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The first of some 200 protesters, legal observers, and journalists at the J20 anti-Trump Inauguration Day protest are set to go on trial. Although they face decades behind bars and unprecedented legal maneuvering, their case has mostly been ignored

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AARON MATÉ: It’s The Real News. I’m Aaron Maté. Next month we’ll see the first trial for some of the more than 200 people arrested at an anti-Trump protest on inauguration day. At the protest, known as J20, some protesters smashed windows and according to police, caused about $100,000 in damages. Instead of seeking charges against the actual perpetrators, prosecutors have cast a wide net. Most of these 200 protesters now face eight felony charges, including conspiracy to riot, inciting riot, and rioting, just for being present. The defendants face anywhere from 10 to 70 years in prison. My guest argues that the J20 case should frighten anyone concerned about the future of free assembly and dissent in the U.S. Chip Gibbons is a journalist, as well as a policy and legislative counsel for defending rights and dissent, has just written a major new piece on the J20 case for the nation. It’s called ‘The Prosecution of Inauguration Day Protestors is a Threat to Dissent.’ Welcome, Chip. Let’s talk about the charges that these dozens of people are facing. Just for being at this protest, they’re facing felonies carrying up to 70 years in prison. CHIP GIBBONS: Sure. The defendants are charged with eight felony counts. They’re all related to felony rioting. Initially they were charged only one count of felony participating in a riot, and there was a back and forth between prosecutors and defense, which has never been resolved, about whether or not participating in a riot can ever be a felony offense. The statute very clearly states that inciting or urging a riot, if the damage is more than $5,000, is a felony, not a misdemeanor, but it makes no mention of participating in a riot. Instead of responding to the defective indictment that they put out, they brought on another seven charges, including conspiracy to riot, four counts of property destruction. 214 people are charged with breaking the same windows. I would love for the prosecutor to demonstrate how 200 people smashed the same window. Felony conspiracy to riot, felony inciting and urging to riot, and there’s still a dispute about the first charge, about whether or not it’s a felony or a misdemeanor. The judge, thus far, has refused to resolve it. At one point, the judge said they would handle that issue at sentencing, which is really mind-boggling because if it’s a misdemeanor charge it carries 180 days in jail. If it’s a felony, it carries up to a decade in jail. AARON MATÉ: How have the prosecutors reconciled that obvious paradox that you mention? I mean, if it’s not physically possible for 200 people to break the same windows, how are they charging everyone with the same charge for doing that? CHIP GIBBONS: Well, they’re using an unprecedented collective liability theory for the protestors. The argument is that this wasn’t a protest march where vandalism just happened to occur. It’s a premeditated riot. They had an infiltrator in the organizing meetings. They’ve indicted one of the organizers and their argument is that from the very start people planned on rioting. Everybody participating in the march was participating in an unlawful assembly just by walking and marching and chanting things like, “Whose streets? Our streets,” they were partaking in a riot. AARON MATÉ: Meanwhile, the focus on the defendants is also kind of overshadowed the claims against the police, because protestors have accused the police of excessive force in these mass arrests, right? My colleague here at The Real News, Baynard Woods, he reported recently that the D.C. police threw more than 70 stun grenades at the protestors. CHIP GIBBONS: Yeah. I mean, I saw that report from your colleague. I mean, they threw what was called stingers, which are some sort of bizarre combination of a flash grenade, projectiles, and tear gas. I mean, it’s not just critics who are alleging this, the D.C. Office of Police Complaints released an official report to the Mayor on the protests, and they said most likely or it may be possible that D.C. police fired indiscriminately into the crowd projectile objects, stingers, tear gas, etc. They also noted that they don’t make a determination about the legality of arrest, but that proximity to the damage seemed to be the deciding factor in who they arrested and that it was possible that there was not individual probable cause for all people arrested, which would make the arrest unconstitutional and illegal. AARON MATÉ: In terms of the “Evidence,” that authorities are citing against these protestors, you write in your piece about some interesting facets of that, including that because some were wearing black, that all of a sudden makes them suspicious and worthy of being charged. CHIP GIBBONS: I mean, this is the most remarkable thing. I mean, one of the main things in the indictment is they’re wearing black clothing. Wearing black clothing is not a crime. This comes up particularly in the case of Aaron Cantú, who’s a journalist. One of about seven journalists who were arrested during the mass arrests, because when you kettle a group of people in a geographic area, you sweep up everyone indiscriminately. The other journalist had their charges dropped against them, except for Aaron Cantú and one other. One of the arguments the prosecutor makes is that this reporter was wearing black and his current employer, the Santa Fe Reporter is standing by him. Well, they made this really sad comment to the … Not sad, because they made it, but sad because of the prosecution to the Baltimore City Paper, “What will he do different next time?” “Well, next time he’d wear a suit and tie.” Because that would somehow make him no longer a criminal. Based on the prosecutor’s logic, I mean, that’s a totally reasonable thing for the Santa Fe Reporter to say. I’m not finding fault with them, I’m finding fault with the perversity of this prosecution. AARON MATÉ: Right. These reporters who are still facing charges out of the original group of reporters who were initially charged, they’re with the Santa Fe Reporter and the New Inquiry, which is a magazine based here in New York where I’m speaking to you from. Now, these are smaller outlets, right? Now, compare that to the bigger outlets whose reporters, their charges were dropped against them, and I’m wondering if that’s not incidental? CHIP GIBBONS: I don’t really know. I think there are some reporters in smaller outlets who did have their charges dropped against them. I would have to go back and look at all of the outlets. It’s really just a very random prosecution. I don’t know if there is sort of a malicious intent behind it, or disregard for smaller outlets, or [crosstalk 00:07:03]- AARON MATÉ: Let me just say, let me just say on that front, if you’re with a smaller outlet, then obviously you’re going to have less resources to fight it. CHIP GIBBONS: Yes. AARON MATÉ: I do know that there were some reporters from NBC who had their charges dropped. CHIP GIBBONS: Yes. AARON MATÉ: But I didn’t know that there are other, maybe other smaller reporters from other smaller outlets who also had their charges dropped. Fair enough. On this front about the media, I want to bring up a point that Adam Johnson made. He’s a writer for the L.A. Times and for FAIR, the media watchdog group. He wrote to some top media reporters at CNN, and also at the Washington Post, and somewhere else too. He says, he only got … Three of the people he wrote, two of them didn’t write him back, and the one response he got was from the media reporter at the Washington Post who says, “I cover hundreds of stories. I can’t cover everything.” Even to these media reporters, charging journalists who are covering a protest, who now face up to 70 years in prison, was not even worth writing about to them, or even worth responding to Adam Johnson about either. CHIP GIBBONS: Well I mean, it’s really just shocking and I think part of the problem is that the media plays a tremendous role in demonizing protestors. They’re very happy to go along with the government’s narrative and every time we have a big event, whether it’s a political convention, or an inauguration, or a meeting of the World Bank. I mean, the police and the government always start off fear mongering, “All these dangerous anarchist are coming. All these dangerous anarchist are coming. Oh my God, the black bloc.” The media, instead of responding skeptically, which is what the job of journalist should be, just sort of parrots these lines. I mean, I don’t know how you can say this story isn’t newsworthy. I don’t know of any other case where people are facing 75 years in prison for protesting. I don’t know of any other case where such a fury of collective liability has been imposed on people. I mean, under the U.S. Constitution, I mean, if you have a First Amendment right, it’s an individual right, you cannot be denied it based on the actions of others. If I’m out protesting with a group of people and somebody else throws a rock, I don’t suddenly lose my right to assemble. That person might, but I don’t. Also, to arrest someone and charge them requires individualized suspicion. Not just, “I was in the wrong place at the wrong time.” This case is entirely out of line with traditional constitutional jurisprudence. It’s out of line with international rights law. The U.N. special repertoire on free assembly has been very clear that a violent protestor does not make a protest violent. On top of that, the charges they’re facing, even if you were to assume the prosecutor’s case was slam dunk and true, which it isn’t, I mean 75 years in prison for breaking windows? I mean, that is an absurdly disproportionate draconian punishment. All of those elements together, I’m just sort of flabbergasted that nobody in the media thinks this is newsworthy. AARON MATÉ: Right. Not just breaking windows, but being in the presence of someone who broke windows. CHIP GIBBONS: Yes. AARON MATÉ: Right. CHIP GIBBONS: Yes, yes. AARON MATÉ: On the point about the media, unfortunately it’s not just the media too who have been ignoring this case, or downplaying it. It’s also the people in the, “resistance.” When we look at how this protest has been treated, it’s not … By many prominent figures in the resistance, people who say that they’re against Trump, this one has been kind of cast aside. People have even been punching left saying that because there was property damage there, it doesn’t represent us. Not standing up for all those who went out to … On that day, put their bodies on the line, as people in Antifa have been doing to protest Trump. Listen Chip, let me end by asking you what is next? Can you give us a preview of the first of the mass trials that are starting next month? CHIP GIBBONS: Next mass trial, or the first mass trial will start in late November. The defense filed a motion to dismiss the charges saying they were unconstitutional, both because the indictments failed to allege any actual crimes besides wearing black, and chanting, and walking. Also, because they were defective. That was denied by the judge, which is very frightening because that means the judge very likely will accept the prosecutor’s legal theory, which is just utterly gob stopping and shocking to me. The defense also put forward a motion to compel the release of the prosecutor’s legal instruction to the grand jury, because the defense argued that no grand jury would return an indictment based on the facts alleged by the prosecution and the judge also rejected that. On top of that, the defense, or the DOJ’s now getting these warrants to look at organizer’s electronic communications. They’ve sought to portray the website as an organizer of a riot. I was at a hearing on Friday of last week about getting information of people’s Facebook accounts and the DOJ prosecutor said that a like on Facebook of a specific post could be probative of criminal intent. The example he gave was if you like a post about how to dress in black bloc for “the riot,” they always have people when they’re describing what they want … I’m talking about the riot, because the activists were emailing each other, “Oh, wear this to the riot. Bring a crowbar to the riot.” It’s ridiculous. AARON MATÉ: This point you mentioning here about seeking online data, it’s so critical. Initially, the government wanted the IP addresses of anybody who visited the J20 website before the protest. CHIP GIBBONS: Then they amended their warrant and they claimed they never wanted that, they had no idea the government had that … Or they had no idea that Dreamhouse had that information and the Dreamhouse attorney pointed out in court that in the warrant, in the text of it, they specifically requested that information. The government comes out with these very broad warrants and then plays very coy, and they claim they’re only looking for specific evidence. In the Dreamhouse case they cited a listserve discussion about who’s bringing crowbars to the riot. I mean, the felony rioting charges are based on political expression as being evidence of a crime. Then, I mean, this is a witch hunt and the more information they have, the worse the situation is. AARON MATÉ: We’ll leave it there. Chip Gibbons, journalist and also the policy and legislative counsel for defending rights and dissent. The piece just up at The Nation is called, ‘The Prosecution of Inauguration Day Protestors is a Threat to Dissent.’ Chip, thank you. CHIP GIBBONS: It’s always a pleasure to do The Real News. Thank you very much. AARON MATÉ: Thanks, Chip. Thank you for joining us on The Real News.

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Chip Gibbons is a Legal Fellow at the Bill of Rights Defense Committee and Defending Dissent Foundation, where he heads the Activism is Not Terrorism Campaign, which focuses on protecting the rights of activists with an emphasis on the increased use of anti-terrorism legislation against non-violent activists and terrorism as a pretext for the surveillance of First Amendment protected activities. Additionally, he is a freelance writer and journalist whose work has appeared at Truthout, Counterpunch, and the Dissent NewsWire.