Prosecutor Jennifer Kerkhoff owns a singular distinction: She’s the only Assistant United States Attorney to have a punk album named for her—Now That’s What I Call Kerkhophony V.1.
Kerkhoff earned that distinction from being the prosecutor in charge of the J20 trials—the series of proceedings that will decide the fate of dozens of demonstrators arrested during protests of Trump’s inauguration on January 20, 2017. Nearly 200 people were charged with felony riot and destruction of property, charges that carried up to 60 years of prison time—even though in many cases, there seemed to be no evidence that individual protesters had actually damaged any property. As The Nation put it last year, “merely being at the protest was a crime.”
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In December, the first batch of defendants was acquitted, but 58 defendants remain charged and will face a judge and jury in at least nine more trials; jury selection for the next of these is scheduled to begin Monday.
The defendants’ supporters are concerned that each trial is a platform for the prosecution, in effect using the court to stack the odds against the later defendants.
“Theirs is the most nefarious narrative,” said Jude Ortiz, chair of the National Lawyers Guild’s Mass Defense Committee, which trained many of the legal observers who were in DC on January 20 to witness law enforcement’s engagement with the protesters. “In their press releases, all their filings and statements in court—the defendants were all in a conspiracy to riot and destroy property, everyone’s involved and equally responsible, and everything about political protest is criminal activity.”
Denver civil rights attorney Jason Flores-Williams was a legal observer at the demonstration, but was disqualified from representing arrested protesters because the court saw this as a conflict of interest. In his view the prosecution means to send an even more pernicious message, which is that protest of the sort that the defendants engaged in is prohibited full stop. “You can engage in the veneer of dissent,” said Flores-Williams, “or in the facade, but if you engage in actual dissent, and say no to business as usual, then we’re going to crush you and send a crushing message to others so they don’t follow your lead.”
Flores-Willians thinks the fact that the defendants are facing conspiracy charges is telling, and could have a chilling effect on speech. “The important aspect here is that they’re going after fundamental associative rights. They implant the idea in the minds of the citizenry that even to discuss dissent or even ‘like’ a dissenting comment on Facebook can lead to prosecution. When that happens, democracy dies.”
But unlike the first trial, where the government admitted that none of the defendants had personally destroyed property or planned to do so, some of these defendants have been specifically named as window-breakers at Starbucks and the Bank of America.
“These defendants are in a different posture,” explained Brett E. Cohen, defense attorney for one of the acquitted defendants from the first trial. “Their attorneys are going to have a different challenge. I don’t know if the government has enough to make the jump between what’s on the videos and the people who were kettled and arrested. But we know from talking to the jury, even though they didn’t buy the government’s arguments, they were impressed with the production; it was very well done.”
Kerkhoff’s office declined to comment for this article.
At the same time the J20 trial is going on, the DC branch of the ACLU is bringing a lawsuit on behalf of six plaintiffs, including two J20 defendants, that alleges police misconduct including “manual rectal jabbing” and other excessive force in the chaos of Inauguration Day. One plaintiff, a ten-year-old boy, was allegedly knocked down when a policeman charged without warning; the crowd, including the boy and his mother, also a plaintiff, was pepper-sprayed as they fled the melee.
In March, the government moved for dismissal of the suit, a motion the ACLU must answer in the next two weeks.
“They’ve thrown the kitchen sink at us and we’re responding as necessary,” Scott Michelman, lead counsel on the suit, told me. “We don’t do things lightly, and we’re prepared to defend our legal theory.”
When Kerkhoff dropped the charges against 129 people in January, a month after the first jury rejected her collective guilt argument, she announced that she would focus on charging people who had personally committed crimes.
But Michelman and others doubt all 58 of the remaining defendants were involved in property destruction. One of those defendants is Elizabeth Lagesse, who is also a plaintiff in the ACLU suit; her lawyers have requested charges be dropped against her. “In their motion they raised the possibility that she’s being put through the wringer of a criminal prosecution as retribution for being a plaintiff in our suit,” Michelman explained.
Months ago prosecutors offered her a plea deal to collapse her felonies into a single misdemeanor. Unwilling to plead guilty to something she did not do, she refused and is prepared to face trial on June 25 if her motion to dismiss is not granted.
Flores-Williams likens the trials to the witch hunts of the McCarthy show trials in the 1950s and the Chicago 8 trial in 1969, where the defendants were charged with conspiracy to cross state lines to incite a riot at the Democratic National Convention.
“Conspiracy charges are antithetical to the core values of the first amendment,” Flores-Williams said. “The judges should have said ‘no, we’re not going to allow you to prosecute citizens in a time when protest is critical to our country. Go back, do your work, bring these charges in a responsible way.’”
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