A judge on Friday ordered federal prosecutors to disclose whether they had an arrangement with James O’Keefe’s right-wing activist group Project Veritas to conceal the group’s identity in using secret recordings of protest-planning meetings before President Donald Trump’s inauguration.
The order represents the latest fallout from the decision by the US attorney’s office in Washington, DC, to use videos made by a Project Veritas operative in its prosecution of more than 200 people charged with rioting on Jan. 20, 2017. Twenty-one people pleaded guilty in the months immediately after the mass arrests, but the government failed to get any convictions and ended up dropping the remaining cases over the summer.
Litigation has pressed on over the government's handling of the Project Veritas recordings. While the government used some recordings from the right-wing group — which has frequently been found to selectively edit its videos — in Inauguration Day cases that went to trial, a judge later found that prosecutors were wrong not to disclose an additional cache of videos and audio recordings in their possession. The judge also ruled that prosecutors violated evidence disclosure rules in not revealing video edits that the government made.
Prosecutors and a group of defense lawyers were in DC Superior Court on Friday as the government argued that Chief Judge Robert Morin should find there was no “intentional misrepresentation” by the government about its decision not to tell the defense or the judge about the additional recordings.
A judge's finding that a prosecutor committed misconduct could have consequences beyond the underlying case. Former defendants have encouraged each other to file ethics complaints against the lead prosecutor, Assistant US Attorney Jennifer Kerkhoff, with the DC Bar. Defense lawyer Mark Sweet said during Friday’s hearing that Morin’s decision could be relevant in any defense effort to have the government cover its legal fees.
David Goodhand, a senior counsel in the US attorney’s office, told the judge that they were pursuing the issue even though the prosecution was over because any allegation of misconduct was something his office took seriously.
“It’s a very serious suggestion,” Goodhand said. Later in the hearing, he said the government didn’t “want that to exist on the record and lay latent.”
Defense lawyers also complained that the government originally didn’t disclose Project Veritas as the source of the recordings, and that the defense lawyers had to piece together the connection through their own research. Speaking at Friday’s hearing, Elizabeth Lagesse, one of the defendants whose case was dropped, questioned whether the secrecy surrounding the videos was the result of an arrangement between the government and Project Veritas.
The judge then asked Goodhand if there was any agreement to keep Project Veritas’s identity secret. Goodhand said he didn’t know. Morin ordered him to file a supplement to the government’s court papers with an answer.
Asked if there was an agreement with the US attorney's office, a spokesperson for Project Veritas said in an email to BuzzFeed News, "We fully cooperated with the investigation."
A total of 212 people were indicted in connection with the protests on Inauguration Day. The demonstration had been advertised as an “anti-capitalist” and “anti-fascist” march and turned violent at times, with participants breaking windows of storefronts downtown. The government estimated more than $100,000 in property damage. Many defendants argued the violence was limited to a few people and that most of the group was participating in First Amendment–protected political speech, not criminal activity.
The first six defendants to stand trial were acquitted in December. Prosecutors then dismissed 129 cases, saying they were going to focus on the most serious cases. A second trial ended with the acquittal of one defendant and the jury acquitting or deadlocking on charges against the other three defendants in that group. Before announcing that it was dropping the cases entirely, the government dismissed 13 cases while it dealt with the Project Veritas–related complaints.
The US attorney’s office announced on July 6 that it was dismissing the final 39 cases that were still waiting to go to trial.
At the first trial last year, prosecutors showed the jury a video that a person affiliated with Project Veritas secretly recorded of a protest-planning meeting shortly before Inauguration Day. Kerkhoff at the time had argued against telling the jury who made the video — she said it was “irrelevant,” according to a HuffPost report from the trial — but the judge ultimately ordered her to disclose the information to jurors.
For defendants and free speech advocates who believe that the decision to prosecute the Inauguration Day mass arrest cases was politically motivated, the involvement of Project Veritas as a government source deepened their suspicion. Kris Hermes, a spokesman for a group formed to support the defendants, Defend J20 Resistance, said in a statement at the time that the use of the video “shows that the federal government is in collusion with ultraconservative organizations to criminalize its political opposition.”
Months after the first trial, defense lawyers learned that several minutes were edited at the end of the video, removing footage that included the videographer saying, “I was talking with one of the organizers from the [Industrial Workers of the World] and I don’t think they know anything about any of the upper echelon stuff.” Defense lawyers said it was a significant statement in a case involving accusations that defendants conspired to riot — that the person recording the video didn’t think participants at the planning meeting were top-level organizers.
That discovery prompted questions from Morin about whether there were other Project Veritas recordings. At an April hearing, he ordered the government to turn over the “entirety of whatever is in the government's possession,” but at the time the government didn’t disclose the other recordings that are now at issue. Goodhand said on Friday that the government interpreted Morin’s order in April to refer only to certain recordings that prosecutors considered relevant to the case. The government has argued that it didn't turn over the other recordings because Kerkhoff determined they weren't relevant.
“It was intended as a sweeping direction,” the judge said. Morin noted that the government otherwise had erred on the side of producing as much information as possible in these cases, and said it was “surprising” the government didn’t ask him for guidance about whether it should turn over all of the Project Veritas videos.
Over the course of two hearings in May, Morin found that prosecutors violated disclosure rules by failing to disclose edits by a detective involved in the investigation. The government had said Kerkhoff forgot to bring up the deletion when discussing edits but it wasn't intentional. Morin also criticized the decision not to reveal the existence of the other recordings, calling it a “serious violation.”
“The Court's memory and the reading of the transcript is, the Government left the Court and the parties with the distinct impression that there were no additional videos other than what had been previously disclosed. And we come to find out, there are additional videos, in the Court's mind, that would be relevant to the conduct of any investigation of a competent defense counsel,” Morin said at the time, according to a transcript.
The government isn’t asking Morin to undo his finding that the government violated evidence rules by failing to tell the defense about the video edits, but Goodhand said the US attorney's office wanted a statement from the judge, even a “single sentence,” that there was no international misrepresentation by the government.
“It won’t be a single sentence order,” Morin replied.
Updated with comment from Project Veritas.