Journalist Aaron Cantú is among an increasingly small group of people still facing felony charges for alleged rioting during President Trump’s inauguration, despite prosecutors dropping the cases against most other defendants.
Cantú’s role in a raucous anti-capitalism march that featured window-smashing and a chaotic police chase remains murky, as does the reason prosecutors excused 129 people from prosecution Thursday, but not Cantú, keeping his case active alongside just 58 others.
Some reporters and photographers were allowed to walk free before police took more than 230 people to jail on Jan. 20, 2017. Others had charges dropped in the weeks that followed, even if they did not work for a media organization.
Cantú, 29, currently works for the Santa Fe Reporter. He was a freelance journalist at the time of his arrest, but had been published by Al Jazeera America, The Intercept, The Nation, and Vice.
Prosecutors have not publicly accused Cantú of committing an act of vandalism or violence, and a person with knowledge of his situation believes an undercover video filmed by the conservative investigative group Project Veritas is the reason he still faces charges.
In that video, a person identified as Cantú discussed protest planning that involved shutting down a bridge into the city. The person identified as Cantú said they helped organize transportation for activists from out of town, but did not know details about which bridge was targeted. The man used the term “they” to describe protest planners but also offered to “call my comrade” for additional information.
The person filmed by Project Veritas declined to give their name on camera, saying “I’d rather not give my last name, just like K, put down K.” The person is filmed in dim lighting, and it’s unclear if the grainy image can be proven to be Cantú. The bridge blockade never happened.
“Because these cases remain pending, we have no comment on individual defendants,” said Bill Miller, a spokesman for the U.S. attorney’s office in the nation’s capital. Assistant U.S. Attorney Jennifer Kerkhoff, who has taken the lead prosecuting rioting cases, declined to comment outside a courtroom on Friday.
In a court filing, prosecutors said the final 59 defendants fall into one of three categories.
The remaining defendants, prosecutors said, either committed "identifiable acts of destruction, violence, or other assaultive conduct," or were involved in "planning of the violence and destruction," or are accused of engaging in "conduct that demonstrates a knowing and intentional use of the black-bloc tactic ... to perpetrate, aid or abet violence and destruction."
Cantú referred questions to his defense attorney Chantale Fiebig, who provided a copy of a motion to dismiss that she filed Friday.
“Cantú is an established journalist,” the court filing says.
“[T]he charges against him impermissibly infringe his First Amendment rights. 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, as is required under the U.S. Constitution and Super. Ct. Crim. R. 7.,” the motion says.
Sarah Matthews, an attorney at the Reporters Committee for Freedom of the Press, said the group is concerned about the case.
"We question why charges are still pending against Aaron Cantú," she said. "It's very troubling that he faces trial when it appears he was just doing his job reporting on the protests when he was arrested. We hope the court grants his motion asking for the charges to be dismissed."
The decision to continue Cantú’s case comes as prosecutors adjust their strategy following acquittal of six rioting defendants last month. In the first rioting trial, prosecutors admitted they had no evidence that six defendants committed vandalism or violence, but said they joined "a sea of black masks" that anonymized people who did, making the march akin to a "getaway car." A juror told the Washington Examiner he found it frustrating that “we were shown repeatedly that the defendants were there.”
Professional photographer Alexei Wood, who live-streamed the march, was among the six original defendants acquitted. Prosecutors argued that Wood’s utterances of “woohoo” as black-clad activists smashed store windows made him a rioter legally liable for the property destruction. Jurors disagreed.
Journalists who were covering the march were excused from the case in waves.
After initially being detained for about an hour, two local NBC journalists, one from U.S. News & World Report, and an independent journalist were allowed to leave the cordon. The rest were taken to jail.
A week later, on Jan. 27, the case against Vocativ senior producer Evan Engel was dismissed. Three days later, prosecutors dropped the cases against livestream videographer Matt Hopard, RT video journalist Alex Rubinstein, and documentary filmmaker John Keller. On Feb. 21, charges were dropped against photographers Shay Horse, Alexander Contompasis, and Cheney Orr.
Horse, a self-described anarchist, told the Washington Examiner that “this case is built around intimidation, and with Aaron, the prosecution is specifically trying set a dangerous precedent going forward for the press working this beat and covering these events."
Until Wood’s acquittal, just he and Cantú received trial dates after claiming journalistic protection.
Cantú faces five felony property destruction charges and a trio of rioting charges that by statute could carry decades in prison, though an actual sentence almost certainly would be less. His trial is currently scheduled to begin Oct. 15.