Barr was talking about defendants who had open cases pending, brought against them by prosecutors who work for the Justice Department. By the time he spoke, the U.S. attorney’s office in Portland had charged 22 people with federal crimes ranging from refusal to obey a lawful order to assault on a federal officer to arson.
In the days after Barr testified, the federal government agreed with Oregon Gov. Kate Brown (D) to withdraw the law enforcement agents it had sent en masse to Portland (though President Trump later said federal forces would stay). But the entire episode, and Barr’s attempt to use a hearing before Congress as if it were the opening statement in a trial, was just the latest example of a trend that started the day Trump took office: His administration’s attempt to throw the full force of the federal government at crushing dissent and punishing protesters.
Federal prosecutions, as opposed to state or local ones, typically have a higher conviction rate. More than 80 percent of people who go to trial in federal court lose, and once they do, they face stricter sentencing laws and guidelines. Federal court districts are usually much larger than municipal boundaries, so the jury pools pull in more rural, White voters than most local juries would in progressive, majority-Black cities: Federal jury pools are “more oriented toward law and order,” said Justin Brown, a Maryland defense attorney who works on state and federal cases (and whose most famous client was Adnan Syed, whose case was featured on the podcast “Serial” and in an HBO series).
This structure forces guilty pleas, even of the innocent. In 2018, 90 percent of people charged with federal crimes pleaded guilty and did not risk trial. This is all simply how federal court works — and it provides an incentive to send federal agents into cities that Trump sees as his enemies.
In the District of Columbia — where Trump first used federal agents to attack protesters in June and where many crimes that would ordinarily be prosecuted by district attorneys are federal because of the city’s unusual constitutional status — there were “470 individuals arrested and processed for curfew violations, riot-related burglary and other riot-related events” between May 30 and July 17, 2020. More than 100 of these charges were “felony riot.”
In his remarks to Congress, Barr consistently referred to rioters, with variations such as “violent rioters and anarchists.” In hammering on this word, Barr, like Trump, is not only justifying continued federal law enforcement action around the country — he is also setting the stage for federal rioting-related charges.
The federal riot statute is grounded in the Constitution’s interstate commerce clause, so it potentially ensnares anyone who “uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television” with the intent to “organize, promote, encourage, participate in, or carry on a riot,” among other acts. This may explain the stress authorities have placed on “outside agitators,” during protests this summer. The phrase not only allows local politicians to save face; it also gets local prosecutors off the hook. If someone crossed state lines and is arrested at an alleged riot, then they can be federally prosecuted. Since phones trigger federal jurisdiction, just texting about meeting up for a protest may be enough to warrant charges.
That phone call or text message also leads to a new charge: Conspiracy to riot.
“A conspiracy charge is the favorite tool of the federal prosecutor. Whenever possible they charge a conspiracy,” said Brown, the Maryland defense lawyer. “It’s the easiest type of crime to prove. All you have to prove is there’s an agreement to do something illegal; you don’t have to prove the crime was consummated.”
Conspiracy charges can be based on the very sense of solidarity and mutual aid that inspires people to protest injustice in the first place. Arrests for conspiracy aim to destroy that solidarity and turn defendants — or, in 2020, their data — against one another.
“They’re trying to turn organized dissent into conspiracy,” said Jason Flores-Williams, a criminal and civil rights attorney.
When federal authorities leaked to Fox News in early July that they had arrested the “ringleader” in the toppling of the Andrew Jackson statue in Lafayette Square near the White House, they were setting up a larger conspiracy case by further alleging he had ties to “antifa.” “They were very organized,” an anonymous source told Fox, setting the stage for a further round of arrests. If the man was the ringleader of an organized group, then there was a conspiracy, and everyone who was there can be charged with the most serious of the crimes.
This is not just speculation: It is exactly how the very first act of Trump’s Justice Department played out.
More than 200 people were arrested during a “riot” in Washington on the day of Trump’s inauguration, Jan. 20, 2017 — often called the J20 case, because of the date.
In contrast to the Women’s March the next day, the protests on Inauguration Day were confrontational, and the air was filled with tear-gas, the sound of breaking glass and flashbang grenades. Eventually, an “anti-capitalist, anti-fascist” black bloc group was corralled — along with reporters and bystanders — into a “kettle” at 12th and L Streets NW.
Several windows had been broken, and nearly identical charges of rioting, conspiracy to riot and inciting riot were filed against all the defendants. The government tried to hold each responsible for any property damage committed by anyone else in the group. The government was attempting to say anyone who was at a protest could be held responsible for everything that happened there.
Using cellphones seized from the arrestees, social media posts, surveillance body camera footage and videos provided by the right-wing propaganda group Project Veritas, detectives began to make further arrests.
Four months later, police raided the home of a man named Dylan Petrohilos who was not even at the inauguration protest. They took an Antifa flag, a banner that read “Kiss Capitalism Goodbye” and copies of the Nation and In These Times, left-wing magazines, as evidence of conspiracy. They alleged he had appeared in the Project Veritas video and on a podcast discussing the protest.
Because of the nature of conspiracy charges, Petrohilos did not have to even be present at the protest to be charged with conspiring with the demonstrators. Authorities also charged reporter Aaron Cantú nearly five months after the protest with acts allegedly committed by the people he was covering. The substance of the allegations against him were that he wore black, moved with the group and, at some point, got rid of a backpack.
Cantú was not the only reporter charged, either. Charges were dropped against most of the reporters who were arrested long before the case went to court. But the judge in the J20 case set a chilling precedent for allowing prosecutors to claim members of the media were promoting or encouraging a riot by covering it. “He played a role that furthered the purposes both of the conspiracy and of the riot itself, which was to advertise it, to broadcast it, to live-stream it such that others could be recruited to join in,” U.S. District Judge Lynn Leibovitz said of livestreamer Alexei Wood, who was also arrested. “And persons hearing his live stream could be recruited, were being kept abreast and informed of the events.”
Even as the government pored over the intimate details in defendants’ phones and argued that wearing masks furthered conspiracy, prosecutors argued their witnesses had to remain anonymous to protect them from being doxed. They wanted an expert witness on Antifa, undercover police officers and even the Project Veritas operative who provided a secret video to testify anonymously, undermining the entire idea of open court where defendants are able to face their accusers. The judge rejected this motion, but a Trump-appointed judge might not. A similar situation happened in Portland where Department of Homeland Security officials have argued that federal police had removed their name tags because anarchists had “doxed members of federal law enforcement."
The aggressive treatment of protesters and reporters attracted little attention in 2017, because hearings and filings, even the most chilling ones, are too slow to compete with the Trumpian spectacle machine. In retrospect, it serves as a dark warning for the future. If Trump wins the election in November, this time around promises to be far worse. Trump has had three years to appoint judges to the federal bench, and prosecutors will feel pressure from Barr and Trump to win convictions that justify the presence of troops in the first place.
But there is another lesson we can draw from the J20 case.
Ultimately, the only group of defendants from the inauguration protests whose cases even went to a jury were found not guilty. During the second trial, conspiracy charges against 129 defendants were dismissed with prejudice. There were still more than 50 defendants facing charges not tied to conspiracy, reporter Cantú included, but the prosecutor Jennifer Kerkhoff was sanctioned when it came out that she had failed to provide potentially exculpatory evidence to the defense and finally dropped all of the charges in July 2018.
That evidence — prosecutors failed to provide the entire Project Veritas video to the defendants, and they did not disclose the existence of 69 more videos — was discovered by defendant Elizabeth Lagesse, who had moved to D.C. from Baltimore to prepare for the case and devoted herself to studying the details almost obsessively, attending every hearing.
Just as in drug or gun prosecutions, the federal system relies on the isolation of defendants and harsh penalties to force pleas deals and cooperation. “They already have great institutional resources, they have great power, all the decisions about when and how to bring charges,” Lagesse told me. “And they try to keep defendants from talking to each other, from pooling their resources, from working together to stay alive.”
But in the J20 case, that cooperation was vital. “It’s really important because if people had felt like they were alone, most people would have taken plea deals before we were able to get this result,” she said. “Because it took months of work to find what eventually got the cases dropped.”
Yes, Trump and Barr want to transform the solidarity motivating the protests around the country into conspiracy charges. But maybe that same solidarity can also help beat them — and make us question the everyday injustices of the federal system.