On January 20, 2017, 230 people were arrested while protesting President Donald Trump’s inauguration. More than 200 hundred faced felony charges under a federal riot statute.

A group of defendants were acquitted, and in January, prosecutors dropped charges against 129 people. However, 59 people still are charged with crimes.

Elizabeth King and Siobhan O’Leary recently wrote a feature story for Shadowproof about prosecutors invoking the union membership of defendants to further criminalize their activism. They placed the prosecutions in the context of a history of repression of dissent in the United States that includes the First Red Scare during the Palmer Raids, the Red Scare and McCarthyism, and the Green Scare of the early 2000s.

We asked O’Leary to share more of her thoughts on the cases, which are commonly referred to as the J20 cases.

A cloud of prosecution has hung over those facing charges after participating in protests on January 20, 2017. What has been the impact on activists, particularly in the D.C. area?

They’ve had to drop everything. They can’t participate in further actions while charges are pending so none of them are active in the scene they know they want to be in. Almost all had their careers and education entirely derailed.

Out-of-towners have had to move in to D.C. just to make attending their hearings practical. One person I spoke with still has a paralyzed finger from their arrest when the police cuffed them too tightly on inauguration day. And I’ve heard of dozens of relationships deteriorating from the stress.

It’s so hard to know what exactly you’re facing when the max is 61 years. It might end up being a few months. It could be the rest of your life. There is so much latitude in how this can play out, and that’s really drilling into people. Not knowing, not having the foggiest clue of what you’re really facing.

Prosecutors tend to conjure fantasies of violent radical extremism in cases against left-wing activists. To what extent has this happened in the J20 cases, and do you think it has worked?

Assistant United States Attorney Jennifer Kerkhoff is leaning as hard as she can into milking the media’s dramatic images of a “spooky antifa.” She is trying to relate the entire protest activity to a legal concept called the Pinkerton rule, which allows the law system to charge you with a crime for aiding and abetting the commission of that crime, even if you didn’t directly do it yourself.

Her theory is that the protest infrastructure aided and abetted the dozen-or-so folks who damaged property, [and that justifies] the ~1,600 charges pressed against ~230 people over six windows.

In terms of it working, we’ve only had one trial so far, and they were acquittals. But Kerkhoff is bringing in an expert witness to try and “explain the intent” of a black bloc to shore up her theory that all 47 remaining defendants who didn’t break property intended to aid the 12 who did.

Outside the case, I think the media has very effectively demonized anti-fascists. Few laymen seem to care that ~218 of those originally charged didn’t do anything except walk past a broken window. Because in their mind, “they shouldn’t have been rioting.”

That the line between a protest and a riot is both arbitrary and entirely up to the police is seldom of interest to them. More disturbing is that not enough folks care that the max they’re facing is 61 years. Even if I agreed that everyone in the protest did a bad thing, I would hope that people would at least question the proportionality of the charges. Alas, that is also rare.

Have any other parts of the country seen the Justice Department try and replicate what they have done in the #J20 cases to suppress activism?

The rioting statue being used against the J20 defendants actually was written after the mass demonstrations following the assassination of Martin Luther King Jr. I don’t remember exactly when the Pinkerton rule (the other ingredient of the J20 trials) came into play, but I would say any protest the police insist is a “riot” exists on the same spectrum as J20. The cases are only unique in terms of the severity of the charges.

I can say as a Canadian that I actually encountered my first concept of the collective liability theory like the Pinkerton rule in response to the 2010 G20 protests in Toronto.

Our courts tried to imprison those organizers for life, too (it ended with a plea bargain and 10-14 months jail per organizer). And I’ve had peers say similar theories are being advanced in France and Germany. It seems most neoliberal democracies are finding themselves agreeable to these theories of collective liability. From the state’s perspective, it’s a tidy way to smother movements before they can grow.

What makes the #J20 cases so important to follow closely?

When Kerkhoff argues that the protest infrastructure was intended to aid and abet the people who damaged property, she’s referring to things that can be found at literally every single protest in the country.

If she secures convictions based on these arguments, it enables prosecutors across the country to escalate charges against any protester as long as they have those elements in common with someone who did something criminal. We’re talking things like medical supplies, jail support forms, a lawyer’s number written on your body, being in a union—it’s absolutely bananas.

Imagine this: You’re at a protest. You planned a chant (let’s go with “eat your pheasant / drink your wine / your days are numbered bourgeois swine”). So, you’re chanting along with your buddy when your buddy gets excited and smashes a car window.

With Kerkhoff’s theory, the fact that you planned to chant with your buddy could be used as evidence that you were conspiring to cover for him as he broke something, and then you find yourself literally charged with breaking a window because you “aided and abetted.”

Personally, I’m indifferent to property destruction. I don’t care to do it myself, but I understand why it happens. But with prosecutors around the world flexing their muscles with these collective liability theories, organizers might have to start talking to their folks about what those kind of impulsive actions cost now.

Or to put it another way: Your jail support can’t support you if they’re also in bloody jail. If Kerkhoff succeeds, legal organizing in the United States becomes much, much harder, and the state’s legal avenue for repressing activists widens considerably.

What are you working on now and where can people go to continue to follow your work?

I have a project on chronic pain patients and how they’re being scapegoated by opiate policy writers and the war on drugs at the same time. I may also be developing more stories about police behaving badly in the near future.

I’m hoping to cover on Twitter as many of the J20 trials as I can. I believe the next is the IWW groups on May 14.

More broadly, my beat in journalism is abuse of authority. I have a semi-professional, semi-personal Twitter handle @SiobhanFTB, as well as a blag on freethoughtblogs.com/atg. And when I’m not doing journalism, I’m probably shit disturbing over the state of my local jail and the ubiquitous surveillance carried about by our municipal police.