WASHINGTON — A Justice Department attorney who led the attempted prosecutions of hundreds of anti-Trump and anti-fascist protesters swept up in a mass arrest on the day former President Donald Trump was inaugurated in 2017 faces rare ethics charges, according to the D.C. Office of Disciplinary Counsel, who allege she hid exculpatory evidence from the defendants, edited videos to omit crucial context, and then lied in court about her actions.
Assistant U.S. Attorney Jennifer Kerkhoff Muyskens, who went by Jennifer Kerkhoff at the time of the alleged misbehavior, was the main prosecutor in over 230 cases stemming from the mass arrests of demonstrators near Trump’s inauguration on January 20, 2017. Protesters were arrested after police confined them in a “kettle” following a demonstration against the incoming president in which some people shattered windows, trashed a limousine, and threw objects at cops.
The government took the uncommon step of charging hundreds of people apprehended on a public street with felony charges because their black attire indicated they were part of a felony rioting conspiracy. However, the #J20 prosecutions, as activists nicknamed them, were mainly unsuccessful for the government.
In late 2017, jurors acquitted the first six defendants on trial; a judge ordered charges against ten more defendants to be dropped due to prosecutors withholding evidence; and charges against all remaining defendants were dropped in mid-2018.
According to the ethics complaint, Kerkhoff Muyskens and Washington Police Detective Greggory Pemberton were “primarily responsible for the government’s investigation” into the events of Jan. 20, 2017. Kerkhoff Muyskens is accused of violating six of the D.C. Bar’s professional conduct standards.
The Office of the Disciplinary Counsel in Washington, which serves as the primary prosecutor in attorney disciplinary proceedings, has asked the D.C. Board of Professional Responsibility, the disciplinary arm of the D.C. Court of Appeals, to consider imposing sanctions on her.
Pemberton, who now leads the Washington police union, was questioned by defense attorneys before trials about his “anti-liberal biases,” according to the complaint. When defense counsel noted “troubling” alterations to video evidence that they felt Pemberton had done, Kerkhoff Muyskens “falsely told the court that only she — not Pemberton — was responsible for the edits,” according to the lawsuit.
The problem is a film from Project Veritas, a conservative group that recorded undercover videos that were critical to the prosecutors’ case.
Kerkhoff Muyskens and Pemberton were aware that Project Veritas “had a reputation for misleadingly editing videos,” according to the complaint. The two men allegedly “omitted and cut footage from the original videos, in part, to remove footage of the operative that could reveal his identity or reveal the identity of Project Veritas as the source of the video,” according to the documents.
The complaint states that despite Project Veritas providing footage of another training session held at American University on January 14-15, Kerkhoff Muyskens did not give them over to defense lawyers.
According to the complaint, the undisclosed videos “consistently showed that protesters were trained and instructed to expect a non-violent protest; to remain non-violent; to use non-violence and de-escalation techniques with police and counter-protesters; to be wary of counter-protester infiltrators, including Project Veritas; to rely on [Washington police] to handle any violence from either protesters or counter-protesters; to stay close with their protest group for safety and
Neither Kerkhoff Muyskens nor Pemberton responded to NBC News’ requests for comment. According to federal court records, Kerkhoff Muyskens, who is now known simply as Jennifer Muyskens, has been working as an assistant US attorney in Utah, bringing new cases as recently as last month. James O’Keefe, who established Project Veritas and led it during Trump’s inauguration before being dismissed last year, did not respond to a request for comment, nor did the United States Attorney’s Office for the District of Columbia.
The US Attorney’s Office, which is prosecuting over 1,400 individuals in connection with the Jan. 6, 2021, attack on the US Capitol, is unique in that it prosecutes both “local” offenses in D.C. Superior Court and federal felonies in U.S. District Court.
The #J20 prosecutions were brought in Superior Court, but the January 6 cases were nearly all presented in federal court. Prosecutors have already obtained over 1,000 convictions in connection with January 6, with terms ranging from probation to 22 years in federal prison for a former Proud Boys chairman convicted of seditious conspiracy.
The government’s failed prosecutions of anti-Trump inauguration protesters influenced the handling of the Jan. 6 cases, and in some ways, Capitol attack defendants profited from what they learned.
In contrast to the prosecution of Jan. 6 defendants, the exceptional #J20 prosecutions received little coverage from the national media, which was mostly focused on the chaos of Trump’s first year in office and Robert Mueller’s special counsel investigation, which began in May 2017.
During her theatrical presentations to the first J20 jury, Kerkhoff Muyskens referred to a “sea of black masks” and walked jurors through the often relatively benign contents of defendants’ backpacks, despite admitting that there was zero evidence that the six protesters, who were eventually acquitted of felony charges, had engaged in any property damage or violence and that they were arrested en masse on a public street.
“Each of them made a choice, and each of them played a role,” Kerkhoff told jurors during her opening statement. “You don’t personally have to be the one who breaks the window to be guilty of rioting.”