White-Collar Crime

Video Dimmed The Government Star: The Latest Debacle In The Government's Inauguration Protest Cases

The Department of Justice skipped the day they taught Brady in law school.

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The hits just keep on coming in the slow-motion train wreck that is the government’s continued prosecution of the 2016 Inauguration Day protesters, a case study in what happens when aggressive prosecutors overreach.

As most news-reading people are aware, hundreds of protestors filled the D.C. streets on Inauguration Day 2016 in response to Donald Trump’s election. While the vast majority of them were peaceful, some of them were not and ended up breaking windows, burning cars, and engaging in other property destruction that no civilized society should tolerate.

Yell at the government all you want, but don’t break other people’s stuff while you’re doing it.

A reasonable government approach to this case would have been simple — figure out who actually broke things and actively planned to do the breaking, then go after those people. Maybe you’d wind up with a dozen or so truly bad actors that you could proudly prosecute as an example of what free speech in this country does and does not mean. I would have backed such a prosecution, and I suspect that most people in the country would have as well. We live in a time where the heckler’s veto is becoming increasingly prominent, and there is no worse heckler’s veto than physical violence or physical destruction.

But that’s not what the government did in this case.

Instead, led by my former colleague, Assistant United States Attorney Jennifer Kerkhoff, the government proceeded to indict, on felony charges, more than 200 protestors, the vast majority of whom were peaceful. The government’s theory was preposterous from the start — that simply by walking down the street and chanting, then failing to withdraw when given a dispersal order, the protestors were joining a conspiracy to riot and engage in the destruction of property.

Keep in mind that virtually everything that happened that day was caught on video — so the government charged scores of people that it knew, to an almost metaphysical certainty, had engaged in no violence or property damage whatsoever. (In the interest of full disclosure, I should note that my firm represented one of those peaceful protestors. His case was dismissed in January, along with that of more than 125 others, shortly after a new U.S. Attorney took control of the Office.)

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The government’s aggressive approach has resulted in humiliation after humiliation for Kerkhoff and her team. In December of last year, they lost the very first trial in the case, which was masterfully defended by a team of fantastic lawyers, including Sara Kropf and Steve McCool. After hearing four weeks of testimony, the jury took only two days to completely acquit all six defendants.

Then came the January dismissal of more than half of the people who were originally charged in the case, with a promise to try only (!) the 59 remaining defendants who had, the government alleged, played a significant role in the planning and execution of the protest.

But the culling, which should certainly be applauded, does not appear to have helped the government’s cause.

The latest blow came yesterday, when the Chief Judge of D.C. Superior Court dismissed, as a sanction for what appears to have been an intentional Brady violation, all conspiracy charges against the latest group of defendants set for trial (seven people in all). That means that the government is left with only misdemeanors — which, unfortunately, I suspect it will still try to pursue.

Throwing out every single felony charge in a case is a big deal. So why did the Chief Judge do it?

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Because the government appears to have misled the court about both edits it made to a crucial video it gave the defense and about how many videos it actually had.

Here is what the government told Judge Morin in April after the defense moved to compel the supposedly unedited video, arguing that they could tell it had been edited (emphasis mine):

We provided to defense counsel the video. The only editing that was done by my office was at the very beginning of the video, and it recorded in segments, and I’m not sure why, if that’s how the button camera was recording. That’s common with cameras that it records in segments. At the very beginning, it shows an individual who’s wearing the camera in the bathroom. It shows their face. We cut that part out, and then provided everything else to defense counsel. We did crop out the undercover officer’s face, which is after the communication of planning meeting. The camera pans around and you can see him, and the defense has the exact video we have.

As it turns out, the “editing that was done by my office” went a little further than that. Specifically, it excluded the following statement by the government’s own undercover officer, regarding who he thought knew about what was about to happen (emphasis mine):

I was talking with one of the organizers from the [Industrial Workers of the World] and I don’t think they know anything about any of the upper echelon stuff.

Here, in other words, you have a government agent saying, “I don’t think some of these people knew what was being planned.” The government, in a case that was largely about the planning, then saw fit to edit that statement out — and try to hide that edit from both the defense and the government.

But wait, there’s more!

(No, really, it gets even better.)

The government had also previously told Chief Judge Morin that it had obtained only a single, secretly recorded video from James O’Keefe’s Project Veritas, which is the one it turned over (and, as just noted, edited without telling the defense about that).

On Wednesday night — the night before yesterday’s status hearing — the government disclosed for the first time that, in fact, Project Veritas had actually turned over more than one video.

Two? (Two wouldn’t be that bad.)

Not two.

Three? (Three would be bad, but that’s only two more than one, so it wouldn’t be terrible.)

Not three.

Four? (Please don’t say four. Four gets kind of hard to explain. These videos can be pretty long.)

Not four.

Sixty-six. (Plus three audio recordings, bringing the grand total to the you-can’t-make-this-stuff-up number of 69.)

Chief Judge Morin was not amused. According to the Washington Post, he accused the government not of making an honest mistake, but of intentionally misleading him:

“It was intentional. Your office represented there was only one video,” Morin said. “The government has not offered any explanation as to why they did not inform the court of these additional videos.”

According to the Huffington Post, Chief Judge Morin also called the government’s actions a “serious violation” that was “not explainable to the court.”

I’ve tried cases in front of Chief Judge Morin; he is smart, scrupulously fair, and does not lightly throw around phrases like “serious violation.”

This is very bad for the government. Potentially OPR bad and bar-discipline bad.

And none of it had to happen. This mess was of the government’s own making, and it is a case study in the perils of overreaching. A tightly focused case against only the most culpable defendants would have almost certainly succeeded and have avoided all of these problems. The government’s discovery burdens would have been much easier to bear, and the cases would have been far easier to try.

Instead, the government wildly overreached — and may now pay a heavy price for that decision.

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