The Department of Justice has been humiliated in its misguided prosecution of over two hundred Inauguration Day protestors.
It has lost every single case to go to trial. It has engaged in intentional violations of the rules. And it has cost taxpayers hundreds of thousands of dollars along the way.
The DOJ should cut its losses now and dismiss the rest of the cases.
On January 20, 2017, hundreds of protestors gathered at Logan Circle to protest the new administration. Along the route, a handful of the protestors engaged in property destruction ranging from exceedingly minor (dragging newspaper dispenser boxes into the street) to serious (breaking large plate-glass windows). The police eventually surrounded the protestors and arrested the remaining 234 people.
Arresting people is one thing. That’s on the police. Charging them with multiple felonies is another. That’s on the prosecutors.
It’s worth noting that the United States Attorney’s Office for the District of Columbia is generally well regarded among both prosecutors and defense counsel. It’s full of smart, dedicated prosecutors.
But it has spent the last 18 months wasting an incredible amount of resources prosecuting these defendants.
Consider the financial costs:
- the salaries of the prosecutors and staff who have worked on the case;
- the salary (and overtime pay) for the experienced homicide detective who devoted his hours to sitting in a room reviewing video evidence;
- the payments for court-appointed counsel to represent many of the defendants;
- the salaries and expenses of the prosecutors’ IT department to process vast amounts of video evidence;
- the salaries of judges and law clerks who oversaw the cases.
The list goes on and on.
There are also non-financial costs too. Many private law firms represented clients pro bono. Consider how all of those pro bono hours could have been spent helping indigent parties navigate the court system. Or the murders that the homicide detective could have solved. Or the backlog of civil litigants in the D.C. Superior Court who could have had their day in court if the judges weren’t spending their time sorting through this complex case.
Then there are the lives of the defendants themselves. Lives that were ripped apart by these charges, apparently without any regard as to whether the government could actually win the case.
I represented a client in the first Inauguration Day protest case to go to trial last year. The jury found all six defendants in that trial not guilty of every charge. My client was an oncology nurse who was forced to give up her job helping peoples so she could travel repeatedly to the District to deal with the myriad hearings and preparation for trial. Imagine what she could have done for that year for her patients instead of dealing with this case.
All these costs add up. And for what?
So far, the DOJ has won nothing at trial. Nothing.
Our trial started in November 2017. The jury acquitted all six defendants of every charge. The government then dismissed 135 other defendants, no doubt realizing that it couldn’t possibly convince a jury that people who were only protesting were not guilty of a crime.
The other defendants who have gone to trial have had their charges dismissed because of the prosecutorial misconduct described below, have been acquitted or have won a mistrial when the jury could not reach a verdict.
There are almost too many problems to count with these prosecutions. Here are three of the biggest problems:
First, the prosecutors egregiously misread the jury pool in the District. Our residents see protests every week, but the government seemed to think they could convince the jurors to ignore the line between heated protest and criminal rioting. The First Amendment was irrelevant to the Department of Justice.
Second, the hard work and persistence of defense counsel uncovered clear evidence of prosecutorial misconduct. The judge overseeing the cases found that the government had intentionally failed to disclose many videos it had obtained from the right-wing organization Project Veritas, as required by law. “I do think it’s a serious violation,” said the chief judge of the court. My friend Justin Dillon (a former prosecutor himself) wrote a great piece about the Brady violations here.
Third, there was not just misconduct but overreach. Much ink has been spilled about the unchecked power of prosecutorial discretion. This case presents a classic example. The total property damage here was fairly minimal but the government charged each defendant—no matter her role—with multiple felonies. The government could have charged them with misdemeanors rather than felonies that exposed everyone to serious jail time. That overreach backed the defendant into a corner. Trial was less risky than the collateral consequences of a felony record. The only option was to fight.
It’s impossible to analyze the internal dynamics are within the U.S. Attorney’s Office that allowed these cases to go this far. The United States Attorney Jessie Liu should press pause on these cases and consider whether continuing to bring these cases to trial is a wise decision. It has been a humiliating run for her office. The short-term embarrassment of dismissing the remaining cases—and admitting defeat—is far better than wasting precious resources on a losing fight.
In Berger v. United States, the Supreme Court wrote that the government’s interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done.” So far, the government has sought only to win. It’s time to do justice.