A combined total of 12,000 years in prison is what close to 200 protestors, journalists and legal observers are facing from attending a protest at the January 20 inauguration of President Donald Trump. After a superseding indictment, the US prosecution is seeking to charge each person with 60 years for allegedly urging a riot, breaking less than 10 windows and conspiracy charges. The US Attorney’s Office for the District of Columbia claims that the property damage totals to more than $100,000. DC police spent $300,000 on weapons and equipment for the inauguration and just added $150,000 to the DC budget to review police conduct during the inauguration. While many lawyers are calling the blanket felonies and excessive charges unprecedented, civil liberty advocates are worried about the precedent these extensive charges and grandiose metadata subpoenas will have on chilling free speech and stifling dissent.

Social activist and community organizer, Carlo Piantini, who is a J20 defendant explained in an interview with Truthout that, “Charges like these are intended to silence communities when the time comes for people to resist, whether that be the activist community, the anarchist community, or any other.” Piantini continued, “How are people expected to be brave enough to resist when the consequences could be a lifetime of incarceration? Never mind the beatings from the police. When taking the streets and demonstrating could mean facing concussion grenades, jail cells infested with roaches, and the promise of eight felony charges, who is going to stand up and fight back? These charges are intended to keep people afraid, indoors and obedient. And this case itself is intended to set the precedent for all of this.”

Repression, Harsh Sentencing and Sexual Assault

The ACLU cited infringements of First Amendment rights in regards to the police “indiscriminately ‘kettling’ protesters, including journalists and legal observers,” for using pepper spray, concussion grenades and stingers extensively, including on people already detained, and for holding people outdoors “for excessive periods of time” without access to food, water or bathrooms. The ACLU filed a lawsuit in June accusing police of using sexual abuse as a form of punishment with four people arrested during the protests. At a press conference held in June, photojournalist Shay Horse who was detained explained that he was taken to a “training facility,” told to drop his pants and had his testicles “yanked on” and then the officer “stuck his finger up each of our anuses and wiggled it around.” Horse continued, “I felt like they were using molestation and rape as punishment. They used those tactics to inflict pain and misery on people who are supposed to be innocent until proven guilty.”

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Kristian Williams, author and scholar on policing and state violence stated in an interview with Truthout that, “one of the most distressing facts about the criminal legal system is just how common sexual assault is at every stage from police contact to arrest to incarceration. Sometimes in political contexts it’s deliberately used as a weapon of terror, but more commonly the practices are informally tolerated and just fester in the culture of impunity.” Regarding the excessive charges Williams explained, “Prosecutors reach for the highest conceivable charges, especially those with mandatory minimums attached, and scare defendants into accepting lesser charges, giving evidence against their co-defendants.” Williams added that this process funnels people into prison and cuts cost on holding trials, stating, “If every case went to trial, the courts would grind to a halt and never recover from their backlog.”

In an interview with Truthout, Jude Ortiz, who is chair of the Mass Defense Committee of the National Lawyers Guild (NLG), explained that, “The novel part of this case is about charging everyone who was scooped up in the kettle with the conspiracy and all the blanket felonies in a very indiscriminate manner. That also coincides with the things that the prosecution has been doing against individuals who are named as defendants.” Ortiz noted that 95 percent of criminal cases end in plea agreements explaining that the odds are often stacked against defendants, which coerces them to take plea agreements instead of gambling against a biased system. Ortiz further explained that the government is “Claiming that anybody who was indiscriminately scooped up that day in the streets is inherently guilty of that conspiracy and therefore culpable for all of the charges. That has a lot of scare potential and scare value because now people are facing 60 years because of the prosecutor’s theory of the case.” Ortiz pointed out that the irony of the conspiracy charges is that most of the defendants are only connected to each other because of the prosecution and the mass arrest.

Guilty by Association in the Age of Trump

If the NSA [National Security Agency] wasn’t enough to have George Orwell and Aldous Huxley shouting “I told you so” from the grave, cellphones of the 230 arrested were seized and searched for their data, and DreamHost was subpoenaed by the government in August for hosting the site DisruptJ20.org. According to the ACLU, the warrant sought digital records to the site, had the possibility of implicating more than 1 million users, and would include the “IP addresses of over 1.3 million visitors to the site.” Last month, Chief Judge Robert E. Morin, of the District of Columbia Superior Court, subdued the DOJ’s warrant stating:

“while the government has the right to execute its Warrant, it does not have the right to rummage through information contained on DreamHost’s website and discover the identify of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities.”

In a statement to Ars Technica, Paul Alan Levy, a lawyer for Public Citizen cited the judge’s shortcomings in the ruling, “The judge has decided to allow a search of emails from anonymous users (without their identifying information) even though the government never showed that it had a good reason to look at those emails.” Levy further explained that “the judge is denying Public Citizen and DreamHost the opportunity to explain why the government’s arguments for a search protocol or access to a particular record should be rejected.”

In an e-mail correspondence with Truthout, Noam Chomsky stated that the J20 charges were “Utterly outrageous,” and explained that although Woodrow Wilson’s Red Scare and COINTELPRO were worse, he added, “Harsh repression of dissent is all too common in US history.”

Comparing Charlottesville to J20: A Case Study in Hypocrisy

At the August 12, 2017, white supremacist “Unite the Right” rally in Charlottesville, Virginia, where firearms were discharged by white supremacists, there were no initial arrests. Nor were they kettled and charged with blanket felonies and conspiracies to riot even though DeAndre Harris, a Black man, was brutally beaten by white supremacists (and later arrested). And although multiple people were injured and Heather Heyer was killed after a white supremacist allegedly drove a car through a crowd of counter protesters, few white supremacists have been arrested. The question is, why were protesters in DC targeted and excessively charged, while the violence by white supremacists in Charlottesville was downplayed by the infamous violence on “many sides” comment by President Trump? Kris Hermes, author of Crashing the Party: Legacies and Lessons from the RNC 2000 said, “There’s no question that the Trump administration has a double-standard for how it treats opponents like anti-fascist activists versus how it treats white nationalists.”

Regarding the disparity in treatment, Carlo Piantini stated that, “The resistance that took place on J20 was not beneficial to the state; the white-supremacist violence that took place in Charlottesville was. This country has always been a colonial, white-supremacist project, and the Trump regime rode its way into power by renormalizing explicit white-nationalism.” Piantini explained, that white supremacist groups “share a politic of personal and systemic violence against a wide spectrum of marginalized identities, and they actively practice this at events like ‘Unite the Right’ or at Richard Spencer’s recent failure at the University of Florida. That violence is beneficial to the state, it helps maintain a fundamental social order. So, time and again, we see the police acting in open cooperation with these formations, whether it’s in Portland, Charlottesville, Gainesville or DC.”

Solidarity, a Different Type of Precedent

Changing the narrative on precedents, Ortiz said, “People have come together in really incredible ways that actually are precedent setting for our movement and figuring out how to work together remotely, how to find common political solidarity and a reason to work together despite the tremendous consequences that they’re facing. Despite all of the hardships that the government has imposed on them, that’s a really strong testament to the resiliency of our movement.” Along with the NLG, Dead City Legal Posse — a collective that formed after the J20 arrests — is helping and supporting defendants through the legal process.

Speaking about the struggles that he and the co-defendants face, Piantini said, “The most impressive organizing has been centered around material and emotional support for co-defendants.” He added that the trauma of criminalization is stressful but has “created some truly beautiful relationships out of a group of strangers.”

Kris Hermes noted that an independent investigation into police misconduct on Inauguration Day began in October and won’t conclude until after the J20 trials begin. “It’s outrageous enough that nearly 200 people are facing decades in prison for demonstrating on the streets of DC during Trump’s inauguration,” Hermes stated, “but to try people before it can be determined whether their arrests were lawful or whether the police violence helped to escalate tensions that day is unjust and incomprehensible.” November 15, 2017, is the opening day of court for the first round of defendants, the second round is expected to begin December 11, 2017.