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.
What The Ebbs And Flows Of The KKK Can Tell Us About White Supremacy Today
As long as the United States has existed, there’s been some version of white supremacy. But over the centuries, the way white supremacy manifests has changed with the times. This includes multiple iterations of the infamous Ku Klux Klan.
According to the sociologist Kathleen Blee, the Klan first surfaced in large numbers in the 1860s in the aftermath of the Civil War, then again in the 1920s, and yet again during the civil rights era.
Blee is a professor and dean at the University of Pittsburgh, and the author of Inside Organized Racism: Women in the Hate Movement, as well as Understanding Racist Activism: Theory, Methods and Research. She says the anonymity allowed by the internet makes it difficult to track just how much white supremacist activity we’re seeing today.
But despite this difficulty, she and other experts say there’s been an indisputable uptick in hate crimes — and an overall rise in white supremacist violence: Earlier this fall, a gunman shot and killed 11 worshipers at a Pittsburgh synagogue. In 2017, a clash with protesters at the Unite The Right rally in Charlottesville, Va., left one woman dead. In 2015, the shooting at the Mother Emanuel AME church in Charleston, S.C., killed nine black churchgoers. And in 2012, a rampage at the Sikh Temple of Wisconsin in Oak Creek, Wisc., killed six people.
As we consider this spate of racist attacks, we thought it’d be helpful to talk to Blee about the ebbs and flows of white supremacy in the United States — and what, exactly, those past waves say about today’s political climate.
Our conversation has been condensed and edited for clarity.
First, can we talk about the various phases of white supremacy in the U.S. throughout history — and what caused those ebbs and flows?
The 20th to 21st century Klan actually formed after the Civil War, during the Reconstruction period. Then it was entirely contained within the South, mostly in the rural South. It [was] all men. There were violent attacks on people who were engaged, or [wanted] to be engaged, in the Reconstruction state, [including] freed blacks, southern reconstructionists, politicians and northerners who move to the South. That collapses for a variety of reasons in the 1870s.
Then, the Klan is reborn in the teens, but becomes really big in the early 1920s. And that is the second Klan. That is probably the biggest organized outburst of white supremacy in American history, encompassing millions of members or more. … And that’s not in the South, [it’s] primarily in the North. It’s not marginal. It runs people for office. It has a middle class base. They have an electoral campaign. They are very active in the communities. And they have women’s Klans, who are very active and very effective in some of the communities. That dissolves into mostly scandals around the late ’20s.
Then there’s some fascist activity around the wars — pro-German, some Nazi activity in the United States — not sizable, but obviously extremely troubling.
The Klan and white supremacy reemerge in a bigger and more organized way around the desegregation and civil rights movement — again, mostly in the South, and back to that Southern model: vicious, violent, defensive, Jim Crow and white rights in the South.
And then it kind of ebbs. After a while, it kind of comes back again in the late ’80s and the early 21st Century as another era. And then there’s kind of a network of white supremacism that encompasses the Klan, which is more peripheral by this time. Also Neo-Nazi influence is coming as white power skinheads, racist music, and also neo-Nazi groups. The Klans tend to be super nationalist, but these neo-Nazi groups have a big international agenda.
Then the last wave is where we are now, which is the Internet appears. The movement has been in every other era as movement of people in physical space like in meetings, rallies, protests and demonstrations and so forth. It becomes primarily a virtual world, and as you can see, has its own consequences — many consequences. It’s much harder to track. And then there are these blurred lines between all these various groups that get jumbled together as the alt-right and people who come from the more traditional neo-Nazi world. We’re in a very different world now.
That’s a long history. You mentioned that, for a variety of reasons, the Klan in the Reconstruction era collapsed. What are some of the factors that contributed to that?
I would say two things that mostly contributed to that ebb over time.
One is the white supremacist world, writ large, is very prone to very serious infighting. Internal schisms are quite profound in collapsing white supremacists, even as an entire movement, over time.
What’s that infighting look like? How racist to be?
No, no. It’s almost always power and money. So, for example, the ’20s Klan — I say “Klan” but in every era there were multiple Klans, they all have different names, they all have different leaders — they are trying to extract money from their groups, and they are all fighting about money …. and then over power, and who controls the power, because white supremacy groups don’t elect their leaders right away. To be a leader just means to grab power and control. So there’s a lot of contention in these groups of control.
It’s not ideas. Ideas aren’t that central. They have these certain key ideas that they promulgated — race and anti-Semitic ideas — but the fine points of ideological discussion don’t really occur that much in white supremacist groups, nor do they get people that agitated. It’s not like in other kinds of groups, where people might have various versions of ideas, versions of ideologies. [The Klan] just have kind of core beliefs. But they do tend to fight over ideas for money, power and access to the media.
So that’s the fighting. The other thing is, in different waves of history, there are prosecutions, either by the police or civil prosecutions that collapse groups and movements. Sometimes, there’s kind of a blind eye to white supremacist organizing, but at other times there is really successful either civil or state prosecutions of these groups that do debilitate them.
How does the longevity of white supremacy or these [hate] groups coincide with who has political power?
It’s very hard to create a generalization here. Certain groups, like the Klan, tend to rise and fall based on the threats to who is in power. The 1870s Klan [was] based on the Southern racial state formed during slavery being threatened by Reconstruction. In the 1920s, the idea was that political power [was] being threatened by this wave of immigrants. The 1920s Klan [was] very anti-Catholic, as well as racist and anti-Semitic. Part of this anti-Catholicism [was] based on the idea that Catholics were going to start controlling politics as well as the police.
There’s some really good analysis by some sociologists that showed that the Klan appeared in counties where there was the least racist enforcement of the law. Because in counties where the sheriff and the county government was enforcing racist laws, there was no need for the Klan.
How does this apply to this more recent wave of white supremacy?
Right now, we have an extremely heterogeneous group that we might call white supremacists. So some of them, probably the smallest group, are nationalistic. And probably the larger group are not particularly nationalistic. This is why it’s hard to make generalizations. It’s not the case that nationalist fervor just finds itself in the white supremacist movement. The person accused of the shooting in Pittsburgh is an example. If you look at [his] writings, they’re not nationalistic, they’re in fact anti-nationalistic. And that’s pretty common with white supremacy today — some of them have this sense that their mission is this pan-Aryan mission. They’re fighting global threats to whites and creating a white international defense. So that’s not a nationalist project, that’s an internationalist project.
And the other reason is there’s this idea among white supremacists in the United States that the national government is ZOG — Zionist Occupation Government — and that’s a shorthand way of saying that the national government is secretly controlled by an invisible Jewish cabal. So some of them will be amenable to very local government … they’ll embrace, and work with, and even try to seize control of the government at the county level. But generally, national politics are quite anametha for those two general reasons.
In the 1920s, synagogues were targeted by the KKK. Can you run through other examples of violence like this?
People will say the ’20s Klan was not as violent as other Klans. But that’s really because its violence took a different form. So there, the threat that the Klan manufactured was the threat of being swapped — all the positions of society being taken by the others — so immigrants, Catholics, Jews and so forth. So the violence was things like, for example, I studied deeply the state of Indiana where the Klan was very strong — pushing Catholics school teachers out of their jobs in public schools and getting them fired, running Jewish merchants out of town, creating boycott campaigns, whispering campaigns about somebody’s business that would cause it to collapse. So it’s a different kind of violence but it’s really targeted as expelling from the communities those who are different than the white, native-born Protestants who were the members of the Klan. So it takes different forms in different times. It’s not always the violence that we think about now, like shootings.
When did we start seeing the violence that we see today?
Well, the violence that we see today is not that dissimilar from the violence of the Klan in the ’50s and ’60s, where there was, kind of, the violence of terrorism. So there’s two kinds of violence in white supremacy.
- There’s the “go out and beat up people on the street” violence — that’s kind of the skinhead violence. And then there’s the sort of
- strategic violence. You know, the violence that’s really meant to send a message to a big audience, so that the message is dispersed and the victims are way beyond the people who are actually injured.
You see that in the ’50s, ’60s in the South, and you see it now.
I was wondering if we could kind of talk a little bit about the language we use when we talk about mass killings that are related to race, religion or ethnicity — especially about the second type of violence, “strategic violence,” that you describe. I’ve seen people use the phrase “domestic terrorism.” What do you make of that phrase?
Terrorism means violence that’s committed to further a political or ideological or social goal. By that definition, almost all white supremacist violence is domestic terrorism, because it’s trying to send a message, right? Then there’s that political issue about what should be legally considered domestic terrorism, and what should be considered terrorism. And that’s just an argument of politics, that’s not really an argument about definitions right now.
How these things get coded by states and federal governments is quite variable depending on who’s defining categories. But from the researcher point of view, these are terrorist acts because they are meant to send a message. That is the definition of terrorism. So it’s not just, you don’t bomb a synagogue or shoot people in a black church just because you’re trying to send a message to those victims or even to those victims and their immediate family. It’s meant to be a much broader message, and really that’s the definition of terrorism.
I think what we don’t want is for all acts of white supremacist violence to be thought of as just the product of somebody who has a troubled psyche. Because that just leaves out the whole picture of why they focus on certain social groups for one thing. [And] why they take this kind of mass horrific feature … so I think to really understand the tie between white supremacism and the acts of violence that come out of white supremacism, it’s important to think about that bigger message that was intended to be sent.
What are the most effective strategies to combat these ideas of white supremacy, or this violence?
I’d say the most effective strategy is to educate people about it, because it really thrives on being hidden and appearing to be something other than it is. I mean, millions of white supremacist groups have often targeted young people, and they do so often in a way that’s not clear to the young person that these are white supremacists, they appear to be just your friends and your new social life, like people on the edges who seem exciting. … And so helping people understand how white supremacists operate in high schools, and the military, and all kinds of sectors of society gives people the resources the understanding to not be pulled into those kinds of worlds.
Twenty years, or even 10 years ago, I would have said it’s really effective to sue these groups and bring them down financially, which was what the Southern Poverty Law Center was doing.
[Now,] they don’t have property; they operate in a virtual space. So the strategies of combating racial extremism have to change with the changing nature of it.