Late next month, the first mass trial will be held for some of the roughly 200 people facing years—or even decades—in prison after being arrested during an anti-capitalist, anti-fascist protest that took place on the day of Donald Trump’s inauguration. The “J20” cases, as they are known, offer a glimpse at the treatment of dissent in this country, and the story they tell is one of overreach and criminalization. Defense lawyers have described the government’s approach as “unprecedented,” its indictments as “littered with fatal irremediable defects.” Sam Menefee-Libey of the DC Legal Posse, a group of activists who provide support to the defendants, was more blunt, criticizing the cases as “blatant political prosecutions” designed to “chill resistance.”
The story of the J20 protesters should frighten anyone concerned about the future of both free assembly and dissent in the United States. The charges—which include felony rioting, inciting or urging others to riot, conspiracy to riot, and property destruction—all stem from the same mass arrest, during which police indiscriminately swept up protesters, journalists, and legal observers. What makes the charges all the more troubling is that prosecutors then failed to allege that the bulk of defendants did anything specifically unlawful; rather, merely being at the protest was a crime.
A case in point: The prosecution charged all of the defendants (at one point numbering 214) with breaking the same windows. Prosecutors, of course, know that 200 people cannot break the same windows. But the logic of the case dictates that the defendants’ mere presence at a protest during which property damage occurred makes them guilty.
Meanwhile, compounding the concerns raised by the J20 prosecution are a series of parallel legal skirmishes that have been playing out around several warrants for information issued by the Department of Justice (DoJ). Lawyers and activists have charged that these warrants—which are part of the government’s attempt to prove that the protest was the result of planned riot—are dangerously overbroad and, as such, pose serious First Amendment challenges. Particularly in their initial forms, they have argued, the warrants could have resulted in a dragnet-style collection of electronic information related to political speech and organizing.
In the first of these warrants, the DoJ requested that the web-host provider DreamHost share all of the information associated with its customer DisruptJ20.org. DisruptJ20.org served as the information hub for protests during the inauguration, but the government has since sought to portray it as the organizer of a premeditated riot. To comply with the DoJ’s initial warrant, DreamHost argued, it would have needed to turn over the 1.3 million IP addresses of those who visited DisruptJ20.org—a move that would have amounted, essentially, to a list of individuals politically opposed to Trump.
While the DoJ subsequently amended its warrant to exclude the demand for IP addresses—thanks, largely, to widespread outrage—it continued to alarm activists and legal experts with its ongoing quest for a broad range of information from the site, including e-mails from individuals, not suspected of any crime, who wrote to the site inquiring about protest activities or offering lodging for out-of-town protesters. Civil libertarians hoped the warrant would be thrown out, but Chief Judge Robert Morin of DC Superior Court declined to do so. Instead, he ruled that DreamHost was to redact the identities of individuals in order to safeguard their First Amendment rights; if, after reviewing the redacted information, the DoJ finds evidence of a crime, the court will un-redact the information.