Many on campus have been discussing the Charter case and how it may play out in federal court. The fact that the alleged “ringleader” of the recent attack on the monument is a GWU student came as a surprise for many. However, Antifa has long had a presence on our campus, including a 2017 incident where Charter appears to have had a confrontation with the very same conservative journalist in a government video from 2020.
Again, in the interest of full disclosure, I have been a long-standing critic of Antifa due to its profoundly anti-free speech views and its history of violence against those with opposing views, though I have opposed declaring Antifa a terrorist organization. They have a history of attacking journalists, academics, and others. Indeed, I have been critical of Democratic leaders who have supported Antifa despite this history. Some professors openly support the group, including its violence.
Faced with these charges, most defendants would be cautioned to avoid public statements. However, soon after his arrest, Twitter comments from Charter began to appear. While the account is unverified, there has been no denial that these are the comments of Charter and the account links to a defense fund for him.
On July 2, one posting on the site proclaiming #IAmAntifa stated:
I am innocent and the fact @realDonaldTrump is tweeting at and prosecuting a crippled 25 year old activist shows how desperate his is to creates false narratives. Please support my legal defense.
He also posted a film to defend Antifa.
Jason Charter@JasonRCharterWhen you are winning you get fascism. The movement is winning so the State turned to fascism to try to stop it.”
My concern when Charter was charged was that prosecutors would use political views to taint a case, particularly when you have an association with an extremist group like Antifa. Whether or not such statements are admissible at trial, as discussed in the earlier posting, they could play a role in pre-trial motions in key issues of admissibility.
There would be particular concern from a criminal defense standpoint with the statement that “When you are winning you get fascism. The movement is winning so the State turned to fascism to try to stop it.” That ties is case — and his actions — to Antifa. It also will make it more difficult for Charter to take the stand in his own defense. Rule 608(b) states in relevant part:
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about.
Even if the court grants a motion in limine on the political associations, these emails can easily be introduced for cross-examination or impeachment purposes. The risk would be too great for most criminal defense counsel.
The threshold is a showing of $1000 of damage. U.S.C. §1361 states:
1361. Government property or contracts
Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows:
If the damage or attempted damage to such property exceeds the sum of $1,000, by a fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.
One possible prosecutorial move could be to argue that, as the alleged “ringleader,” Charter is responsible for the damage caused by others at the scene. Again, this magnifies the importance of the linkage to Antifa and related advocacy by Charter.
The alleged public comments by Charter may help generate support for his legal fund, but it will likely cause greater difficulties for his criminal defense counsel. Charter is already in a highly precarious position. He has been tagged as a leader in this effort, which reduces the likelihood of a deal with prosecutors. He is more likely to be the subject of other plea deals than the beneficiary of a deal for himself. If the prosecutors can admit statements claiming victory, it will advance that theory.
As the rhetoric increases on both sides, these cases are taking on the fear of past criminal cases with strong political overtones like the “Chicago Eight” Trial (sometimes called the
“Chicago Seven”) involving alleged conspiracies leading to the violence surrounding the 1968 Democratic National Convention. As here, the federal government took the lead in the prosecution with charges against Abbie Hoffman, Jerry Rubin, David Dellinger, Tom Hayden, Rennie Davis, John Froines, and Lee Weiner—charged by the federal government. (The eighth defendant, Bobby Seale, was tried separately). The trial became a rallying cry for the movement as the defendants mocked the court and the case. They were ultimately acquitted of conspiracy, inciting to riot and other charges. However, they were given sentences for contempt of court by the hard-nosed judge in the case, Judge Julius Hoffman.
The trial became an utter circus, particularly due to the mocking of the court by Hoffman and Rubin, both “Yippies” (or members of The defendants, particularly members of the Youth International Party). At one point, Hoffman and Rubin appeared in court dressed in judicial robes. Huffman ordered them to remove the robes but then discovered that they had Chicago police uniforms underneath. Abbie Hoffman was particularly vocal, even telling Judge Hoffman “you are a shande fur de Goyim [disgrace in front of the gentiles]. You would have served Hitler better.”
The strategy ultimately worked for the defendants. It served to electrify the counter-culture and movement. While it resulted in contempt sentences (including for counsel), they had succeeded in making Judge Hoffman so angry that, on November 21, 1972, all of the convictions were reversed by the United States Court of Appeals for the Seventh Circuit on of judicial biased as well as other problems at trial. While contempt charges were retried before other judge, he did not impose a sentence on Dellinger, Rubin, Hoffman, and or their counsel.
That however would not be a good strategy today. Judges are all too familiar with the Chicago Eight litigation. Moreover, the case against the Chicago Eight was more attenuated than the claims raised against Charter. Nevertheless, there are going to be difficult issues for the court (and possible an appellate court) to resolve on evidence admissibility and the attribution of damage to an alleged leader of a protest.