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Prosecutors Invoke Union Membership To Criminalize Inauguration Day Protesters

In prosecutions against Inauguration Day protesters, the government contends some of the defendants’ union memberships qualify as evidence of a conspiracy to commit a crime.

Hundreds of thousands of protesters converged for the Inauguration Day protests in 2017. One of the demonstrations, an anti-capitalist and anti-fascist march dubbed Disrupt J20, commenced in Logan Circle before heading out into the streets. Protesters marched in the streets carrying banners and signs, and chanting against Donald Trump. During the march, a handful protesters broke off from the main group and smashed the windows of a few store fronts, including a Starbucks.

Police, who monitored people involved in the protest for months before the demonstration, responded indiscriminately with stingball grenades and a deluge of pepper spray. Over 200 people were kettled, including protesters, journalists, legal observers, and street medics.

The first of nearly two-dozen trials over property allegedly damaged during the protests started in November last year, ending in sweeping acquittals for six defendants just before Christmas. After acquittals that month, the government dropped charges for all but 59 of the defendants.

The government’s communications to the press state the logic behind this decision: To focus on the “core group that we believe is most responsible.” Yet in all of the government’s proceedings in what is known as the “J20 trials,” Assistant United States Attorney Jennifer Kerkhoff admitted she has already identified at least 12 individuals she thinks broke windows at the protest.

For the rest of the defendants, the government invoked Washington D.C.’s Riot Act, a law that was used against demonstrators who protested following the assassination of Martin Luther King in 1968. The law has not been used against protesters in D.C. since those demonstrations.

So why do so many individuals still face trial?

“They’ve offered no real context or reasoning,” said one defendant in an interview for VICE. All of the arrestees have had their phones confiscated, and their messages and emails scrutinized by the prosecution. The only common element between some of them is their union membership with the Industrial Workers of the World (IWW), whose members are commonly called Wobblies.

Isaac Dalto, a Wobbly and J20 defendant, talked to Shadowproof about the case against him and his fellow workers in the union.

The IWW organizes units across the country called “General Defense Committees,” whose stated objectives are to “promote, through organization, action, and outreach, a mass, non-sectarian defense of the [working] class.” Dalto said he was involved with his local General Defense Committee (GDC) as plans for the J20 march were in motion and was caught up in a sting operation carried out by Project Veritas, the notorious right-wing entrapment group that received funding from The Donald J. Trump Foundation.

Project Veritas is known for recording liberals and leftists undercover, then heavily editing the footage to manufacture a misleading image of their targets. The project infiltrated a planning meeting for Disrupt J20, where Dalto and some of his peers announced a picket training with the GDC. Some members of the GDC and IWW acted as marshals during the march.

Video of the meeting, although doctored, was a key piece of the prosecution’s evidence against the defendants in the first trial last year. “We’ve seen otherwise normal fixtures of a protest used in court as if they were evidence of conspiracy, or that there’s something nefarious about them,” Dalto added.

Dalto contended a lot of organizing activities, “which are kind of standard, basic things that happen before literally every demonstration, have been twisted and used by the prosecution as evidence of this ‘criminal conspiracy.’”

After his arrest, emails from his GDC list, GDC meeting minutes, and the by-laws of his GDC local were taken from Dalto’s seized cell phone and entered into evidence. One of his peers had their IWW membership card confiscated and entered into evidence after their arrest as well, according to Dalto.

In the first J20 trial, Kerkhoff attempted to argue that the presence of widely practiced protest infrastructure could constitute evidence of a conspiracy to commit a riot. To support her argument, she presented first aid supplies from two of the street medics arrested, jail support forms (which inform the police of your medical needs in the event you are arrested), and messages exchanged with other marchers with the intent to help them find each other.

The jury rejected the notion that these elements of protest, which are recommended by the National Lawyer’s Guild as a matter of policy, could support this theory of a conspiracy to riot. However, the government seems prepared to pursue a similar strategy, this time by implying that unions are the infrastructure on which an alleged conspiracy rests.

Such an approach directly criminalizes union membership.

“It’s a really, really disturbing trend in this case,” Dalto asserted. This “hearkens back to the Green Scare of the early 2000s, the Red Scare of the McCarthy era, and the First Red Scare during the Palmer Raids, when the state first attacked our union.”

Referring to historical periods of widespread political repression of anarchists and unionists, Dalto suggested, “This is a very clear case of political targeting, and because certain IWW members were part of the organizing for this event, anyone who is a member of the organization is now considered suspect.”

Gary Roland, an investigative reporter who has covered the J20 trials, tweeted that the prosecution “continuously” referred to a GDC local’s vote to “endorse” the march as evidence of conspiracy to riot. All of the defendants for that hearing were Wobblies, according to Roland

Sam Menefee-Libey, a member of the Dead City Legal Posse, a support group for the J20 defendants formed after the initial arrests, observed how Kerkhoff has used“a lot of anarchist vocabulary” when discussing the defendants. For example, a March 2017 D.C. Superior Court filing states, “Many of the defendants who participated in the events of [Inauguration Day] were organized into ‘affinity groups,’” a term sometimes claimed by egalitarian organizers to describe non-hierarchical structure.

“It’s clear that [the prosecution] has done some research into the contemporary anarchist movement, but it’s hard to know, when they’re invoking [those terms], what they really mean by it,” Menefee-Libey added.

It’s also unclear if Kerkhoff understands the nature of the GDC. During an April 6 hearing, a defense lawyer had to explain to the prosecution that the GDC is an established organization that has existed for over a century. Menefee-Libey concluded “[The prosecution] is criminalizing social networks, longstanding networks tied to both labor organizing and community self-defense.”

Chip Gibbons, an attorney for Defending Rights & Dissent, agreed. “There is an increased attempt to impose liability on civil society groups for supporting or organizing protests, especially environmental and labour groups. This could be viewed as part of that trend.” Gibbons argued.

Gibbons has covered the United States government’s history with the IWW and how the Espionage Act was abused to frame their protests at that time as treason during World War I. The J20 Trials remind him of that era. “It’s an assault on civil society, and it has many similarities to the way powerful interests manipulated the legal system to smash labor organizing before the New Deal.”

In September 1917, the Bureau of Investigation (precursor to the FBI) and local law enforcement agents raided every single IWW chapter in the nation and the homes of some IWW members. “Everything from office furniture to paper clips” was confiscated, according to labor historian Steven Parfitt.

Discussing the reason for the raids, a Philadelphia district attorney said at the time that the intent was “to put the IWW out of business.” The early IWW endured years of surveillance and raids, in large part because of their participation in the anti-war struggle and their militant labor organizing efforts.

More broadly, the U.S. government has sought to criminalize and repress anarchists and labor organizing since the turn of the century. After the end of World War I, the nation was in a panic over the presence of leftist radicals, bringing about the First Red Scare. Anarchist and communist immigrants were deported, and anti-communist and anarchist hysteria was rampant. Radical leftists endured another wave of mass repression during the Second Red Scare, when McCarthyism hit the U.S. in the early 1950s following the end of World War II.

In fact, the J20 trials are part of a broader trend of criminalizing dissent under the Trump administration.

“In the last year, 20 states have proposed laws limiting or restricting protest, [and] we’ve seen felony charges levied against water protectors in Standing Rock, as well as us,” Dalto recalled. White supremacists and neo-fascists have committed acts of violence and menaced communities under Trump, but they have not faced this kind of zealous prosecution.

Unions also face intensified threats under Trump. In December of last year, Trump’s National Labor Relations Board overturned five Obama-era protections for unions. These “business friendly” decisions were no surprise to labor rights advocates, given that Trump stacked the NLRB with conservatives and union-busters. More recently, the Supreme Court heard arguments for Janus vs. AFSCME Council 31, a case that could severely limit workers’ ability to unionize.

Despite a political environment that is particularly hostile to both labor and protest, organizers remain committed to the struggle for a prosperous working class.

“If the state wants a fight,” Dalto declared, “we’ll give them a fight. We survived the Palmer Raids, we survived McCarthy, and we’re going to survive this too.”

Elizabeth King & Siobhan O'Leary

Elizabeth King & Siobhan O'Leary

Elizabeth King is an independent journalist in Chicago, covering politics, activism, and news.

Siobhan O'Leary is an investigative journalist out of Alberta, Canada, focusing on justice and abuse of authority.