Survival and Denial
A protestor speaks with a line of police officers during the George Floyd protests in Seattle, Washington. Photo by Derek Simeone

The President’s War on Dissent Is Using Trumped-Up Federal Charges

Donald Trump’s first term as president is ending as it began: with the aggressive targeting of dissent.

On his Inauguration Day in Washington, D.C., more than 200 participants in a rambunctious, antifascist march were surrounded by police and arrested en masse. Pressed against each other for hours under an icy January drizzle, the so-called J20 detainees presumed that they would soon be released to face, at most, minor charges for civil disobedience. After all, the vast majority of those caught in the mass arrest had simply marched and chanted, dressed in black. But federal prosecutors had other designs. Almost all the arrestees that day were charged with felony riot and conspiracy, made to face potential decades in prison.

The J20 prosecutions threatened to presage a frightening turn in the federal government’s policing of dissent: indiscriminate mass arrests, sweeping prosecutions, and the recoding of First Amendment-protected activity as illegal riot. A novel theory of collective liability was deployed in which prosecutors claimed that a large group of people should be held criminally responsible for their mere presence in a protest action where a small number of unidentified participants had smashed chain-store plate glass. But the government’s case fell apart. After a bleak, frightening 18 months for the defendants, federal prosecutors dropped all charges, having failed to garner any convictions when the first tranche of J20 cases went to trial.

The federal government has lately updated its strategy. Throughout this year’s long summer of uprisings, the Trump administration and its servile Justice Department escalated outlandish efforts to demonize and criminalize left dissent and Black liberation protest. The president’s paranoiac screeds against “antifa” echoed and exceeded the chaos and baselessness of the J20 prosecutions.

Meanwhile, a vast federal law enforcement apparatus has deftly been expanding its reach over the policing and prosecution of dissent nationwide. Eschewing the J20 playbook of mass arrests and collective prosecutions, federal prosecutors have instead found unprecedented and targeted ways to turn local protest activities into federal crimes — particularly with the use of radically overreaching charges for “interstate” crimes, even for protesters who crossed no state lines. In one glaring case, a protester alleged to have a molotov cocktail at the ready was charged with federal — not state — crimes based on a specious international angle: The bottle he allegedly planned to use, which originally contained tequila, was imported to the U.S. from Mexico.


Mission Creep in Repressing Dissent

Ahead of an election period when protesters of all stripes are readied to hit the streets — from liberals dusting off their pink pussy hats to committed antifascists to far right, white supremacist militias — the government has overseen a pernicious mission creep in federal control over repressing dissent. Its unerring focus is on left-wing and Black liberation struggles.

There was good reason for public ire this July when videos emerged of federal agents in Portland, Oregon, bundling protesters into unmarked vans; such acts, after all, are recognized as what fascism looks like. Yet, behind such overt violence, the federal government is shoring up its repressive capacities through calculated prosecutions. As Aaron Cantú reported for The Intercept, prosecutors nationwide have this summer engaged in “a pattern of aggressive federal prosecutions for crimes not usually in the purview of U.S. attorney’s offices.”

The federal government has taken up hundreds of protest-related cases, including those involving minor acts of property damage and civil disobedience, which are usually handled by state prosecutors. State attorneys general, of course, also cracked down with zeal and have overseen thousands of indictments related to the uprisings. But it remains all the more frightening that, under far-right Attorney General Bill Barr, arrested protesters now also face the full weight of a federal government on an ideological warpath against antifascism.

“Frankly, I have been surprised at the lack of mass arrests followed by mass indictments, as we saw during the counter-inaugural ‘J20′ case,” social movement scholar Michael Loadenthal told me. Loadenthal is the executive director of the Prosecution Project, a research platform that tracks and analyzes alleged “political violence” prosecutions and has been compiling data on this summer’s federal indictments. “More than mass arrests, we see over 300 cases of selective prosecution by the feds against demonstrators,” Loadenthal said. He added that the government has made “extensive use” of “interstate crimes” to transform state charges into federal ones, thus bringing more protest cases into the Justice Department’s remit.

“Since using an interstate highway, the mail service, cellular networks, internet backbone, and other services can constitute ‘interstate,’ the bar has just been continually lowered for describing a crime as an ‘interstate’ crime,” Loadenthal said. Athena Chapekis, a data scientist with the Prosecution Project, told me that compared to the 300-plus federal indictments from late May to late September, “in years prior, the same summer period has only given way to approximately one to 10 indictments.”


Low Bar for Federal Charges

The bar has indeed been lowered. Eighty-six of the 300-plus individual federal cases identified by the Prosecution Project included an “interstate” modification. The scope appears near unbounded for what can fall under federal jurisdiction.

Victor Sanchez-Santa, a 19-year-old from Queens, New York, was arrested in June on arson charges for allegedly setting fire to a New York Police Department cruiser during a Black Lives Matter protest. Yet the New York-based teen, facing charges over a New York-based incident, has been transmuted into a federal defendant, facing the charge of “arson involving interstate commerce.” Prosecutors claim that since the NYPD receives federal funding, an attack on an NYPD vehicle constitutes an interstate, federal offense. The same logic could arguably, and perniciously, be applied to any individual accused of damaging the property of any institution that receives federal funding.

In another arson indictment, this time against New Yorker Samantha Shader, federal prosecutors stated that since the “activities of the NYPD and the New York City government in enacting and enforcing laws also affect interstate commerce,” the case fell under the federal government’s purview. Shader, accused of throwing a molotov cocktail at an NYPD vehicle, could face up to 20 years in prison. Such a claim could open up anyone accused of a crime relating to the city government or police to hefty federal prosecutions. In yet another far-reaching federal indictment, in which a Utah-based defendant is accused of setting a police cruiser alight, prosecutors include the fact that the car was manufactured in Canada as grounds, among others, for an “interstate” modifier.

In perhaps the most striking example, a Black Lives Matter protester in Jacksonville, Florida, was indicted on federal firearms charges when he was detained by police, and a Patron tequila bottle, allegedly converted into a Molotov cocktail, was found in his bag. The indictment states that since Patron products are exclusively produced in Mexico, “the Patron bottle” — described as a firearm — “would have traveled in and affected interstate or foreign commerce.” A federal judge dismissed the charges, but not because of their overreach: The protester’s initial arrest for blocking a roadway was found to be illegitimate when video evidence revealed that he was grabbed while standing on the sidewalk. The logic of the federal government’s involvement went unchallenged.


Summer of Federal Anti-Riot Charges

The government’s failed attempt to confer collective liability on the mass of J20 defendants may have been superseded by a more exacting prosecutorial approach, but recent individual indictments again and again make an excessive point of demonizing broad antiracist, antifascist movements. Loadenthal told me that “cases as ‘simple’ as civil disorder have been accompanied by voluminous affidavits, which include histories placing the defendants’ actions within this much broader context of an uprising.”

The idea of collective liability infuses these disparate cases, while the government has relieved itself of the difficult task of having to prove group culpability in a justice system purportedly premised on proving the guilt or innocence of individuals. And, by threatening individual defendants with hefty federal sentences, prosecutors are more likely to extract pleas and guilty verdicts — especially given the obscene amount of federal resources dedicated to surveilling and collecting evidence against Black Lives Matter and antifascist protesters.

Twenty-nine percent of the summer’s federal indictments came from Oregon. Months of confrontations between antifascist, antiracist protesters and local police, federal law enforcement, and other far-right thugs have made Portland a locus of federal encroachment. In late September, the federal government used the excuse of a planned Proud Boys rally to deputize Portland police officers to report directly to federal agencies — and to maintain the cops as federal deputies through the end of the year, when election-related protests could erupt in a number of directions. The city of Portland has argued that it no longer agrees to its police officers being deputized as federal marshals, but the U.S. Attorney for the District of Oregon Billy Williams has refused to end the designation — a profound, potentially illegal, overreach.

“There have been almost as many federal anti-riot charges this summer as in the past 30 years.”

At the same time, the government’s pattern of recoding protests as criminal riots has continued apace in federal charges, as well as in both presidential candidates’ descriptions of the summer’s uprisings. “We’re seeing the federal government use riot-specific legislation to prosecute socio-politically motivated actors in a way they never have before, and we’re seeing it in great numbers,” Chapekis, the data scientist, told me. “This repeated use of riot charges outside of a large multi-defendant indictment is definitely new.”

She noted that, according to collected data, there have been almost as many federal anti-riot charges this summer as in the past 30 years.


But Not for the Far Right

Federal agents and prosecutors have shown predictable leniency for far-right groups, however armed and deadly. Kyle Rittenhouse, a 17-year-old Trump fan, traveled across state lines to Kenosha, Wisconsin, where he shot dead two Black Lives Matter protesters. He is not facing federal “interstate” charges. Leaked Department of Homeland Security memos revealed, too, that its federal agents were advised to publicly support the right-wing teen and claim that he “took his rifle to the scene of the rioting to help defend small business owners.”

It is by no means unique to federal law enforcement to stand with white supremacists — this is the raison d’être of U.S. policing. Yet those who continue the Sisyphean struggle against fascism face greater risks when targeted by a mighty federal apparatus. Victims of the FBI’s infamous COINTELPRO to crush Black liberation struggle attest to this — those who survived assassinations, exile, and decades behind bars, that is.

The prospect of major protests following the election is all but unavoidable. Even in the case of a clear victory for Democrat Joe Biden, chances are high that emboldened fascist Trump supporters will take to the streets in certain parts of the country, drawing out antifascist counterprotests. Leftists, too, will be keen to exert swift pressure on a Biden presidency, all too committed to a neoliberal “normal.”

In the case of a Trump victory or power grab, we can expect vast protests both placid like the 2017 Women’s March and vigorous like the uprisings this summer. Pre- and post-election mobilizations have already been called in New York, ChicagoD.C., Portland, and beyond. Federal law enforcement has made clear its willingness snatch, grab, raid, beat and extrajudicially assassinate antifascists. And a summer of calculated prosecutorial creep has laid the ground for further unchecked repression.

Here, the J20 case is once again instructive: The government failed to win convictions and pleas in part because of the infirmity of the original arrest, as well as the overreach of its claims. Yet another key element in their defeat was the defendants’ collective resistance. Over 200 people resisted the charges, refused to cooperate with the government, and refused to put any other defendant at risk. “Our solidarity inside and outside the courtroom saved us and protected each other,” a D.C.-based defendant told me at the time.

The government may have shifted its prosecutorial tactics; collective resistance is as necessary as ever.


Natasha Lennard is a columnist for The Intercept. Her work has appeared in The Nation, Bookforum and the New York Times, among others. She teaches critical journalism at the New School for Social Research in New York. She is the author of “Being Numerous: Essays on Non-Fascist Life.”

Co-published with The Intercept.

Save An Endangered Species: Journalists

Natasha Lennard is a columnist for The Intercept. Her work has appeared in The Nation, Bookforum and the New York Times, among others. She teaches critical journalism at the New School for Social Research in New York. She is the author of “Being Numerous: Essays on Non-Fascist Life.”

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