Editor’s note: When Aaron Cantú arrived at his new job at the Santa Fe Reporter last year, he came with the baggage of a recent arrest. Two months earlier, he spent a night in jail with hundreds of others detained during protests on Inauguration Day in Washington D.C. His actions consisted of walking, wearing black and being a witness to history as a freelance journalist. Yet, a few months later, and despite having no clear evidence of such crimes, federal prosecutors slammed him with eight felony charges, including conspiracy to riot and property damage. After nearly 18 months, however, the feds dropped the charges. Cantú is finally able to publicly reflect on the ordeal, and what follows is an essay that puts a real conspiracy into context.
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. The chill of seeing the state in possession of your private political discussions is difficult to convey. 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, myself included.
The overwhelming sense of being watched has abated some since the charges were dropped, but I’m sure people within the United States Attorney’s Office for the District of Columbia — the local arm of the Trump Administration’s Justice Department — will read every word of this essay, with an eye for anything they can use to refile criminal charges against me or the 186 people still living under a five-year statute of limitations.
A few weeks after my arrest in Washington D.C., on Jan. 20, 2017 (J20), I accepted some painful advice: Don’t criticize the Trump administration publicly. At that point, I was hoping for my charges to 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 though my charges have gone away, 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. with several other journalists to report on Trump’s ascent, following a year of bubbling anti-fascism against his campaign. I currently enjoy the haven of a newspaper willing to hire lawyers who bite back, but in January 2017, 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 whether 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 anyway for over a year afterward by working with authorities to prosecute and harass me. I pitched a dispatch soon after getting released from jail, but pulled it for legal concerns.
After 18 months, the actual memories of the half-hour march leading up 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 70 grenades thrown at people blocks away from where Donald John Trump was sworn in as the 45th U.S. president.
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 recent report from the staid Police Foundation, which evaluated the Metropolitan Police Department’s conduct at Inauguration Day protests.
Impossible to forget are the feelings throughout the march: The whole-body nerve rush when I first saw a 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 violently 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 over 200 defendants went to trial last November, prosecutors used expressions of apparent 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 from the march that day. The feds later tried to use it against him in court. In an identical indictment filed against all defendants, prosecutors also used randomly shouted phrases like “Fuck it up,” “Fuck capitalism,” and “Whose streets? Our streets!” to transform an adrenal impulse into a criminal agreement among riotous co-conspirators.
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 half a 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, and that I was probably going to have to tell my mom. 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 combined 80 years in prison for these charges.
Months later I not only considered my own future, but the far-reaching political implications of these cases: Why did the United States Attorney’s Office for the District of Columbia 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? Where was the motivation — the conspiracy — to pursue these cases coming from?
Mass arrests at protests have happened plenty of times in cities across the country, including D.C. in 2002 when hundreds at a World Bank protest were arrested and later lavished with civil settlement money. 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 masses of 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 called Cellebrite to extract information from all confiscated phones that weren’t sufficiently encrypted. After one anonymous defendant’s phone was raided, the defendant received an 8,000-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. The horror of a hostile state downloading a record of your developing identity reaching back to early teen years is a possibility unique to millennials and later generations that grew up on the internet.
To my knowledge, the feds were never able to crack into my phone thanks to strong encryption — though 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 co-defendants. I never received a notice from any of these companies that my accounts had been subpoenaed — though apparently, they do not have to notify you or can be gagged from doing so — but others did, and I still treat my online presence as if it’s bugged.
All this reaching by the prosecutor’s office 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,” this was never proven. That trial in May ended in acquittals and mistrials, after the first resulted in total acquittals last December. The pair of failures set the stage for the eventual 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 70 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. police 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 ’60s-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.
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 April 1968, resulting in $27 million ($193.4 million today) in damages, the feds wanted to know who, if anybody, had orchestrated the chaos, and whether similar uprisings in over 100 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 after a mere $100,000 in damage illustrates how much prosecutorial aggression has advanced 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 with this analysis.
It is also true that the entire legal premise underpinning the multiple felony charges filed against each of us was steeped in the United States’ centuries-long defense of white supremacy. The anti-rioting statute under which we were charged, which calls for a maximum sentence of 10 years if convicted for rioting where serious injury or at least $5,000 in property damage occurs, was passed in 1967 by Congress in the wake of black urban uprisings in that decade. Prosecutors used the new statute 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-20th 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 in the founding of the American state.
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 The Counter-Revolution of 1776, where 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 by African people and their sometimes-allies: European servants and Native Americans resisting invasion.
One of the most famous pre-1776 conspiracies was the New York Conspiracy of 1741, in which prosecutors accused black enslaved people and poor whites of conspiring to burn the city and overthrow the colonial governor. The colony’s narrative, as established by a fire-breathing judge named Daniel Horsmanden, was that a multiracial group held secret meetings at a white-owned tavern for months before setting fire to the governor’s home, a church and horse stables in wealthy white neighborhoods. Four white and 30 black people were sentenced to death for their alleged role in the plot, and an additional 70 enslaved Africans were exiled from the colony.
At the trial, which took on the sort of puritanical zeal legible in the J20 case, the prosecution coerced witnesses into affirming the judge’s racist belief that the “conspiracy was of deeper design” and “more dangerous [a] Contrivance than the Salves [sic] themselves were capable of.” The most serious transgression, in the law’s eyes, was the conspiracy of comradeship between whites and blacks against colonial rule. After all, it had only been a few decades since “whites had achieved a sense of race solidarity at the expense of blacks” in some of the colonies around 1700, according to contemporary historian T.H. Breen.
Elite settlers threatened by the growing population of Africans saw the creation of pan-European solidarity (i.e., “whiteness”) in the colonies as necessary to gird against constant rebellions. 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 conspiracy — the 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 which 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 17th century to criminalize associations of nonwhite people, laborers, immigrants, protesters, revolutionaries and others, nor 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.
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 federal 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 Jefferson Beauregard Sessions III, the top official overseeing the J20 conspiracy prosecution. In March 2016, Sessions was beckoned in an email sent to Trump campaign advisor Rick Dearborn from Republican activist Paul Erickson, who wanted to arrange a meeting between Trump and Vladimir Putin. A criminal complaint unsealed in July claims Erickson was manipulated by a Russian state 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 in D.C. turning their attention to Butina’s conspiracy prosecution.
To this day, neither Sessions nor any prosecutor 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, especially when they lose, this could have been the perfect chance for this Justice Department to trumpet its law-and-order bonafides, which makes its silence striking. Instead, prosecutors showed their asses in court, just as the authoritarian-leaning Trump presidency — which includes the Russia meddling cases, the overt embrace of white supremacy, the attacks on the press, the ultra-nationalism and everything else — is 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 else — or that a journalist wouldn’t be there to cover it.
This article first appeared in the Santa Fe Reporter.
