Editor’s note: In January 2017, Aaron Cantú spent a night in jail with hundreds of others detained during protests on Inauguration Day in Washington, D.C. His “criminal” actions consisted of walking, wearing black, and being a witness to history as a freelance journalist. A few months later, federal prosecutors charged him with eight felonies, including conspiracy to riot. After nearly eighteen months, the feds dropped the charges, and Cantú, now a staff writer for the Santa Fe Reporter, is finally able to publicly reflect on the ordeal.
For over a year, federal prosecutors and agents have perused my digital communications, tried to hack my cell phone, and possibly collected my social media records.
I’m not being paranoid. This really happened. The feds invaded my life in pursuit of their own conspiracy theory about a raucous protest in Washington, D.C., that resulted in eight felony charges against hundreds of people, myself included.
The overwhelming sense of being watched has abated some since the charges were dropped in early July, but I’m sure officials within the U.S. Attorney’s Office for the District of Columbiathe local arm of the Trump Justice Departmentwill read every word of this essay with an eye toward anything they can use to prosecute me or the 186 people still living under a five-year statute of limitations.
A few weeks after my arrest on January 20, 2017referred to as J20I accepted some painful advice: Don’t criticize the Trump administration publicly. I’d hoped that my charges would get dropped before my eventual indictment in May. The inability to speak freely on social media and in the publications I wrote for drained my confidence; I still reflexively self-censor, often deleting tweets for no real reason. Even writing this is hard. This pounding in my chest, this trembling hand and sour stomach and sweaty tunnel vision are what it feels like to have your freedom of speech curtailed by the state.
I went to D.C. to report on Trump’s inauguration, following a year of a bubbling anti-fascism movement pushing back against his campaign. I currently enjoy the haven of a newspaper willing to hire lawyers to bite back, but last January I was a freelancer using vacation days from my full-time job to go witness history. This was a completely uncharted assignment: How violent could this get? Would American jackboots try to stomp me in the streets?
In the end, it didn’t matter that I presented myself as a journalist on J20 or that I only carried a sandwich and a notebook: White supremacists wound up messing with me for over a year, working with authorities to prosecute and harass me.
After eighteen months, the actual memories of the half-hour march leading to my arrest have mixed with dreams and nightmares of the day, as well as descriptions in multiple indictments, trial transcripts, and media reports. My mind’s eye remembers a dark funhouse of corporate buildings and unusually waifish, Jack Skellington-esque riot cops hemming me into a larger group. Everything looks gray and morose; it may have rained a bit. Police relentlessly deployed sting-ball grenades and pepper spray; the final tally was at least seventy grenades thrown at people blocks away from where Donald Trump was sworn in. Creaks and shatters created by objects smashing glass, including the insured windows of a Bank of America branch and a Starbucks, are more memorable than any destruction my eyes may have seen. Very, very loud police sirens, punctuated by grenade explosions and screaming, overwhelm everything else.
“The inappropriate and extensive use of less lethal munitions suggests the need for increased supervision of officers during mass demonstrations,” said a report from the Police Foundation, which evaluated the D.C. Metropolitan Police Department’s conduct at the inauguration protests.
Impossible to forget are the feelings throughout that march: the whole-body nerve rush when I first saw the huge mass of marching people extending at least a whole city block; the panic run as the sting-ball grenades burst near my feet; the euphoria of an ungovernable moment, however frightening and unpredictable, that disrupted the lawful monotony binding our unequal social system together; and the shock when I checked my phone from inside the mass arrest and saw that protests in D.C. had overtaken Trump’s inaugural speech as the top headline on CNN.com.
If protesters weren’t able to stop the actual inauguration, they still marred it in history.
When the first six of more than two hundred defendants went to trial last November, prosecutors used expressions of excitement, wonder, or awe during the march as evidence of a conspiracy to riot. “I’m fucking blissed out,” photojournalist and acquitted defendant Alexei Wood announced in a livestream that day. The feds later tried to use it against him. In an identical indictment filed against all defendants, prosecutors also used shouted phrases like “Fuck it up,” “Fuck capitalism,” and “Whose streets? Our streets!” to transform an adrenal impulse into a criminal agreement among coconspirators.
The thought that I might be seriously screwed first occurred to me inside the police wagon transporting us to be processed. I sat cramped and bound along with nine other people in one of a half-mile’s worth of law enforcement vehicles flashing various hues of light, as if carrying high-priority enemies of the state. I knew then we weren’t going to get off with a simple citation. I didn’t expect, however, that I would be charged with eight felonies for the act of attending and reporting on a confrontational protest, or that I would be facing a potential eighty years in prison.
Months later I not only considered my own future, but the far-reaching political implications of these cases: Why did the U.S. Attorney’s Office find it appropriate to hang virtual life sentences over the heads of 214 people after an indiscriminate mass arrest? How could they have so shamelessly gleaned evidence from far-right groups like Project Veritas, a discredited organization known for making deceptive gotcha videos, as well as the paramilitary group the Oath Keepers, and still felt they had a legitimate case? And where was the motivationthe conspiracyto pursue these charges coming from?
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Mass arrests at protests have happened plenty of times across the country, including in D.C. in 2002 when hundreds at a World Bank protest were arrested. What appeared new in the J20 case was the attempt to color protesters’ actions as part of a pre-planned conspiracy between strangers to cause mayhem.
By wrapping up distinct actions like allegedly breaking windows, chanting, and lighting fireworks at a protest into a single conspiracy, they became one threatening, anti-social act against society, apparently menacing enough to warrant decades in prison. The motive to bust a conspiracy also explains the Justice Department’s initial demand last summer to review 1.3 million IP addresses of people who visited DisruptJ20.org, a website used to organize loosely affiliated protests that took place at the inauguration. Despite an outcry from the media and civil rights groups, the court eventually granted much of the prosecutors’ request, yet they could find no actual conspiracy.
This data-vacuuming extended to the cell phones that all arrestees were carrying that day. The Metropolitan Police Department used technology from an Israeli security firm to extract information from all confiscated phones that weren’t sufficiently encrypted. After one anonymous defendant’s phone was raided, the defendant received an eight-thousand-page dossier containing years of personal data, including “intimate emails to and from my friends and lovers through more than a decade, [late] night political debates over chat apps that helped shape my values and convictions,” and more.
To my knowledge, the feds were never able to crack into my phone thanks to strong encryptionthough they made clear that they were specifically interested in me, declaring in one motion from last October that they were undertaking “additional efforts” to get my data. But I was sufficiently terrified by other fishing expeditions, including subpoenas issued to Apple, Facebook, and possibly Twitter for communications between and among codefendants. I never received a notice from any of these companies that my accounts had been subpoenaedapparently, they do not have to notify you or can be gagged from doing sobut others did, and I still treat my online presence as if it’s bugged.
All this reaching by the prosecution turned out to be for naught. Although assistant U.S. attorney Rizwan Qureshi mumbled to an unbelieving D.C. jury at the second and only other trial of defendants that there had been a conspiracy to “destroy your city,” it was never proven. That trial this May ended in acquittals and mistrials, after the first resulted in acquittals last December. The pair of failures set the stage for the collapse of the case in its entirety, letting the few dozen remaining defendants go free.
The second trial took place at the D.C. Superior Court where, in another room, a chief judge determined that assistant U.S. attorney Jennifer Kerkhoff had intentionally misled the court about the existence of nearly seventy videos recorded by Project Veritas operatives at protest planning meetings ahead of the inauguration. The operatives handed over the surreptitiously recorded videos to a D.C. detective, Greggory Pemberton, who would spend an entire year investigating the J20 case. Defense counsel later discovered personal tweets sent out by Pemberton indicating his sympathies with the racist pro-Trump digital underbelly, and used them to undermine his testimony at trial.
According to a recent filing from former defendants, the withheld videos “cut against the theory that the … meeting was an exclusive, secretive meeting to plan unlawful conduct.” The sixties-era stereotype of violent leftists whispering clandestine plans was part of the narrative prosecutors tried to create, and they went as far as lying in open court to preserve it.
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This isn’t the first time that authorities in D.C. have hunted for clues of a conspiracy post-riot. After the city’s black residents rose up following the murder of Dr. Martin Luther King Jr. in 1968, the feds wanted to know who, if anybody, had orchestrated the chaos, and whether similar uprisings in more than one hundred cities had been part of a revolutionary conspiracy to overthrow the white American system.
Stokely Carmichael, then the leader of the Student Nonviolent Coordinating Committee, emerged as a primary suspect. Shortly after King’s murder, Carmichael told a radio host from Havana, Cuba, that it was “crystal clear [that] the United States of America must fall in order for humanity to live, and we are going to give our lives for that cause.” But no conspiracy indictment was ever filed against Carmichael, or anybody else. The fact that conspiracy charges were filed for so many in the J20 case illustrates how much prosecutorial aggression has advanced over the last half-century.
Some in radical circles have called attention to the white privilege of the J20 defendants, arguing that by virtue of their whiteness (or, for the minority of nonwhite defendants, their proximity to that pool of privilege), defendants had access to platforms, sympathy, support networks, and resources that most low-income and nonwhite defendants lack, and that these advantages were hugely responsible for our success. I mostly agree.
It is also true that the entire legal premise underpinning the felony charges filed against each of us was steeped in the U.S.’s centuries-long defense of white supremacy. The anti-rioting statute under which we were charged, which calls for a maximum sentence of ten years, was passed in 1967 by Congress in the wake of black urban uprisings in that decade. Prosecutors used it against black D.C. residents the following year.
But the connection goes deeper.
The unifying legal theory of our prosecution was that we engaged in a conspiracy, and were, therefore, each equally liable for all property destruction or injury that occurred that day. This theory of liability stems from a mid-twentieth-century Supreme Court decision in a moonshining and tax evasion case, but conspiracy law’s modern origins extend to the founding of this country and beyond as a legal weapon of colonialism and counterinsurgency, primarily against black revolt.
At the end of the 1600s, as the population of enslaved Africans in America grew, “the more encompassing category of ‘whiteness’ ascended,” writes Gerald Horne in Counter-Revolution of 1776, in which Horne argues that the Anglo-Saxon settlers’ war for independence entrenched slavery. By 1680, one colonial legislature had drafted a bill “to prevent Negroes’ insurrection,” and this was followed by a torrent of similar anti-conspiracy legislation in the colonies over the next several decades in response to planned and executed rebellions.
Elite settlers threatened by the growing population of Africans saw the creation of pan-European solidarity in the colonies as necessary to gird against constant revolts. Key to the eventual supremacy of the concept of whiteness, Horne writes, was that it not be interrogated too hard, lest “the loose threads of class hierarchy that this racial category otherwise obscured” unravel and ruin the entire colonial project.
This gets to the heart of the matter: In order for the colonies to overcome endless conspiracies to revolt by people they kidnapped, enslaved, exploited, and colonized, its ruling elite had to create their own conspiracythe institutionalization of “whiteness”in defense of its power.
The Bill of Rights would later implicitly enshrine the three points of power in the new nation, including whiteness, property ownership (wealth), and cis-hetero maleness, consolidating ruling-class power through the law. Writing for the Harvard Law Review nearly a century ago, Francis B. Sayre wrote that American courts often use conspiracy law as a cudgel, “especially during times of reaction, to punish, as criminal, associations for which the time being are unpopular or stir up prejudices of the social class in which the judges have for the most part been bred.”
It’s more than just prejudice: Today the U.S. elite reaffirms its power through law, war, trade, and politics daily, in a coordinated effort to preserve the status quo in all its structural inequality. This extreme and concentrated power is its own kind of conspiracy, one that allows the state to persecute others it considers illegal. There isn’t enough room here to chronicle the ways conspiracy law has been used since the seventeenth century to criminalize associations of nonwhite people, laborers, immigrants, protesters, revolutionaries, and others, or to consider nuanced exceptions, such as mafia prosecutions that rope police and politicians into criminal rackets.
But fundamentally, the difference between a legitimate and illegitimate conspiracy comes down to power.
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It’s ironic that some top Trump cronies involved in the J20 conspiracy prosecution are themselves caught up in their own high-profile conspiracy cases, though not necessarily as defendants.
For example, Roger Stone, the long-ago Nixon “ratfucker” and more recently a top campaign adviser to his friend Trump, sent far-right spies to inauguration protesters’ planning meetings as far back as December 2016. Stone was referenced in a July indictment against a dozen Russian intelligence military officials as a “senior member of [Trump’s] campaign” in direct contact with Russian hackers targeting the 2016 presidential election.
Another is Attorney General Jeff Sessions, the top official overseeing the J20 conspiracy prosecution. In March 2016, Sessions was beckoned in an email sent to Trump campaign official Rick Dearborn from Republican activist Paul Erikson, who wanted to arrange a meeting between Trump and Vladimir Putin. A criminal complaint unsealed in July claims Erikson was manipulated by a Russian operative named Maria Butina to gain access to top Republicans.
In another twist, the J20 defendants may have been saved by prosecutors out of the U.S. Attorney’s Office turning their attention to Butina’s conspiracy prosecution.
To this day, neither Sessions nor any prosecutors from the U.S. Attorney’s Office in D.C. have spoken publicly about J20. While prosecutors don’t often comment publicly on their cases, this could have been the perfect chance for this Justice Department to trumpet its law-and-order bona fides, which makes its silence striking.
Instead, prosecutors showed their ass in court, just as the authoritarian Trump presidencyin everything from the Russia meddling case to the overt embrace of white supremacy to the attacks on the pressis showing the country’s ass to the world right now.
The power structures animating U.S. life are themselves the result of long-running conspiracies, and, to update Horne’s analysis, the American project is being intensely interrogated in this moment. History shows that when a state’s ability to present itself as a stable force for social order wanes, illegal conspiracies begin to sprout.
That’s not what happened at the J20 protests, but it would be ahistorical to think it wouldn’t happen somewhere elseor that a journalist wouldn’t be there to cover it.
