D.C. Prosecutors Dismiss 129 Inauguration Day Protest Cases

The government now says it will prosecute only those it can prove committed specific criminal acts.

Federal prosecutors have dismissed all charges against 129 of the defendants arrested in connection with the protests in downtown D.C. on Inauguration Day. The decision comes one month after a local Superior Court jury acquitted the first six of the so-called "J20" protesters. Fifty-nine protesters still face charges.

The group was arrested after some demonstrators broke store windows, started fires, and clashed with riot police in Washington's downtown business district. Civil libertarians harshly criticized the arrests, pointing out that the defendants included people who did not appear to have committed any violence or vandalism; the government was prosecuting them under a theory of liability that could criminalize a broad range of nonviolent dissent. Privacy advocates also criticized the digital search warrants sought in connection with the case, one of which compelled a webhost to reveal the I.P. addresses of every vistor to a site afiliated with the protests.

In a "Notice of Intent to Proceed" filed with the court, lead prosecutor Jennifer Kerkhoff and U.S. Attorney Jessie Liu did not concede the innocence of the defendants whose cases were being dismissed. But "in light of the legal rulings by the court and the jury's verdicts in the first trial of these cases," they decided to proceed only with those defendants who "(1) engaged in identifiable acts of destruction, violence, or other assaultive conduct; (2) participated in the planning of the violence and destruction; and/or (3) engaged in conduct that demonstrates a knowing and intentional use of the black-bloc tactic on January 20, 2017, to perpetrate, aid or abet violence and destruction."

The mention of a "black-bloc tactic" refers to the prosecution's initial theory of the case. Prosecutors claimed that by dressing in masks and black clothes while marching together with individuals who assaulted police and destroyed property, each defendant had aided and abetted those crimes, whether or not they had not committed them personally.

Even before the jury's not guilty verdict in December, that theory found a skeptical response in court. In early November, Judge Lynn Leibovitz ruled that one of the two charges with which all of the arrested demonstrators were charged, Felony Engaging in a Riot, didn't actually exist under D.C. law. (In the district, federal prosecutors prosecute local laws.) Then, before the case was submitted to the jury, Judge Leibovitz took the unusual step of acquitting the defendants of the other Riot Act felony charge herself.

That acquittal from the bench requires a judge to hold that the government has produced so little evidence that no reasonable juror could possibly find proof of guilt beyond a reasonable doubt. The jury was left to consider only the related lesser charges stemming from specific acts of alleged property damage, plus misdemeanor riot charges. It returned a verdict of not guilty to each.

At a hearing this afternoon, Kerkhoff claimed that the government has identified specific video clips and or items of physical evidence that prove each of the remaining defendants committed at least one specific criminal act.

One defendant still facing charges is Aaron Cantú, a staffer at the Santa Fe Reporter. Charges had been dismissed early on against six other journalists who said they were merely covering the protest rather than rioting, but prosecutors contend that Cantú participated in the destruction. (Another reporter, independent videographer Alexei Wood, was found not guilty at the first trial.)

The next group of remaining defendants are scheduled to be tried beginning March 26.