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 senior administration official involved in the process said, “We’re not pulling out. We’re not pulling back. We’re still supportive. He’s still going through the White House vetting process and then he will go up to the Senate Banking Committee—if he gets through vetting process. In other words, no change. We’re sticking with Moore.”
When asked about Mr. Moore, Corey Lewandowski, Mr. Trump’s former campaign manager who remains in contact with the president, said Mr. Trump has been influenced by the fight over his last Supreme Court nominee, Brett Kavanaugh, who came under withering scrutiny for alleged sexual misconduct and heavy drinking in high school and college.
“Judge Kavanaugh is Justice Kavanaugh because this president is willing to stand up and fight for him,” Mr. Lewandowski said. “And he’s willing to do that for other people.”
WASHINGTON — At first, he vowed to “take the mantle” for closing part of the federal government. Then he blamed Democrats, saying they “now own the shutdown.” By Friday, President Trump was back to owning it again. “I’m very proud of doing what I’m doing,” he declared.
Two weeks into the showdown over a border wall, Mr. Trump is now crafting his own narrative of the confrontation that has come to consume his presidency. Rather than a failure of negotiation, the shutdown has become a test of political virility, one in which he insists he is receiving surreptitious support from unlikely quarters.
Not only are
- national security hawks cheering him on to defend a porous southern border, but so too are
- former presidents who he says have secretly confessed to him that they should have done what he is doing. Not only do
- federal employees accept being furloughed or forced to work without wages,
- they have assured him that they would give up paychecks so that he can stand strong.
Never mind how implausible such assertions might seem. The details do not matter to Mr. Trump as much as dominating the debate. After an oddly quiescent holiday season in which he complained via Twitter about being left at home alone — “poor me” — he has taken the public stage this week clearly intent on framing the conflict on his own terms.
People close to the president described him as emboldened since members of Congress returned to Washington after the break, giving him not only a clear target to swing at but helping him focus on a fight that he is convinced is a political winner. One aide said Mr. Trump believes he has gained the upper hand in the public battle.
Although surveys at first showed more Americans blaming him for the shutdown than Democrats, later polling showed the fault more evenly split. And the voters he cares most about, his core conservative supporters, are more enthusiastic than the public at large. He has told people that “my people” love the fight, and that he believes he is winning.
In the past three days, Mr. Trump has appeared in public three times to get his version of the story out while Democrats celebrated their takeover of the House. At a lengthy cabinet meeting on Wednesday, an appearance with border patrol union leaders on Thursday and a news conference with Republican congressional leaders in the Rose Garden on Friday, he engaged in quintessentially Trumpian stream of conscious discussions that ranged widely and unpredictably.
At one point, he argued that the Soviet Union was right to invade Afghanistan in 1979 to stop terrorists, a revisionist version that provoked a strong reaction in Kabul and earned a sharp rebuke from the often supportive editorial page of The Wall Street Journal, which said, “We cannot recall a more absurd misstatement of history by an American President.”
Mr. Trump’s version of events differed even from the other people in the room at Friday’s meeting at the White House. When Democratic congressional leaders emerged after two hours, they described a “contentious” session with no meaningful progress as the president threatened to keep the government closed for “months or even years.” When Mr. Trump emerged shortly afterward, he described a “very, very productive meeting” and predicted the standoff could be “fixed very quickly.”
Two people briefed on the meeting said that White House officials viewed the conversation as the first civil discussion that had taken place between the two sides, and it left some of Mr. Trump’s aides hopeful. Indeed, Mr. Trump made a point of publicly saying nothing but relatively positive things about the Democrats on Friday.
Optimistic that a deal really is within reach, the president said he would have Vice President Mike Pence; Kirstjen Nielsen, the homeland security secretary; and Jared Kushner, his son-in-law and senior adviser, meet with Democrats over the weekend.
But there were questions about his own side of the aisle. Senator Mitch McConnell, Republican of Kentucky and the majority leader, unlike other congressional Republican leaders, was not present for the Rose Garden news conference. “He’s running the Senate,” Mr. Trump explained, even though the Senate had adjourned hours earlier and Mr. McConnell’s spokesman said the senator did not know about the news conference.
The president nonetheless was feeling energized by support he said he had received for the fight — including the very federal employees who are not being paid as a result of the partial shutdown.
By all public accounts, Mr. Trump had not spoken with his living predecessors since his inauguration until former President George Bush died last month. Mr. Trump called Mr. Bush’s son, former President George W. Bush, to offer condolences, but the subject of the wall did not come up, according to Mr. Bush’s office. A few days later, at the elder Mr. Bush’s funeral, Mr. Trump encountered his predecessors for the first time since taking office, but he sat quietly without talking with them during the service.
The younger Mr. Bush built miles of wall and fencing along the Mexico line while he was president, but said it could not cover the entire border and insisted that enforcement should be coupled with an overhaul of immigration law to permit many people in the country illegally to stay. Former President Barack Obama has repeatedly criticized Mr. Trump’s proposed wall, and former President Jimmy Carter has said technological improvements would be more effective at protecting the border.
The White House did not say afterward which presidents Mr. Trump was referring to, but a senior administration official said he was probably referring to public comments his predecessors have made about the need for border security, not necessarily for a wall specifically.
As he careened this week from subject to subject and assertion to assertion, an energized Mr. Trump seemed to be enjoying himself. He went on for more than an hour and a half on Wednesday and another hour on Friday.
“Should we keep this going or not, folks?” he asked reporters at one point before noticing that it was a cold January day in the Rose Garden.
“Should we keep this going a little bit longer?” he asked again. “Let me know when you get tired.”
One thing Mr. Trump was not was tired.
An argument last February between the White House chief of staff, John F. Kelly, and Corey Lewandowski, an informal adviser to President Trump, turned into a physical altercation that required Secret Service intervention just outside the Oval Office, according to a half-dozen people familiar with the events.
The episode, details of which have not been previously reported, is the latest illustration of the often chaotic atmosphere Mr. Trump is willing to tolerate in the White House as well as a reflection of the degree to which Mr. Kelly’s temper can be provoked.
The near brawl — during which Mr. Kelly grabbed Mr. Lewandowski by the collar and tried to have him ejected from the West Wing — came at a time when the chief of staff was facing uncertainty about how long Mr. Trump would keep him in his job. A guessing game over his departure has colored his tenure ever since.
Mr. Kelly, a retired four-star Marine Corps general, was widely hailed as the lone grown-up who could corral a staff full of bombastic and competing personalities when he was appointed in summer 2017. But Mr. Kelly has shown little inclination to curb his own instinct for confrontation, from scuffling with a Chinese official during a visit to Beijing last year to last week’s profanity-laced shouting match with John R. Bolton, the national security adviser, after a meeting with the president.
.. Anthony Scaramucci, who has written a book about being Mr. Trump’s communications director for 11 days until Mr. Kelly fired him after the release of a recording of his own profanity-laced call with a reporter, said on NBC’s “Meet the Press” on Sunday that Mr. Kelly had “hurt the morale inside the place.”
“And he’s hurt the president. And he has hissy fits,” Mr. Scaramucci said, adding that “he’s demonstrating his personality now the way he really is.”.. Mr. Kelly criticized Mr. Lewandowski to Mr. Trump for making so much money off the president in the form of his contract with the super PAC supporting the president’s re-election. Mr. Kelly also expressed his anger that Mr. Lewandowski had been criticizing him on television for his handling of the security clearance controversy related to Mr. Porter... The two then began arguing, with Mr. Lewandowski speaking loudly. Mr. Kelly grabbed Mr. Lewandowski by his collar, trying to push him against a wall, according to a person with direct knowledge of the episode.
Mr. Lewandowski did not get physical in response, according to multiple people familiar with the episode. But Secret Service agents were called in.
.. Mr. Kelly, who is called “the general” or “the chief” by his allies inside the West Wing, is widely seen as a diminished presence among the president’s advisers. Though Mr. Kelly has repeatedly said he expresses his honest opinions to Mr. Trump, he has shown little inclination or ability to curb some of the president’s impulses.
.. The president, for his part, has shown a certain reverence for men willing to engage in physical scuffles. Last fall, when Mr. Kelly was newly in his role, his willingness to engage angrily in meetings with Lt. Gen. H. R. McMaster, who at the time was the national security adviser, thrilled Mr. Trump. The president, who did not like General McMaster, gleefully told people about the skirmishes between the two men for weeks, saying it showed how tough Mr. Kelly was, a person familiar with the discussions said.
.. And The Wall Street Journal recently reported that Mr. Kelly got into a physical altercation with a Chinese official trying to gain access the so-called nuclear football
.. “I think Trump has decided it’s really a bad marriage,” said Chris Whipple, author of “The Gatekeepers,” a history of White House chiefs of staff, “that he has decided to muddle through.”