The Department of Justice’s continuing felony prosecutions stemming from an anti-capitalist, anti-fascist protest during Trump’s inauguration has taken yet another bizarre turn. Earlier this month Assistant US Attorney Jennifer Kerkhoff indicated her intent to call as an expert witness an FBI agent who infiltrated social movements, such as Occupy Wall Street, to opine on “black bloc tactics.” The government has also requested that the witness testify publicly under an alias. They cite as cause for concern about the “safety and security” of the FBI agent the fact that journalists and other observers (including the author of this piece) reported on public testimony during the last trial.
The prosecution’s expert, whom they seek to admit under the alias “Julie McMahon”, worked in an “undercover capacity for two years (from 2008-2010), infiltrating an anarchist extremist group in the New York area.” According to the prosecution’s motion, this included participation in both Occupy New York and “G20 in Pittsburgh in 2008” (The G20 met in Pittsburgh in 2009, not 2008). Documents released via FOIA revealed that the FBI carried out a counter-terrorism investigation into Occupy Wall Street even though it conceded the movement was non-violent. Defending Rights & Dissent was joined by 131 civil society groups in calling on Congress to investigate why the FBI spied on Occupy.
While “McMahon” has not infiltrated social movements in nearly eight years, according to the US Attorney’s Office she receives “daily and/or weekly intelligence briefings.” These briefings include information about “extremist individuals and groups in the anarchist and anti-fascist movements and the tactics employed by these individuals and groups.” This, along with “McMahon’s” infiltration of the nonviolent Occupy movement, is deeply disturbing. It would indicate that the FBI, in the name of counterterrorism, monitors, spies on, and infiltrates groups because of their First Amendment protected-beliefs. The prosecution’s theory of the case is that the anti-capitalist, anti-fascist march, was in fact a premeditated riot. “McMahon” as a result of this surveillance is apparently an expert in “black bloc” tactics. She is purported to testify based on her review of “language” used during a planning meeting and images of the protest that the “black bloc” tactic was used. The FBI has a century-long history of demonizing anarchists. It would appear that McMahon’s proposed testimony is yet another instance of this.
Equally disturbing as “McMahon’s” testimony and background is the prosecution’s request to keep her true identity anonymous to the public. While defense counsel will be given her true identity, this has the effect of demonizing the defendants and their supporters by making it seem like they pose a threat to an FBI agent. In order to manufacture such a threat, the US Attorney’s Office is distorting instances of journalist reporting on the trial to make them sound sinister.
When the undercover police officer who infiltrated the Disruptj20 organizing meetings testified, he did so under his actual name–Officer Bryan Adelmeyer. As is standard practice, journalists reporting on the trial, including the Washington Post, Unicorn Riot, Huffington Post, and myself, all used his name when discussing his testimony. Ryan Reilly of the Huffington Post also took Adelmeyer’s picture as he exited the courthouse, which is public property, and this picture was included in Reilly’s articles. After Adelmeyer’s name was made public, I googled him and discovered his picture and information about him on the MPD’s website. When tweeting about Adelmeyer’s testimony, I, on at least one occasion, included a screenshot of this page.
Apparently, I wasn’t supposed to take screenshots of the MPD website either. pic.twitter.com/1pWNDep8gY
— Chip Gibbons (@ChipGibbons89) March 6, 2018
Additionally, Reilly took and published pictures of a number of other figures who testified in the trial, including Detective Greggory Pemberton, the lead investigator on this case and also of Assistant US Attorney Kerkhoff. Reilly reported that when he asked one police officer’s permission to take pictures, he was told the courthouse was public property.
Covering the #J20 trial, I took photos of prosecutors and officers after they exited the courthouse. I even gave one officer a courtesy heads up, and he (correctly) noted it was public property. He didn’t protest. Gov now using my coverage to argue for hiding witness’ identity. pic.twitter.com/66pP17IWQ7
— Ryan J. Reilly (@ryanjreilly) March 6, 2018
Alex Rubinstein, who was one of the journalists initially arrested during the kettle (his charges were dismissed) was covering the trial as a freelancer. He took a picture of Kerkhoff and Pemberton. According to Rubenstein, Pemberton, recognized the journalist, inquired about how he was doing, and said he was sorry it took him so long to get his phone back.
Here’s a picture of Detective Pemberton and prosecutor Jennifer Kerkhoff leaving the Superior Court. As I snapped it Pemberton asked how I was and said “sorry it took so long to get your phone back.” #j20 #J20trials pic.twitter.com/pQ8BWjkwCS
— Alex Rubinstein (@RealAlexRubi) December 13, 2017
The motion filed by the US Attorney’s Office twists these facts to paint a very different picture. If you had read it absent any context it would sound as though individuals acting maliciously outed an undercover officer and disseminated personal information about two of the lead figures in the trial, leading to their harassment. Per the motion, Adelmeyer can no longer do undercover work. This is probably true, but this a foreseeable consequence of testifying at a high profile public trial. It is unclear what Kerkhoff believes journalists covering Adelmeyer’s testimony should have done. It also cites Det. Pemberton being on the receiving ends of negative tweets and Kerkhoff receiving in the mail a picture of herself, taken from the Huffington Post, with vulgar slang written on it.
Certainly, it is legitimate to be upset about receiving a photograph of oneself in the mail with vulgar commentary scrawled across it. However, there is also an immense hypocrisy at play. The US Attorney’s Office cites journalist photographing the prosecutor and police witnesses on public property as posing a threat. Yet, when the MPD turned over the names–and home addresses–of those arrested to an alt-right outlet they defended their actions on the basis that such information was public. After a picture of me speaking to at a Defend J20 rally was posted on social media, an individual who frequently tweets praise of Adolf Hitler tweeted that I looked like a “lying Jew.”
Throughout the case the prosecution has attempted to keep information from the public–ranging from police body camera footage to the identity of a proposed expert witness. The prosecution by doing so keeps from the public information they have every right to know and limits the ability to hold the prosecution and police accountable. Detective Pembleton’s identity being public led to the discovery of his public twitter, where he tweeted things that showed a serious animus towards activists. Adelmeyer’s testimony served as the basis for a FOIA request file by DRAD and the National Lawyers Guild. Given the history of undercover agents acting as agent provocateurs, people have every reason to want to know more about them.
Trials are open to the public for a reason.
The consistent attempts to conceal information from the media and the public also has the dual purpose of demonizing the defendants and their supporters. This is the entire strategy of the prosecution, which seeks to transform a protest march into a conspiracy. Allowing a FBI official who seems to conflate activism with terrorism testify anonymously, due to the threat of journalists accurately covering her testimony, furthers this.