BY MARIA RECIO
WASHINGTON — The case against McAllen native and journalist Aaron Cantú and 187 other defendants accused of rioting and destroying property on Inauguration Day 2017, took a surprising turn Thursday when the government dropped charges against 129 of the accused.
However, there was no reprieve for Cantú, 29, one of two journalists detained and charged by the federal government, and who is still one of 59 defendants facing trial in an eight-count indictment, including felonies, which could result in up to 70 years in prison.
But Cantú fired back Friday, asking the court to dismiss the charges against him in a filing by his lawyers that cited his First Amendment rights and warning of the chilling effect on journalists reporting events on the ground. The court will consider his motion April 6. In the meantime, the trials against the remaining defendants continue.
The government’s decision to dismiss counts on 129 accused and focus on 59 defendants, who it alleges engaged in a riot, is an effective acknowledgement of the U.S. Attorney’s defeat in the first trial — known as J20 for Jan. 20 — of six defendants. That case began Nov. 15, 2017, and ended in Superior Court in Washington the next month with all defendants acquitted on all counts, including indie photojournalist Alexei Wood of San Antonio. There have also been 20 defendants who pleaded guilty.
Bill Miller, spokesman for U.S. attorney Jessie Liu, said in a statement, “The government is focusing its efforts on prosecuting those defendants who: (1) engaged in identifiable acts of destruction, violence, or other assaultive conduct; (2) participated in the planning of the violence and destruction; and/or (3) engaged in conduct that demonstrates a knowing and intentional use of the black-bloc tactic on Jan. 20, 2017, to perpetrate, aid or abet violence and destruction.”
Cantú, 29, was covering the protests for an online news site, The New Inquiry, and is now a staff writer with the Santa Fe Reporter in New Mexico. After Wood’s acquittal, Cantú told The Monitor that he felt “the first bit of hope I’ve felt in a year.” He said in an email Friday that he was still being charged and that his lawyers were filing a dismissal motion.
Cantú’s case centers on his rights under the First Amendment and those of the press.
“He respectfully moves the court to dismiss the indictment on the grounds that the charges against him impermissibly infringe his First Amendment rights,” read the motion, filed by his attorneys Theodore J. Boutrous Jr., Nicole A. Saharsky and Chantale Fiebig, at Gibson, Dunn & Crutcher LLP who are representing him pro bono. “The indictment is not narrowly tailored to advance any substantial government interest, and the government failed to provide Mr. Cantú with adequate notice that his newsgathering activities could subject him to felony prosecution.
“The indictment charges Mr. Cantú with rioting, inciting a riot, conspiring to riot, and five counts of destruction of property, all based on his mere presence at a demonstration. Allowing Mr. Cantú’s prosecution will set a dangerous precedent by telling journalists who engage in on-the-ground reporting that they can be subject to felony prosecution for doing their jobs.”
The government failed to prove in the first trial that everyone rounded up by police was equally guilty of destroying property because they were part of a group. Cantú, like Wood, maintains that he was observing protest activity, not participating in it.
“The government is not simply trying to limit what Mr. Cantú publishes as a journalist, but to actually prosecute and imprison him for exercising his First Amendment newsgathering right,” Cantú’s motion read.
Andy Switzer, one of the defendants whose case was dismissed, said Friday of the government’s decision: “The mass dismissal of charges is certainly a victory and means that more than a hundred people no longer have serious felonies and decades in prison hanging over our heads.”
However, he criticized the Trump Administration for “aggressively pursuing politically motivated charges against 59 of us” and said there would be support for those still charged, including a day of solidarity Saturday, the one-year anniversary of the Inauguration Day protests and arrests.