As prosecutors have ramped up charges against hundreds of people arrested for rioting during President Trump’s inauguration, many of the defendants are digging in, vowing not to cooperate with the government or take a plea deal.
Only two of the 200-plus people arrested during the inauguration protests had pleaded guilty by the time a grand jury returned an indictment that featured a string of new felony charges in late April. In the weeks that followed, six more defendants struck deals with the government.
For many others, though, the higher stakes have deepened their resolve to fight the charges. More than half of the 207 remaining defendants are now committed to a “Points of Unity” statement, pledging not to cooperate, to reject plea deals that would hurt other defendants, and to share resources and information, according to Kris Hermes, an activist providing legal support and handling media for defendants committed to the pledge. The number of defendants who have signed on has ticked up since the new indictment came down, Hermes said.
“I thought the initial riot charge with a possibility of 10 years [in prison] was ridiculous and now the additional charges just seems utterly ridiculous,” Alexei Wood, a defendant committed to the unity pledge, told BuzzFeed News. “If they’re trying to intimidate me at all with these humongous charges, it’s had the opposite effect on me, it just makes the whole thing seem asinine.”
The severity of the latest indictment is expected to test the strength of that pledge long-term, however. The defendants at a minimum face eight charges for rioting, conspiracy, and property destruction — most were previously charged with just one count of felony rioting — and are staring down maximum prison sentences on each of the charges that, if combined, stretch several decades.
One defense lawyer involved, who would only speak on condition of anonymity, said the unity pledge could complicate efforts by lawyers to negotiate with the government or develop a trial strategy that is most beneficial to their client. Although the defendants were arrested en masse during the protests in Washington, DC, on Jan. 20, the government’s evidence is likely to differ depending on the defendant.
“It’s one thing in April of 2017 in the comfort of your apartment or house or condo to tap out statements saying we're in solidarity,” the lawyer said. “In March of 2018, that same person who either signed the statement or wrote the statement or joined the statement is going to face eight felonies with that pressure.”
"The consequence of the government’s unprecedented, non-individualized theory of criminal liability is predictable: an indictment littered with fatal irremediable defects."
For now, defense lawyers are focused on getting the charges tossed out on broader legal grounds. If successful, these efforts would head off any future tension over conflicting trial strategies. First Amendment lawyers, the defense bar, and anti-Trump activists nationwide see the case as an important test of how the new administration responds to dissent.
“For most of us, our clients weren’t at the meetings, didn’t get involved in any acts of vandalism, there’s no video of them doing anything other than being out there protesting Trump,” said another defense lawyer who would only speak anonymously, citing concerns that prosecutors would target his client if he were quoted by name. “There’s no evidence of them doing anything other than exercising their First Amendment rights in a nonviolent way. For some of them now, charged with 11 counts, it’s mind-boggling.”
At the end of May, a group of 30 defendants filed a joint motion to dismiss the indictment. One of the defendants involved has since pleaded guilty, but lawyers say they will press ahead with arguments that the charges are unsupported by the facts presented by the government, unconstitutionally target individuals exercising their First Amendment free speech rights, and are otherwise on shaky legal ground.
Defense lawyers contend that the new indictment fails to fix an overarching problem with earlier versions of the indictment, which is that it blames a large group engaging in protected speech for the actions of a few who committed vandalism, destruction or violence.
“The consequence of the government’s unprecedented, non-individualized theory of criminal liability is predictable: an indictment littered with fatal irremediable defects,” the lawyers wrote.
Other defendants plan to pursue dismissal individually, rather than sign onto a joint filing. Lawyer Jason Flores-Williams, who is representing three defendants, told BuzzFeed News that he decided it made more sense for his clients to file separate motions to dismiss, although he said that he is sharing ideas and coordinating with other defense lawyers.
Should the motions to dismiss fail, court filings indicate there are still many more legal battles to come before these cases go to trial, such as whether evidence was lawfully collected and whether defendants should be tried in groups, as opposed to individual trials for each person. Prosecutors have provided defense lawyers with access to hundreds of hours of video footage from Jan. 20, but have yet to turn over data extracted from more than 100 cell phones seized during the arrests, according to lawyers who spoke with BuzzFeed News.
Flores-Williams has already asked District of Columbia Superior Court Judge Lynn Leibovitz, who is presiding over all of the Inauguration Day prosecutions, to require a separate trial for one his clients, rather than agree to the government’s plan to try defendants together.
“There is a spillover prejudicial effect where when evidence against one person as I said ends up in the jury’s mind being evidence against everyone else who was there, regardless of whether that evidence was actually against them or proven against them in any direct or specific way,” Flores-Williams said.
A spokesperson for the US attorney’s office in Washington declined to comment.
“They’re just trying to scare people”
Police in Washington arrested more than 200 people during an “anti-capitalist, anti-fascist” demonstration in Washington the morning of President Donald Trump’s inauguration. Many marchers dressed in black and covered their faces — a tactic police have described as a “black bloc” — and some broke the windows of stores and cars.
The arrests also swept up journalists and legal observers. For the most part, those cases have been dropped by the US attorney’s office. A civil lawsuit challenging the legality of the mass arrests and the use of force by police on Jan. 20 is pending in federal court in Washington.
Earlier versions of the indictment charged arrestees with one count of felony rioting, which carries a maximum penalty of 10 years in prison and a maximum fine of $25,000. A handful of defendants faced additional charges for destruction of property, and one, Dane Powell, was charged with assaulting police officers.
The latest indictment, returned by a grand jury on April 27, charged 212 defendants with at least eight counts: one count of inciting or urging others to riot, one count of conspiracy to riot, one count of engaging in rioting, and five counts of property destruction. Three new defendants were added to the case, while prosecutors announced that they were dropping charges against three others.
The government says the “inciting” and “engaging” charges are felonies that carry up to 10 years in prison; some defense lawyers are arguing that the engaging charge is a misdemeanor with a maximum penalty of 180 days in jail. The destruction of property charge is a felony, carrying up to 10 years in prison. The penalties for conspiracy will depend on whether it's treated as a misdemeanor or a felony.
One hundred defendants also face a misdemeanor charge of assaulting a police officer, which carries up to 180 days in jail, and a handful of defendants face additional property destruction or misdemeanor assault charges. According to the indictment, people charged at police, and at least one person threw a patio chair at law enforcement, causing one officer to fall off his motorcycle. Another officer broke his wrist trying to arrest the alleged, unnamed assailant, according to prosecutors. Powell, who was accused of throwing objects at officers, remained the only person facing felony police assault charges, which carry up to 30 years in jail.
Powell pleaded guilty on April 28 to two felony charges: inciting or urging a riot, and assault on a police officer. The rest of the charges were dropped. He is scheduled to be sentenced on July 7. Powell and his lawyers declined to comment.
The 207th defendant, Aaron Cantu, was indicted by a grand jury for the first time on May 30. Cantu is a freelance journalist whose arrest was highlighted by the Reporters Committee for Freedom of the Press. He is due in court for an arraignment on June 9.
Besides Powell, five other defendants have accepted plea deals since late April. These defendants pleaded guilty to a misdemeanor rioting charge, and received suspended prison sentences, community service, fines ranging between $500 and $1,000, and a period of probation. They either declined to comment or they or their lawyers did not return interview requests.
Defendants who spoke with BuzzFeed News were careful not to criticize those who took plea deals or were considering it. Olivia Alsip, one of the defendants who has signed onto the “Points of Unity,” said the defendants hope to leverage their numbers not only to try to convince the government to drop the charges, but also to help secure favorable plea deals for co-defendants who decide to go that route.
"Points of Unity"
The unity pledge, which has been circulating since February, is separate from a statement released in mid-April by a group of anonymous defendants — known as “L12,” a reference to the location of the mass arrests at 12th and L Streets in northwest Washington — vowing to reject any plea deal. The “Points of Unity,” whose signatories are also not being released, includes a pledge to reject plea deals that involve cooperating “at the expense of other codefendants.”
To date, 131 defendants have committed to the unity pledge, up from the 98 who had signed on by the time the new indictment came down, according to Hermes.
“I’m not willing to make their job easier by pleading to something just to give them what they want,” Alsip said. “The severity of the new indictment I think is pretty clearly evidence that their case is pretty weak and they’re just trying to scare people into taking pleas.”