Inauguration Day was not only the start of Donald Trump’s presidency, it was the start of a spirited resistance against his presidency.
And this week some of that resistance goes on trial.
The first trial of the approximately 200 protesters arrested Jan. 20 in Washington, D.C., starts Wednesday. There are so many defendants that they are being tried in groups. First up in a group of seven being tried for rioting, inciting and conspiracy to riot and damaging property is San Antonio-based photojournalist Alexei Wood.
His defense turns on First Amendment freedoms. But the 42-minute Facebook Live video he took is being used as evidence by both sides.
Wood, who also does commercial photography, is one of two journalists who were covering the protests and are facing a multicount indictment. (Other journalists were let go at the scene or were arrested but not charged.)
Both are Texans. Wood, 37, is from Corpus Christi and lived in Austin, off and on, for nine years, as he told the American-Statesman, “when it was affordable and weird.” An independent journalist, he was livestreaming the protest on Facebook, capturing many of the tense moments, including his own, falling to his knees at the end of the video after he was pepper sprayed.
Wood wasn’t dressed in all black like the protestors, but he can be heard in the video expressing sympathies to the protesters’ cause.
In the indictment, Wood and more than 200 others are charged with being part of a riot, as well as conspiring and inciting a riot and destroying property. The felony counts mean he is facing more than 60 years in prison if convicted. Superior Court Judge Lynn Leibovitz, who is presiding over the case, recently reduced two of the felony counts against all the defendants to misdemeanors. Until then, Wood and the others were looking at as many as 75 years in prison.
Aaron Cantú, 29, a McAllen native, was covering the protests for The New Inquiry, an online outlet, and is now a staff writer with the Santa Fe Reporter in New Mexico. He was charged separately from the others in an eight-count indictment in May and also faces more than 60 years in prison.
“I live-streamed an anti-fascist/anti-capitalism protest on Trump’s inauguration day in D.C.,” Wood told the American-Statesman in an email. “I continued filming while in detention of a police kettle after police surrounded an entire block of people. I even live-streamed my actual arrest. I was never told why we were being arrested, total stonewall. I asked what the heck was going on but no officer would speak a word. I was not there as a protester or in any way a participant. I was there documenting this tumultuous election and specifically the protests.”
Both Wood and Cantú pleaded not guilty. Wood has a court-appointed attorney and Cantú has a lawyer working pro bono. Wood has rejected a plea deal and is part of a group of defendants, the J20 Resistance, who have agreed not to accept a plea and pledged not to testify against one another. Wood said he was offered one year of prison deferred to 1½ years of probation, $1,000 fine, and 60 hours of community service. “I flat-out refused before even hearing the ‘deal,’” he said.
Cantú said that he and Wood did not know each other before their arrests. “His prosecution, like mine, is an assault on press freedom and political expression and should be deeply concerning for anybody who considers themselves an American,” Cantú said. “I’m heartened that both Wood and I have received tons of support from free press organizations and others who understand how pivotal this case is.” Cantú’s trial is scheduled for next October.
In a letter to the U.S. attorney, a group of press organizations, including the Freedom of the Press Foundation, asked that the charges be dropped against Wood and Cantú.
“This criminalization of everyone attending the same assembly is deeply troubling, but in the case of Cantú and Wood it raises special concerns for press freedom,” the letter said. “In order to cover these newsworthy events, journalists have to be present.” With prosecutors charging journalists by their presence, “the very act of journalism is criminalized.”
Problematic for Wood is that his livestream video, which prosecutors call the “Wood Video,” is central to the government’s case. “The government intends to use the Wood Video … in every trial,” said prosecutors in a pretrial motion. “The Wood Video is admissible against every defendant as it captures, in real time, the words and actions of participants in the ‘black bloc’ during the riot and captures the destruction and violence during the riot.”
More than 200 protesters were arrested Jan. 20, after the group began marching in downtown Washington, leaving Logan Circle in the morning, chanting and, in some cases, damaging cars and breaking windows as they headed toward Pennsylvania Avenue, which was the inaugural parade route.
They didn’t get far. Protesters were stopped and surrounded by police.
Prosecutors called the movement of the organized group a “black bloc,” because the participants wore black, usually with hooded jackets, and covered their faces except for their eyes to make identification difficult.
Why are journalists and, in a very real way, the First Amendment on trial?
“I think it’s very difficult to know what’s in the head of prosecutors,” said Gabe Rottman, Washington director of PEN America, a literary and free expression group, which is supportive of Wood and Cantú. “It really does look like the government is trying to make an example of journalists. It’s extremely concerning, especially given the severity of the charges.”
Robert Jensen, a University of Texas journalism professor, said, “Trump rode into office in part by tapping into the hatred a portion of the population has for journalists. Part of the campaign was demonizing journalists.” Of the inauguration protest, said Jensen, “one assumes that this is part of a general project to demonize the press and also to scare the press.”
The case relies heavily on electronic data. Prosecutors plan to use the defendants’ cellphones and other electronic device information, including texts, calls and chats. Police seized every suspect’s devices — Wood’s equipment was taken and he’s had to rely on borrowed cameras — although some phones, like Cantú’s, were encrypted, and prosecutors have not been able to open them. The judge has been ruling on what information may be used.
Bill Miller, spokesman for the U.S. attorney’s office for the District of Columbia, said he could not comment on a pending case. The new U.S. attorney, Jessie K. Liu, was recently confirmed by the Senate, and the case is being tried by Assistant U.S. Attorney Jennifer Kerkhoff.
Jury selection begins Wednesday, and the trial is expected to last several weeks.
There are also civil cases on Inauguration Day activities, including one brought by the American Civil Liberties Union on behalf of individuals, including a photojournalist, for police misconduct.
Wood, for his part, is upbeat about the trial and has continued his photographic career, which had an inauspicious start in Austin.
“I went to two years at Austin Community College where I took my only photography class,” he said. “I got a D.”