DC jurors weren’t particularly impressed with Assistant US Attorney Jennifer Kerkhoff’s claims that attending a protest makes one part of a conspiracy, as they failed to convict any of the nearly 200 people arrested during an anti-Trump protest. And Chief Judge Robert Morin, was similarly unimpressed by Kerkhoff’s decision to withhold evidence from the defense and mislead the court about it, which is why he sanctioned the prosecution. Yet, someone at the US Attorney’s Office must have been impressed, as since her ignominious defeat Kerkhoff has been promoted.
From January 2017 to July 2018, the US Attorney’s Office attempted to criminalize protest itself through felony prosecutions of Trump Inauguration (J20) protests. According to their shocking theory, anyone who attended a protest was part of a criminal conspiracy. Acts such as marching or chanting were elements of a crime. In addition to this appalling assault on the First Amendment, was the draconian nature of the charges themselves–multiple felony counts carrying over 60 years in prison.
As lead prosecutor, Kerkhoff did everything she could to push this narrative. She quipped that it is “the group that is the danger, the group that is criminal.” During the opening arguments of the first six J20 defendants to go trial, she freely conceded to the jury that none of the defendants engaged in property destruction. During closing arguments, she told the jury that:
The defense has talked to you a little bit about reasonable doubt. You’re going to get an instruction from the judge. And you can tell it’s clearly written by a bunch of lawyers. It doesn’t mean a whole lot.
In addition to trying to criminalize protests, Kerkhoff also attempted to prosecute two journalists. Similar to the protesters, the “case” against them failed to amount to much more than their presence at protest where some property destruction occurred.
Kerkhoff’s contempt for journalist didn’t end there. After the failures of the government during the first trial of J20 defendants, the government began insisting that it needed an expert witness to testify on “black bloc tactics.” They claimed it was the lack of such a witness that led to their defeat in the first round. The US Attorney’s Office proposed that an FBI agent, who had previously infiltrated Occupy Wall Street, be allowed to testify pseudonymously. In order to justify this extraordinary move, Kerkhoff claimed that witnesses for the prosecution faced unique threats. But if you read her brief, essentially what she sees as the threat is that journalists (including possibly the author of this piece) reported on testimony given in open court and took pictures of government witnesses while on public property. A judge rejected Kerkhoff’s request.
While such blatant contempt for the First Amendment is reason enough to object to Kerkhoff’s promotion, her bad acts go even further. At one point, Kerkhoff sought to convict the protesters of eight felony charges, including felony participating in a riot. There’s just one problem, participating in a riot isn’t a felony under the DC Riot Act. A judge reduced the count to a misdemeanor. Similarly, misdemeanor assaulting a police officer charges were thrown out by a judge as the government had charged the defendants under a statute that was no longer on the books. Both acts raise serious questions as to what instructions prosecutors gave the grand jury. Those instructions remain sealed.
And then there’s the violations of the defendant’s’ due process rights for which the prosecution was sanctioned.
One of the government’s main pieces of evidence was a video surreptitiously recorded by the right wing group Project Veritas. At the first trial, the government was allowed to admit into evidence an edited version–allegedly to protect the identity of an undercover police officer (who testified at trial under his real name) and the right wing infiltrator who took the video. During later proceedings, Chief Judge Morin ordered the defense be permitted to view the whole video. At this point it was discovered that the video was edited in a way that cut out exculpatory evidence. Kerkhoff told the defense counsel and Chief Judge Morin that this was the only recording from Project Veritas that the prosecution had obtained. However, it was revealed that the prosecution had received at least 69 recordings from Project Veritas that it had failed to disclose to the defense or the court. Chief Judge Morin found that this was an intentional failure to disclose evidence and that the government had made material misrepresentations to him. As a result, he took the rare move of sanctioning the prosecution. As part of the sanctions, the prosecution was no longer allowed to use the video or conspiracy liability, essentially bringing the prosecutions to a close.
Even when prosecutors withhold evidence, it is extremely rare for them to be sanctioned. Yet, in spite of this Kerkhoff appears to have been promoted. Former J20 defendant and activist Elizabeth Lagesse noted that Kerhoff has been promoted to Felony Major Trial Section Chief. This would mean she is now head of her department.
This is absolutely unacceptable. Kerkhoff and anyone else involved in the J20 prosecutions should be held accountable for electing to bring mass felony prosecutions, which attempted to criminalize core First Amendment freedoms. And a prosecutor who violates the due process rights of defendants while making material misrepresentations to a judge should not be section chief.