest, the police proceeded to kettle the black bloc.
It happened fast.
Dozens of MPD officers aggressively funneled the protest off-route and encircled everyone, purposely blocking all individuals from exiting the march. With the protesters trapped in a ring of riot gear, the officers enthusiastically discharged pepper spray and sting balls at the protestors, like Silly String at a birthday party. Elizabeth and Mike had been in the protest for precisely nine minutes when MPD arrested them, along with 232 other protesters and bystanders.
If the J20 protesters in the black bloc do not recall hearing amplified dispersal orders, it’s because none were ever given. One MPD commander would admit as much while testifying in court later. The protest was not “static,” he claimed, so the mandated warnings—giving protestors the opportunity to leave and avoid arrest—would not have been effective.
But the so-called exception cited by the commander simply does not exist. Failure to give warnings because a protest is not sufficiently “static” is neither allowed by the First Amendment Rights and Police Standards Act of 2004, nor by the Department’s own standard operating procedures for First Amendment assemblies. But this hiccup did not stop MPD from pressing forward. In a press conference held the afternoon of January 20th, now-Interim Chief of Police Peter Newsham announced his intent to charge each protester with felony rioting. This was worrisome, but there was yet hope that things would blow over once the cameras were off the Inauguration. Newsham’s threats were only as good as a prosecutor’s willingness to execute them.
Most chief prosecutors in the country are elected by voters (with the exception of a few jurisdictions in which the governor or the state Supreme Court appoints them). But Washington is a unique jurisdiction. Because it sits on the District of Columbia, a federal plot of land, the city does not enjoy the same degree of independence and congressional representation as the 50 states. This lack of complete self-governance and autonomy extends to the local criminal system. While the District of Columbia has its own penal code, the majority of its criminal statutes—including all adult felonies—are enforced by the federal prosecutors in the U.S. Attorney’s Office for the District of Columbia, instead of an elected district attorney. On the day of Elizabeth’s and Mike’s arrest, the U.S. Attorney in charge of that office was Channing D. Phillips, an Obama appointee.
The defense bar waited breathlessly to see what would come of the J20 arrests. Certainly, the federal prosecutors could have laughed Newsham’s charges out of the room. Prosecutors of all stripes—federal, state, or local—share a nearly unfettered discretion to pursue charges or let people go. More than that, they benefit from an extraordinary degree of deference, such that their decisions are seldom subject to review or challenge. Together, these norms imbue them with immense power. Prosecutors can press charges to send a message, even where this threatens the constitutional rights of law-abiding citizens. They can decide to pursue the gravest of charges every time, and prioritize convictions and wins over fairness and justice. But prosecutors can also choose erring on the side of leniency and render unjust statutes obsolete by refusing to enforce them. Or by adopting a culture of transparency in what they choose to charge and how they negotiate pleas. Or by refusing cases tainted by sloppy police practices.
In this case, charging hundreds of individuals with felonies for a few smashed windows would have been unusual, if not objectively excessive. The numbers also created some impracticality to pursuing each individual this aggressively. And in the background of all this lingered the high probability that the mass arrests were no more legal than the Pershing Park arrests.
Nevertheless, the federal prosecutors opted to indict 217 of the arrestees with a litany of charges: conspiring to riot, inciting a riot, and actually rioting, along with several counts of property destruction. For some defendants, the charges carried over 70 years of prison time.
Due to the sheer number of defendants, the evidence available for each case was voluminous. The prosecution had obtained testimony from nearby witnesses confirming that masked individuals had smashed some windows, and that individuals were seen changing out of black clothes. It had footage of Disrupt J20 meetings in which marches were discussed, and video of the actual black bloc on Inauguration Day. In one video, a photojournalist livestreamed the events while commenting excitedly. The prosecution also had the many items seized: 188 personal cellphones to which the police held on for weeks; the backpacks of street medics full of medical supplies; a black flag and other anti-fascist symbols seized from the raid of a Disrupt J20 activist’s home days after the march, as well as the computer on which he’d kept notes related to the protest planning; and whatever social media data Facebook, Twitter, and Google had handed over to law enforcement.
But quantity is not the same as quality. The prosecution had set out to prove the existence of a conspiracy, but nothing in the many hours of confiscated footage and hundreds of electronic devices showed the protesters entering an advance agreement to engage in criminal activity, or affirmatively encouraging others to do so. The officers who witnessed the window-smashing had neither chased nor identified the individuals responsible at the time. Since then, no other conclusive evidence had materialized to prove that any of the arrested protesters had personally taken a crow bar to any window on January 20th.
Taken together, the seized evidence amounted to little more than banal objects and innocuous activity. Without identifying information, the only tangible justification for the mass arrest was an assembly of people exercising their free speech rights in the vicinity of a crime scene. In an independent report assessing the police’s conduct on Inauguration Day, the Police Foundation appeared skeptical that MPD could show probable cause for each defendant’s arrest. The prosecution lacked conclusive proof that any specific defendant had either rioted and destroyed property, or conspired to do so. Its case was thin.
Despite the paucity of evidence, the prosecution aggressively pursued its case. In June 2017, five days before a status hearing scheduled for Elizabeth’s case, the U.S. Attorney’s Office approached Elizabeth with a deal that would allow both her and Mike to move on with their lives, while guaranteeing the prosecutor two wins. Her charges would be reduced to a misdemeanor with no jail time and a $500 fine if, and only if, Elizabeth convinced Mike to accept the same deal by the day of the status hearing. Otherwise, the deal was off the table.
Deals like the one offered to Elizabeth and Mike are common. More than 95 percent of all criminal cases are pleaded out. Prosecutors can play defendants off each other, offering pleas and sweet incentives in exchange for milder consequences, so long as the defendant offers something in return: a guilty plea, information to resolve facts unknown to the prosecution, testimony to take down other defendants. Pleas reflect a reluctance to go to trial. Part of the story is that it’s very risky for the prosecutor chasing high conviction numbers to lay out its evidence and actually convince a judge or jury that a conviction is warranted. Juries can be unpredictable, particularly when the defendants look like the J20 protesters: mostly white and mostly young. Trial is costly in both money and time for all parties involved.
The J20 case demonstrates how the risks of trial create a perverse incentive for prosecutors. In their eagerness to avoid going to trial, prosecutors are motivated to threaten extravagantly high sentences, and then frame smaller pleas as the reasonable choice. Plea deals like the one offered to Elizabeth reveal just how insignificant the prosecutor actually finds the gravity of the crime or defendant’s involvement, but that makes no difference: no regulations or professional ethics rules seriously restrict prosecutors from pursuing excessive punishment.
These prosecutorial theatrics have real negative effects on the lives of defendants, even ones as comparatively privileged as the J20 defendants. Elizabeth and Mike were forced to indefinitely suspend their plans to move to California and to relocate to the pricier Washington, D.C., where their case was ongoing. Some friends were aware of their arrest, but awaiting federal trial under the threat of decades of prison time was not exactly a relatable experience. Elizabeth and Mike found it difficult to explain why they had been arrested in the first place, where things stood with their legal case, and to convey just how much stress the limbo caused.
Of course, dozens of other defendants were in their situation. But unlike civil class actions, where plaintiffs are encouraged to share information with one another, facing prosecution in the criminal system is an isolating experience. Although the 217 protesters were arrested together and indicted based on the same incident, their cases were independent of one another. Each defendant had their own lawyer, whose job it was to protect the interests of their individual client. In this environment, it’s hard to know who to trust. Most lawyers admonished their clients to avoid discussing case strategy with other J20 defendants.
But the J20 defendants took a different approach, resisting the atomized advice of their individual lawyers. In a show of solidarity, they circulated a pledge to resist the prosecutor’s charges, and to not harm co-defendants if one chose to take a plea deal. This commitment was purely a matter of honor, but it generally held up. More than 20 individuals would eventually take a plea, but none testified against the other defendants. Elizabeth and Mike rejected the prosecution’s deal out of principle. To eke a win out of the remaining 194 defendants, the prosecution would have to try their cases before a jury.
The first trial dates were set for December 2017 and June 2018. In court, the prosecution focused on the defendants’ conduct to argue that the cases did not implicate the First Amendment. “This is DC. We know protests. We know dissent. They can be powerful. They can be beautiful. They can effect change,” said Assistant U.S. Attorney Jennifer Kerkhoff to the jury. “What you will see and hear in this case, this isn’t a protest.”
Lenese Herbert, a law professor at Howard University, says that this approach—framing a given civil action as something other than a “protest” in a bid to circumvent the protections afforded by the right to free speech—is a relatively new trend, although it has been applied to Black neighborhoods for much longer. Attacking protest per se is not a winning strategy. “Protesting is as American as apple pie,” Herbert says. One could imagine a universe in which the constitutional protections afforded by the First Amendment (which protects speech) and the Fourth Amendment (which protects individuals from government searches and seizures) are combined to create a sort of super-right to protest. But as the J20 charges demonstrate, this is not the case at all.
In the end, Elizabeth and Mike were wise to hold out against the prosecution’s proferred plea deal. In unusual fashion, the two judges presiding over the trials issued decisions that would severely limit the prosecution’s ability to secure wins against the remaining defendants, including Elizabeth and Mike. Before the first trial even concluded, Judge Leibovitz dismissed the felony charge of riot incitement for lacking legal grounds. In the second trial, it came to light that the prosecution had improperly withheld evidence that could have helped the defendants. The prosecution had withheld from the defendants that footage of a Disrupt J20 planning meeting had been secretly filmed and fed to the police by far-right group Project Veritas. Worse yet, the prosecutors had not disclosed that several minutes of the video were edited out. The footage cut contained commentary by the person filming, which could have helped the defendants’ argument that they were not part of any pre-planned effort to riot.
As punishment for these underhanded dealings by the prosecution, Judge Morin not only dismissed the conspiracy charge, but also prohibited the prosecution from pursuing this charge in any future related cases. The first jury acquitted all six defendants in December 2017. Six months later, a second jury acquitted another five defendants. Its hands tied by Judge Morin’s order to drop the conspiracy charges, the U.S. Attorney’s Office dismissed every remaining case.
Despite the validation from Judges Leibovitz and Morin—confirming that the prosecution had pursued charges it could not support, and that it had actively withheld exculpatory information from the defense—the federal prosecutors faced virtually no consequences for risking decades of the J20 defendants’ lives. In fact, after the trials concluded, Assistant U.S. Attorney Kerkhoff was promoted to lead the office’s Felony Major Crimes division. In addition to complete autonomy in how they charge people, prosecutors enjoy near-absolute immunity for their choices. External checks on prosecutorial power are weak.
The unchecked behavior of the prosecutors in the J20 trials is indicative of a larger problem. In her book Arbitrary Justice, Angela J. Davis, who teaches law at American University, writes that a 2003 study “discovered that judges found prosecutorial misconduct in over two thousand cases, in which they dismissed charges, reversed convictions, or reduced sentences. In hundreds of additional cases, judges believed that the prosecutorial behavior was inappropriate but affirmed the convictions under the harmless error doctrine.” State bars, the other potential arbiter of ethical conduct among lawyers, are even less effective. Since 1970, state authorities have disciplined only a few dozen prosecutors.
The overall lack of consequences makes it difficult to accurately assess the prevalence of the worst misconduct—practices like prosecutions without probable cause, using abusive charging and plea bargaining tactics, concealing exculpatory evidence, or introducing evidence that is false or obtained impermissibly. “Ironically,” Davis says, “all of those killings of unarmed young black men—although some women too—and the failure of prosecutors to hold the police accountable has served to educate the public about the power of prosecutors and how important it is to hold them accountable.”
Thankfully, there are some available means of increasing accountability. Davis credits movements like Black Lives Matter, and the increasing interest in criminal justice issues taken by civil rights organizations with broader missions, for improving public education on the subject. This raised consciousness among voters has allowed the Left to pursue accountability and reforms through local prosecutor elections, with some success. While career prosecutors cannot be voted out of office, changes at the top of the office can have a real impact in the direction of the prosecutor’s office. When given the chance, voters have responded positively to the option of a less aggressive prosecution strategy. In Philadelphia, for example, progressives helped elect former civil rights defense attorney Larry Krasner. Importantly, Krasner promised that he would “decline to prosecute cases forwarded by the police that lack support by sufficient and legally obtained evidence.”
There may also be opportunities for local jurisdictions controlled by liberal majorities to experiment with reforms in how the prosecution and defense interact with each other. Some advocates have pushed for “open file” reform, the idea that prosecutors should turn over a defendant’s whole file as part of the discovery process. Alternatively, the judiciary could be reformed to become more active in the fact-finding process—for instance, through the creation of a specialized court official entrusted with unrestricted access to the prosecutor’s complete defendant file. Whatever precise reforms we settle for, a more transparent system could better protect our constitutional rights under the First and Fourth Amendments, which in turn would yield more just outcomes for everyone.
Unfortunately, the democratic path to reform faces even greater hurdles at the federal level. Each of the 93 U.S. Attorneys in charge of the federal prosecutors around the country is appointed by the President of the United States, typically with the recommendation of the local Senator, and serves at the pleasure of the President. Their offices are part of the Department of Justice and typically answer to the Attorney General, who himself is a Presidential appointee. Unlike the chiefs of their offices, career federal prosecutors enjoy many of the strong protections extended to federal employees and can serve for decades, spanning several administrations.
Hypothetically, concerned citizens could complain about their local federal prosecutors to their congressional representatives. But as Davis explains, prosecutors do most of their work behind closed doors. This makes it difficult for ordinary voters to access the information that would allow them to understand the true extent of prosecutorial misbehavior, let alone have a real say in who leads the local federal office. In other words, federal prosecutors are even less accountable to the jurisdictions they represent than their state and local counterparts. This setup prevents us from demanding accountability from federal prosecutors — a hindrance felt even more starkly in the District of Columbia. A progressive President could make a real difference, particularly if she could be pressured into nominating not only a progressive Attorney General, but also a progressive advocate to lead each U.S. Attorney Office. Although most of the prosecutions occur at the state and local level, the Department of Justice’s centralized nature could help revolutionize the nature of prosecution nationally.
But even in the most hopeful of scenarios, including a progressive administration, the J20 trials are not the last time that the right to free speech will be threatened. It is also probably not the last time the Left will face a hyper-aggressive prosecution of what was, and should continue to be, constitutionally protected activity. D.C.’s federal prosecutors failed to harshly punish the J20 protesters this time around, but their attempt should be a warning shot. If the Left is serious about preserving its right to organize against reactionary forces in the streets, now is the time to give real thought to how much discretion and how little accountability federal prosecutors benefit from. Collectively, we are all too complacent about this reality.
In June 2017, Elizabeth became a plaintiff in a civil lawsuit filed by the ACLU. The complaint alleges that the District of Columbia, Chief Newsham, and several MPD officers violated the First and Fourth Amendment, and that their conduct amounted to assault and false imprisonment. The lawsuit does not name the prosecutors in her case. Elizabeth hopes that it will give the J20 defendants a chance to see some accountability, and ensure that what she went through does not happen to anyone else. The J20 protesters were lucky, even though the Inauguration Day cases derailed their lives for the first 18 months of Trump’s administration. They can rest easier now, knowing the criminal case is closed once and for all, even as the ACLU civil suit goes on. Still, it would be naïve to conclude that the U.S. Attorney’s Office walked away empty-handed. For at least 234 people who showed up on January 20th, protesting may never feel quite the same again. “It really does chill speech when you’re afraid that what you say, and the details of what you wear, and how you look, and which march you’re at, and how you act [will be used against you],” says Elizabeth. “These are all things that were criminalized in this case.”
This article originally appeared in Issue 16 of Current Affairs. Get your copy today in our online store.
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