The US Attorney’s Office (USAO) have announced they are moving to dismiss without prejudice all charges against the remaining 38 protesters arrested during Donald Trump’s Inauguration.
The charges stem from an anti-capitalist, anti-fascist protest march, during which DC police indiscriminately deployed “less than lethal” weapons against protesters before arresting 234 people en masse. These arrests were made not on the basis of probable causes based on individualized suspicion, but instead based on geographic proximity to where vandalism was alleged to have occured.
Although similar arrests in the past resulted in the city of DC paying out millions to the arrested for violating their constitutional rights, the USAO decided to pursue unprecedented mass felony charges against around 200 people, including not just protesters, but journalists and medics. In doing so, the USAO advanced a shocking legal theory that what was clearly a First Amendment protect assembly was in fact a criminal conspiracy. As a result, anyone who attended a protest where a handful of individuals were alleged to have engaged in property damage were criminally liable under the law of conspiracy. The sinister logic of this theory was on full display during the first trial of Trump Inauguration protesters when during opening arguments the prosecution freely conceded they had no evidence anyone on trial had engaged in property damage.
The prosecution’s attempts to criminalize dissent failed. A jury acquitted all of the defendants at the first trial, resulting in the prosecution dropping charges for an additional 130 defendants. Other defendants had their charges dismissed after it was uncovered that the prosecution withheld exculpatory evidence from the defense. A second trial resulted in a mixture of acquittals and mistrials.
The prosecution showed an unbridled contempt for free assembly and free press throughout the prosecutions. They pushed baseless charges that had a chilling effect on protest. They engaged in misconduct as they hid evidence. They based their case around questionable evidence from disreputable right wing groups who conducted their own infiltration of protest organizers.
None of this is acceptable. Anyone involved in these abuses, starting with Assistant US Attorney Jennifer Kerkhoff, needs to be held accountable. Absent real accountability, such as Kerkhoff resigning or being fired, prosecutors will free to engage in similar abuses in the future