News just moved today that federal prosecutors in Minneapolis have brought conspiracy charges against 15 Minneapolis demonstrators whom the government has identified as being members of “Antifa.” (I don’t know when or if “Metro Surge” officially ended. But apparently most of the incidents are more recent than the period this winter when Renee Good and Alex Pretti were killed.) Our team is currently reviewing the indictment; check out Kate Riga’s latest for more details about the case. But I checked in with staff and our initial sense is that it is likely yet another case of overcharging, perhaps comparable to what happened in Broadview. It contains the same legal theory in which a protest amounts to a conspiracy in which every member of the protest is legally responsible for anything any other protestor does. It’s a dagger at the heart of the 1st Amendment.
As I said, we’ll be following the case as it evolves. But I want to make a broader point upfront. There will likely be some major repercussions over the grand jury misconduct in the Broadview case. But these kinds of charges — even if brought through a “clean” process — amount to their own substantive misconduct as bad or worse than the formal infractions that were uncovered in the grand jury transcripts in Broadview.
The 1st Amendment is not solely about free speech and the free exercise of religion. It is explicitly about the right of peaceful assembly and the right to seek the redress of grievances through peaceful assembly. Minor instances of property damage or scuffles sometimes happen during generally peaceful protests; it’s legitimate for the government to address those as what they are — minor charges, misdemeanors etc. The point of these conspiracy overcharges is to quell protests because even peaceful protests carry the real threat of life-changing stays in federal prison. That is a direct attack on the Constitution and its black-letter protections and prohibitions. That is at least as important as technical shortcomings in the grand jury process, though those are critical too.
Basically, I’d say good luck to the Feds in getting a Minneapolis jury to convict on these kinds of charges. But even acquittals leave defendants saddled with crippling legal debt and stress to families, marriages, children and more. Those who believe in civic democracy need to start a process now either to bring sanctions against the prosecutors who bring these cases and the U.S. attorneys from whose offices they are brought or at least to make them radioactive for future legal employment, if formal sanctions are not possible.
We’ve seen again and again over the last 18 months the critical role of grand juries and trial juries as bulwarks against federal despotism. But it’s not enough to have the prosecutors walk away from these cases weeks or months later or see them end in acquittals. Lots of damage comes from just bringing the charges at all. And there must be consequences for those decisions and that anti-constitutional behavior.
