Image: AP Photo/Jose Luis Magana
The assault on the Capitol was planned in the open. For weeks, social media and far-right websites teemed with users intent on mounting a last stand against President Trump’s enemies. Trump himself had promised his supporters a “wild” protest that day. The FBI and the U.S. attorney’s office in D.C. now say they are on a nationwide manhunt, but their mission will prove much harder because, despite clear warning signs, a slew of law enforcement agencies up and down the chain missed or ignored the threat. Some officers even encouraged or participated in it.
That’s very different from what happened four years ago during Trump’s inauguration, when police in D.C. quickly arrested and jailed hundreds of protesters and observers — including me. The contrast tells us a lot about law enforcement power in this country: who gets to weaponize it, and whom it is used against. As I experienced firsthand, political sympathies and cultural allegiances can loom larger than actual facts in determining how the government responds to unrest.
On Jan. 20, 2017, around the time Trump was sworn in, D.C. police cornered a couple hundred people — largely protesters but also bystanders, journalists and legal observers — onto a street corner far from the White House or the Capitol grounds. The justification for the mass arrests was that a handful of protesters in the crowd had destroyed the windows of several businesses, including a Starbucks and Bank of America branch, and damaged private vehicles parked on the street. I was covering the protest as a freelance reporter and, after catching an eyeful of pepper spray, I got caught up in the mass arrest while trying to leave. We spent the night in jail; police confiscated our phones.
At first, I figured we’d all be charged with contestable misdemeanors. Instead, the U.S. attorney’s office conjured up a radical conspiracy theory that rested on defining the protest march as a black bloc riot in which every alleged participant was guilty for all property damage, ultimately charging more than 200 people. Our indictments referenced protest chants captured on video as evidence. Although my actions, as alleged in the indictment against me, consisted of walking and wearing dark clothing, I was charged with more than half a dozen felony riot and destruction charges. It’s hard to convey the terror I felt, especially as Trump loyalists cheered on my prosecution because I was a journalist, gleefully using racial slurs.
The differences between our situation and that of the Capitol stormers are hard to miss. We were two miles away from the actual inauguration; police overwhelmed us with stinger ball grenades and pepper spray over the course of an ill-fated half-hour. The mob this year was an estimated 8,000 strong and had to contend only with a feeble number of officers from the U.S. Capitol Police and D.C. police. Authorities made no attempt at a mass arrest on Jan. 6, and by the time National Guard reinforcements arrived, many inside the Capitol had already dispersed.
As of Friday, about 115 people had been charged in the pro-Trump uprising, primarily with misdemeanors, though prosecutors are weighing more-serious charges. Over a week after the siege, there are indications that some who bashed their way into the Capitol will eventually face charges of “seditious conspiracy,” which carries a maximum 20-year sentence. By comparison, in 2017, even before we were released from jail, hundreds of us were charged with a rarely used D.C. felony riot statute. A few months later, we’d each been indicted on charges that added up to as much as seven decades in prison.
The reliance by prosecutors on evidence from the pro-Trump far right, along with other outrageous overreach — including an attempt to track all computers that visited an anti-Trump website, and a year-long attempt to crack into our phones — made clear that we were the targets of a political show trial. All defendants from the first trial were acquitted, and the vast majority of the other cases eventually fell apart. The lead prosecutor on the case was sanctioned by the court for withholding exculpatory evidence that was in the full footage that the office received from Project Veritas. Several defendants, including myself, have since filed civil suits against the city.
Though that hard crackdown on us ultimately stalled, it was made possible in the first place because law enforcement laid the groundwork, engaging in undercover investigations before Trump’s inauguration. That stands in stark contrast to the authorities’ under-preparation for the Capitol breach. Despite the volume of planning and hype in the days and weeks leading up to Jan. 6, authorities were slow to take it seriously. D.C. police have claimed to have had no intelligence suggesting it could happen. A Black Capitol Police officer described learning about a planned Proud Boy-led storming of the Capitol through Instagram posts, rather than from his superiors. Requests by the Capitol Police chief for National Guard reinforcements were undermined by the Senate and House sergeants-at-arms as well as Pentagon officials, even as the siege was underway.
I don’t believe prosecutors should pursue the same guilt-by-association strategy as they did against us. Nor should this be a moment to expand the powers of the national security state, which would do nothing to address what might be the most disturbing difference between 2017 and now: the emerging picture of a complicit law enforcement apparatus and Republican Party. Across the country, police departments have launched investigations into officers accused of storming the Capitol or posting favorably about it on social media, and several Capitol Police officers are under investigation on suspicion of supporting the assault. The Defense Department is investigating at least 25 people, some of them active- and reserve-duty troops, alleged to have taken part. Mainstream Republican groups, including the Republican Attorneys General Association, helped organize the initial protest. Not to mention, of course, the tacit approval of 147 Republican legislators who voted to overturn the election results, and more who refused to confirm the electoral college votes. The cultural and political overlap between supporters of the Capitol attack and the authorities charged with enforcing the law may prove to be a major obstacle to true accountability for its participants.
Having found a 21st century Lost Cause in Trump’s defeat, and armed with the knowledge that they have sympathizers in high places, the president’s loyalists may well continue pushing for the overthrow of this constitutional system until it is remade in the image of their chosen leader. The executive branch, which under Trump had no problem prosecuting us and hundreds of Black Lives Matter protesters for far less serious actions, faces a test unprecedented in its 232-year history: How to confront the threat from within.
Aaron Miguel Cantú is a Lannan Foundation Fellow with Type Investigations and an investigative reporter currently based in Los Angeles. You can see more of his work here.