Two years after Charlottesville, this Republican prosecutor is pioneering a new approach to convicting racist rioters
On June 28, in the main courtroom of Charlottesville’s federal courthouse, U.S. Attorney Thomas T. Cullen rose to his feet. It had been nearly two years since white supremacists brawled with counterprotesters at a violence-filled rally nearby; now, standing still and stoic, the tall, lean Cullen addressed the court regarding the sentencing of James Fields Jr. At the rally in August 2017, Fields, 22, had driven his Dodge Challenger into a crowd of peaceful protesters, maiming many and killing one. Having been convicted on federal hate crimes charges, Fields deserved nothing less than life in prison, Cullen argued.
From the courtroom’s wooden benches, Fields’s victims — who had come to testify about their broken bones, broken spirits and broken marriages; their lasting fear of cars, loud noises and even the light of day — listened intently. Never mind the defendant’s age and appeal for mercy, Cullen said. Hadn’t he described those who disagreed with his views as “monkeys,” “subspecies,” “kikes” and more on his social media accounts? Never mind his claim that he’d acted on impulse and without premeditation, that he’d had mental health problems. “We all face mental health issues,” Cullen pointed out, “but troubled people don’t just commit acts of mass murder or domestic terrorism.”
U.S. District Judge Michael Urbanski agreed. Fields stared blankly before him as his sentence was handed down: life in prison without parole. At the prosecution table, Cullen, his face set in its resting scowl, nodded briefly but didn’t look up from the notes he was jotting on his legal pad.
It was a win, but only a first step. Cullen, 15 months into his job as the chief federal prosecutor for the Western District of Virginia, is on a mission: to use the federal judiciary to strike a blow against mounting white nationalist violence. And nailing James Fields was arguably the easy part. The bigger challenge was the organized groups of white supremacists who had planned the massive rally with the intent to threaten and physically assault counterprotesters: How could they be held responsible?
Cullen and his prosecutors have set their sights on a white supremacist group called the Rise Above Movement, based in Southern California, charging four of its members with conspiracy to commit violence and crossing state lines to riot in Charlottesville. The prosecutors’ ironic weapon of choice against the extreme-right group: an anti-riot statute passed in the 1960s to rein in leftist Vietnam War protesters.
The case is the first time federal authorities have tried to disrupt a violent white supremacist terrorist organization on charges other than drug- or gun-dealing or murder. And it’s remarkable not just for the legal tactics involved, but because of the person carrying them out: Thomas Cullen, a Trump-appointed conservative prosecutor from a prominent Republican Virginia family. While the president and others in the GOP have mostly averted their gaze and refused to confront the phenomenon of white supremacy, Cullen is choosing to stare it down. “I could care less about politics,” he says. “Hate crimes and violence by white supremacist organizations that qualify as domestic terrorism are way up. Prosecuting them is common sense. It’s the right thing to do.”
A few weeks before the Fields sentencing, I met Cullen in a small, unadorned conference room on the first floor of the federal courthouse in Charlottesville. At 42, Cullen is easygoing and straightforward, with none of the bravado that many federal prosecutors display. He took office as the top federal lawman for the 46 counties and 17 cities of western Virginia on March 30, 2018. Except for a stint in private practice, he had served as an assistant U.S. attorney and deputy criminal chief in the Roanoke-headquartered office for the previous three years. “I felt pretty comfortable coming into this role,” he told me. “I certainly understood how the office worked.”
On his plate when he took over were
- opioid pill mills along the Interstate 81 corridor;
- organized gangs of Crips and Bloods in Danville, near the North Carolina line;
- drug dealers in the Shenandoah Valley; and the 2017 Unite the Right rally in Charlottesville. Cullen was away from Virginia on vacation when the rally and subsequent violence took place, but from the moment he was nominated for the top job, he knew that the issue was “one I need to be involved in.”
Within 24 hours, Assistant U.S. Attorney Christopher Kavanaugh, who lives in Charlottesville and works out of the branch office there, briefed Cullen on the evidence and possible charges. Fields had already been indicted on murder charges by the state, but to send a message, the office wanted him to face federal charges as well. Based on video, Fields’s vile social media feeds and witness testimony, prosecutors believed they had a clear shot at building a hate crime case against Fields under federal civil rights laws.
But there had to be more. “It was too big an event, too awful an event, for the federal government to have that one homicide case,” Kavanaugh told me. “We asked ourselves: What other prosecutions could come of this?”
He found an answer in the more than 5,000 hours of rally video turned over to federal law enforcement by bystanders, participants and journalists. Front and center in much of the action, assaulting and beating counterprotesters including women and clergy, were four men. “This one group of guys kept sticking out,” Kavanaugh says. “They acted in lockstep. Their hands were taped. They were more equipped to fight. They were involved when violence first broke out.” He wondered, “Who are these guys?”
A detailed October 2017 article by the nonprofit investigative news service ProPublica provided crucial information. It identified members of the Rise Above Movement, a virulent neo-Nazi white supremacist group. Founded in California in 2017, RAM had grown to about 20 members by the time of the Charlottesville rally, according to court documents. Its promotional videos show members fitness training, kickboxing and occasionally throwing copies of Anne Frank’s diary into bonfires on the beach. They aimed to build up members’ physical strength in order to punish “Jews,” RAM’s catchall word for anyone it considers an enemy. “Their whole mantra is going in the opposite direction of the image of the basement-dwelling chubby guy spewing hate on his laptop,” says Kavanaugh. “They were masculine, fit, sober, respectful. They had a certain look.”
The four men prosecutors zeroed in on included RAM co-founder Benjamin Daley, a wiry 25-year-old tree trimmer from Redondo Beach, Calif., who routinely bashed “Mark Zuckerberg and his Facebook Jew police” for taking down his anti-Muslim posts. Daley had hooked up with another ardent RAM member, Michael Miselis, a 30-year-old aerospace engineering doctoral candidate at UCLA who was working as a systems engineer for defense contractor Northrop Grumman in Redondo Beach. (Miselis lost his job — and his U.S. government security clearance — after he was named in a July 2018 ProPublica article.)
The problem for the U.S. attorney’s team was finding a federal statute they could charge the men under. According to Cullen and Kavanaugh, there are precious few laws available to federal law enforcement agencies and lawyers for investigating and prosecuting domestic terrorist groups for violent rhetoric — or even outright violence. Local and state police and courts can charge crimes of assault, robbery, threats and all manner of person-to-person violence, but the federal criminal code limits the FBI and all federal agencies to investigating broader conspiracies, fraud, gun and drug trafficking, and civil rights violations — which now includes hate crimes. In many cases, defendants must cross state lines to be found in violation of federal law.
Investigating domestic terrorism can put federal agents in even more disputed terrain. Academics, lawyers and judges contest the line where First Amendment rights of free speech end and conspiring to commit violence begins. Federal law enforcement agencies have long had to navigate that line, even as the demand to rein in domestic terrorist groups grows. “The FBI is under pressure to do something it can’t do something about,” says Adam Lee, former head of the FBI’s Richmond office and now head of security for Dominion Energy. “The FBI cannot target domestic terrorist groups like an international threat. The First Amendment absolutely forbids it.” (Progressive advocates, such as the Brennan Center for Justice, dispute this, arguing that the FBI readily investigates groups on the left that it views as subversive, including environmental groups, Black Lives Matter and others.)
Prosecutors were committed to bringing the RAM four to justice, but they did not believe proving a hate crime under federal statutes was their strongest possible case. Instead, digging into federal criminal laws, they found the 1968 Anti-Riot Act, passed by Congress to punish antiwar protesters who crossed state lines to incite a riot. “If we could prove,” says Kavanaugh, that the RAM members “had intent to commit violence and they traveled across state lines, we could build a case.” Cullen didn’t need a lot of persuading. He told his prosecutors to dust off the little-used law and charge the four RAM members with conspiracy to riot. It was, Cullen told me, “our only viable option.”
In the months after he took office, Cullen gradually came to the conclusion that white supremacists and far-right domestic terrorist groups like RAM are “grave threats” to the country — and are stepping up their violence. He interviewed victims, reviewed hundreds of hours of tape, read about the radical far right, and attended domestic terrorism meetings at the Justice Department. “The cumulative weight of the evidence opened my eyes,” he says. “I felt an obligation to protect the public, to take them off the street.”
That sense of obligation may come from his upbringing. Cullen was the eldest of four children in a conservative Republican family from Richmond. Public service was drilled in by his father, Richard Cullen, a former attorney general of Virginia and former U.S. attorney for Virginia’s Eastern District. “He’s my mentor and role model,” says Cullen. “A benefit and a burden.”
By many accounts, the elder Cullen, 71, is one of the most sought-after defense lawyers in the nation for powerful Republicans in need. (He recently represented Vice President Pence in Robert S. Mueller III’s investigation into possible Trump-Russia collusion.) But the self-described “small government, individual liberty-type Republican” also had close ties to former Virginia governor L. Douglas Wilder; in 1993, he worked with the Democrat to pass a law limiting handgun purchases in Virginia to one a month. “Thomas was always around people in public life,” Richard says. “But I did not try to shape his career.”
Thomas, for his part, had no particular yearning to follow in his father’s footsteps. After graduating from Furman University in South Carolina, he enrolled in William & Mary Law School. On his second day he phoned his father. “I’ve decided not to continue here,” he said. Cullen had looked around at his fellow students at orientation and was “scared out of my mind. I didn’t feel ready.”
A year of teaching English at a military prep school, however, convinced him that he was ready. He returned to William & Mary, earning a law degree in 2004. After graduating near the top of his class, he clerked for Roger Gregory, the first African American to serve on the U.S. Court of Appeals for the Fourth Circuit.
For his first job as federal prosecutor, Cullen headed to North Carolina. Four years later, in 2010, Tim Heaphy, the U.S. attorney for Virginia’s Western District, recruited him to run his criminal division. Heaphy, as it happened, was Richard Cullen’s former law partner. Cullen knew that his colleagues might be suspicious of his hiring. “I felt the pressure,” he says. “I just worked harder to establish myself.”
In July 2017 Cullen was working in private practice in Roanoke when the state’s two Democratic U.S. senators, Mark Warner and Tim Kaine, floated his name for the job as top federal prosecutor in the Western District. Trump nominated him in February 2018, and the Senate confirmed him the next month. The president had already declared that “there were fine people on both sides” of the violence in Charlottesville, a statement that seemed to bless violent white supremacists and neo-Nazis. Cullen would look to disprove that contention in court.
Afederal grand jury indicted James Fields on June 27, 2018. Fields was already in custody on state murder charges, but the RAM four were still out there, celebrated on white nationalist websites and gloating about their fighting prowess. “We had the[m] completely surrounded,” Daley wrote on his Facebook page of the torch-lit march on the U-Va. campus, according to court documents. “I hit like 5 people.” In the spring of 2018, Daley and Miselis traveled to Germany to celebrate Adolf Hitler’s birthday at the white supremacist Shield and Sword Festival.
On Aug. 27, 2018, Cullen and his team filed arrest warrants for Daley, Miselis, Gillen and White, supporting the complaints with photos and screen shots:
- White head-butting a clergyman, then
- cracking heads with a female counterprotester, leaving her with blood streaming down her face; Miselis, wearing a “Make America Great Again” hat turned backward,
- kicking a man as he’s falling;
- Daley grabbing a woman and body-slamming her to the ground.
Cullen asked the judge to keep the warrants sealed until prosecutors could organize the arrests. Then, in the early morning hours of Oct. 2, 2018, federal agents in Southern California raided the homes of Daley, Miselis and Gillen, and brought the men to federal court in Los Angeles. White was grabbed in San Francisco.
Kavanaugh went to California to help guide the arrests. “It was important to show our presence out there,” Cullen says. “It was our case. They were coming back here.” The four suspects, facing 10 years in prison — five for each of two federal rioting charges — were taken to the Central Virginia Regional Jail in Orange.
At a news conference in Roanoke, Cullen recognized ProPublica for providing a “starting point” for the federal investigation. But “we’re not finished,” he declared. “I commit as the U.S. attorney that we’re going to follow every lead until we’re satisfied that we’ve done all we can do.” He wanted to “send a message” to white supremacists, he said, putting them on notice that they could face federal criminal charges for violent actions.
Earlier this year, in a New York Times essay, Cullen decried the rise in far right extremism as “among the greatest domestic-security threats facing the United States” and lamented that “law enforcement, at both the federal and state levels, has been slow to respond.” Federal prosecutors, he wrote, needed additional tools, such as “a domestic-terrorism statute that would allow for the terrorism prosecution of people who commit acts of violence, threats and other criminal activities aimed at intimidating or coercing civilians.”
Cullen’s outspokenness risked rebuke from a White House, a president and a political party that have tended to avoid calling out white supremacists. He allows that he put himself “out on a limb,” but he got no negative feedback — and he has no regrets. “Violent domestic terrorism is becoming tragically more frequent,” he says. “We have to respond.”
Federal public defender Lisa Lorish immediately rebutted Cullen’s case against the RAM four. On behalf of Ben Daley, she filed a motion to dismiss. Calling the federal Anti-Riot Act “overbroad” and “unconstitutionally vague,” she argued that “it seeks to punish defendants for engaging in protected First Amendment freedoms of speech and peaceable assembly.”
Cullen fired back on March 8: “The First Amendment does not, and has never, protected incitement to violence or violent actions.” And: “Participation in a political rally does not grant individuals license to engage in mayhem.” On April 19, Cole White was freed after pleading guilty and agreeing to cooperate with the prosecution. On May 2, U.S. District Judge Norman Moon denied Lorish’s motion to dismiss. With the case proceeding and video evidence stacked against them, the three remaining RAM defendants pleaded guilty the next day. (Not long after, a California judge threw out a similar case based on the Anti-Riot Act for violating the First Amendment. If appealed, the two cases could wind up before the Supreme Court.)
Three months after pleading guilty, Daley, Miselis and Gillen shuffled into court for their sentencing, dressed in orange prison suits, their hands and feet in shackles. (White would be sentenced separately.) Several days earlier, Cullen had upped the ante, asking Moon to elevate their actions to hate crimes, which would add many months to their time behind bars. “It’s crucial that we send a message of deterrence for other militant white supremacists,” he told the court.
A former dean of the Yale Law School sounds a warning.
Anyone who has followed the news from college campuses over the past few years knows they are experiencing forms of unrest unseen since the late 1960s.
Now, as then, campuses have become an arena for political combat. Now, as then, race is a central issue. Now, as then, students rail against an unpopular president and an ostensibly rigged system. Now, as then, liberal professors are being bullied, denounced, demoted, threatened, sued and sometimes even assaulted by radical students.
But there are some important differences, too. None of today’s students risk being drafted into an unpopular, distant war. Unlike the campus rebels of the ’60s, today’s student activists don’t want more freedom to act, speak, and think as they please. Usually they want less.
Most strange: Today’s students are not chafing under some bow-tied patriarchal WASP dispensation. Instead, they are the beneficiaries of a system put in place by professors and administrators whose political views are almost uniformly left-wing and whose campus policies indulge nearly every progressive orthodoxy.
So why all the rage?
The answer lies in the title of Anthony Kronman’s necessary, humane and brave new book: “The Assault on American Excellence.” Kronman’s academic credentials are impeccable — he has taught at Yale for 40 years and spent a decade as dean of its law school — and his politics, so far as I can tell, are to the left of mine.
But Yale has been ground zero for recent campus unrest, including a Maoist-style struggle session against a distinguished professor, fights about “cultural appropriation,” the renaming of Calhoun (as in, John C.) College, and the decision to drop the term “master” because, to some, it carried “a painful and unwelcome connotation.”
It’s this last decision that seems to have triggered Kronman’s alarm. The word “master” may remind some students of slavery. What it really means is a person who embodies achievement, refinement, distinction — masterliness — and whose spirit is fundamentally aristocratic. Great universities are meant to nurture that spirit, not only for its own sake, but also as an essential counterweight to the leveling and conformist tendencies of democratic politics that Alexis de Tocqueville diagnosed as the most insidious threats to American civilization.
What’s happening on campuses today isn’t a reaction to Trump or some alleged systemic injustice, at least not really. Fundamentally, Kronman argues, it’s a reaction against this aristocratic spirit — of being, as H.L. Mencken wrote, “beyond responsibility to the general masses of men, and hence superior to both their degraded longings and their no less degraded aversions.” It’s a revolt of the mediocre many against the excellent few. And it is being undertaken for the sake of a radical egalitarianism in which all are included, all are equal, all are special.
“In endless pronouncements of tiresome sweetness, the faculty and administrators of America’s colleges and universities today insist on the overriding importance of creating a culture of inclusion on campus,” Kronman writes.
This is a bracing, even brutal, assessment. But it’s true. And it explains why every successive capitulation by universities to the shibboleths of diversity and inclusion has not had the desired effect of mollifying campus radicals. On the contrary, it has tended to generate new grievances while debasing the quality of intellectual engagement.
Hence the new campus mores. Before an idea can be evaluated on its intrinsic merits, it must first be considered in light of its political ramifications. Before a speaker can be invited to campus for the potential interest of what he might have to say, he must first pass the test of inoffensiveness. Before a student can think and talk for himself, he must first announce and represent his purported identity. Before a historical figure can be judged by the standards of his time, he must first be judged by the standards of our time.
All this is meant to make students “safe.” In fact, it leaves them fatally exposed. It emboldens offense-takers, promotes doublethink, coddles ignorance. It gets in the way of the muscular exchange of honest views in the service of seeking truth. Above all, it deprives the young of the training for independent mindedness that schools like Yale are supposed to provide.
I said earlier that Kronman’s book is brave, but in that respect I may be giving him too much credit. Much of his illustrious career is now safely behind him; he can write as he pleases. Would an untenured professor have the guts to say what he does? The answer to the question underscores the urgency of his warning.
If they’re not held accountable at school, what’s to stop them from becoming the villain of another woman’s #MeToo story once they enter the work force?
Among other changes, her proposed rule would require schools to dismiss all incidents that do not meet an extremely narrow definition of sexual harassment: “so severe, pervasive and objectively offensive that it effectively denies a person equal access” to education. As Dana Bolger, a co-founder of Know Your IX, a national youth-led campaign against sexual violence, has pointed out, some courts have ruled that a rape does not meet this standard.
The rule would essentially eliminate schools’ responsibility to respond to incidents off campus, which make up 95 percent of sexual assaults of female students, according to the Department of Justice. Moreover, schools would not be legally responsible for addressing any sexual harassment that is not reported to a school official designated to deal with that issue.
The overall effect of the proposed rule — which supporters say would restore due-process rights to those accused of sexual assault and harassment — would be to make reporting, already an uphill battle for raped and harassed students, feel even more futile.
..“It is completely illogical that at a time when the public is finally coming to terms with the reality of how prevalent sexual violence is thanks to initiatives like Tarana Burke’s #MeToo movement, the DeVos administration is simultaneously attempting to weaken Title IX protections for survivors.”
It’s safe to assume that most perpetrators of sexual violence who have come to public notice through #MeToo didn’t suddenly become abusers after landing jobs in newsrooms and board rooms and on movie sets. Their idea that one can abuse with impunity is learned, and in many cases it is learned where most things are learned — at school.
Violent sexual behavior that goes unchecked during college does not reach a natural end at graduation. In fact, many perpetrators of sexual violence are serial offenders: Of men who acknowledge using sexually violent or coercive behaviors, around one in five report committing repeat assaults. Another study found that men reporting a history of sexually aggressive behavior commit, on average, more than six sexual assaults.
Examples of school perpetrators who skirted accountability and then offended after graduation are already emerging. Jameis Winston, who was accused of rape as a student at Florida State University and is now a professional football player, reached a settlement with an Uber driver who said he sexually assaulted her in her car in 2016.
But the path from perpetrator of school sexual violence to workplace abuser need not be inevitable. Interventions including cognitive behavioral therapy have proved to be highly effective in preventing perpetrators from reoffending. Far from being unfair, responding seriously to perpetrators of school sexual violence is tough kindness. As the world grows increasingly intolerant of violent sexual behavior, early intervention and clear messages about appropriate behavior can prevent perpetrators from reoffending and facing more long-term career, legal and personal consequences.
While I obtained a restraining order against the man who assaulted me in college, he graduated and got a coveted job, where he’ll only have more and more power as time goes on. While I hope he’ll never become the villain of another woman’s #MeToo story, I am not optimistic. The proposed rules make it even more likely that men like him will leave their college campuses and enter the work force believing they can abuse women and be assured “Nothing wrong occurred.”
As a Harvard alumna and a survivor of sexual assault, I applaud Leaders’ activism to hold our institution accountable. Not just the undergraduate colleague but particularly Harvard Business School, where men demean, degrade, harass and assault women on a scale I’ve never witnessed prior to enrolling in classes there. These are the men going on to run America and the world’s economies… woe to the women who will suffer their crimes.
Today’s Fox prime-time lineup preaches paranoia, attacking processes and institutions vital to our republic and challenging the rule of law.
.. I took an oath to “support and defend the Constitution.” In moral and ethical terms, that oath never expires. As Fox’s assault on our constitutional order intensified, spearheaded by its after-dinner demagogues, I had no choice but to leave.
.. I increasingly was blocked from speaking on the issues about which I could offer real expertise: Russian affairs and our intelligence community. I did not hide my views at Fox and, as word spread that I would not unswervingly support President Trump and, worse, that I believed an investigation into Russian interference was essential to our national security, I was excluded from segments that touched on Vladimir Putin’s possible influence on an American president, his campaign or his administration.
.. I was the one person on the Fox payroll who, trained in Russian studies and the Russian language, had been face to face with Russian intelligence officers in the Kremlin and in far-flung provinces. I have traveled widely in and written extensively about the region. Yet I could only rarely and briefly comment on the paramount security question of our time: whether Putin and his security services ensnared the man who would become our president.
.. Trump’s behavior patterns and evident weaknesses (financial entanglements, lack of self-control and sense of sexual entitlement) would have made him an ideal blackmail target — and the Russian security apparatus plays a long game.
.. Fox never tried to put words in my mouth, nor was I told explicitly that I was taboo on Trump-Putin matters. I simply was no longer called on for topics central to my expertise. I was relegated to Groundhog Day analysis of North Korea and the Middle East, or to Russia-related news that didn’t touch the administration. Listening to political hacks with no knowledge of things Russian tell the vast Fox audience that the special counsel’s investigation was a “witch hunt,” while I could not respond, became too much to bear. There is indeed a witch hunt, and it’s led by Fox against Robert Mueller.
.. I must stress that there are many honorable and talented professionals at the Fox channels, superb reporters, some gutsy hosts, and adept technicians and staff. But Trump idolaters and the merrily hypocritical prime-time hosts are destroying the network — no matter how profitable it may remain