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.
The Curse of Xanadu
It was the most radical computer dream of the hacker era. Ted Nelson’s Xanadu project was supposed to be the universal, democratic hypertext library that would help human life evolve into an entirely new form. Instead, it sucked Nelson and his intrepid band of true believers into what became the longest-running vaporware project in the history of computing – a 30-year saga of rabid prototyping and heart-slashing despair. The amazing epic tragedy.
.. The inventor suffers from an extreme case of Attention Deficit Disorder, a recently named psychological syndrome whose symptoms include unusual sensitivity to interruption.
If he is stopped in the middle of anything, he forgets it instantly. Only by running his own tape recorder could Nelson be confident that his words would not float off, irrecoverably, into the atmosphere.
.. Nelson’s anxiety about forgetting is complicated by the drugs he takes. For his ADD, Nelson takes Cylert; for his agitation, he takes Prozac; for sleeplessness, he takes Halcion.
.. Although inconvenienced by his disorder, Nelson is nonetheless proud of it. “Attention Deficit Disorder was coined by regularity chauvinists,” he remarked. “Regularity chauvinists are people who insist that you have got to do the same thing every time, every day, which drives some of us nuts. Attention Deficit Disorder – we need a more positive term for that. Hummingbird mind, I should think.”
.. He wanted to be a writer and a filmmaker, but he needed a way to avoid getting lost in the frantic multiplication of associations his brain produced. His great inspiration was to imagine a computer program that could keep track of all the divergent paths of his thinking and writing. To this concept of branching, nonlinear writing, Nelson gave the name hypertext.
.. “I have a terrific math problem,” Nelson said. “I still can’t add up a checkbook: I can add a column of figures five times, get four different answers, and none of them will be right. I’m very accident-prone and extremely impatient.
.. Nelson, with his unfocused energy, his tiny attention span, his omnivorous fascination with trivia, and his commitment to recording incidents whose meaning he will never analyze, is the human embodiment of the information explosion.
.. By the time Nelson reached college, his method of combating the regularity chauvinists was quite sophisticated; he put his teachers off with the theories of writer Alfred Korzybski, who denounced all categories as misleading. But this hatred of categories did not produce in Nelson a fuzzy, be-here-now mysticism. On the contrary, Nelson loved words, which were tools for memory, but he hated the way that traditional writing and editing imposed a false and limiting order. Nelson had no interest in the smooth, progressive narratives encased in books. He wanted everything to be preserved in all its chaotic flux, so that it could be reconstructed as needed.
.. He moved quickly into the most complex theoretical territory, asking questions that still challenge hypertext designers today. For instance, if you change a document, what happens to all the links that go in and out? Can you edit a document but preserve its links? What happens when you follow a link to a paragraph that has been erased?
.. Almost 20 years later, one of the Resistors, Lauren Sarno, who was 14 when she met Nelson, would become his personal assistant. In 1987, Sarno would spend thousands of hours reconstructing Nelson’s masterpiece, Computer Lib, so it could be reprinted by Microsoft Press.
.. Gregory’s dismissive contempt can be piercing, but Nelson’s speculative mania is indeflatable.
.. Gregory and his colleagues were trying to build a universal library on machines that could barely manage to edit and search a book’s worth of text.
.. While he knew how to fix and program computers pretty well, he was not a computer scientist or an élite researcher, and his persistent sadness compelled him to seek a destiny greater than tweaking corporate and commercial machines. In managing his depression, Gregory found that it helped to have something productive to do; the computer was always there, and when he felt his sorrow well up, he knew he could sit in his chair, stare at the screen, and begin to hack.
.. Around this time, Nelson contemplated suicide and got as far as holding the pills in his hand. He ended his revised version of Literary Machines with words of farewell: “We have held to ideals created long ago, in different times and places, the very best ideals we could find. We have carried these banners unstained to this new place, we now plant them and hope to see them floating in the wind. But it is dark and quiet and lonely here, and not yet dawn.”
.. Walker realized the Xanadu code was not finished, but he also noticed that Xanadu had never had the benefit of a serious, commercial development effort.
.. This arrangement was important, for while Nelson’s presentations were inspiring, his high self-regard and his pronounced difficulty organizing and finishing tasks made him an ineffective manager.
.. Regular paychecks allowed them to be revolutionaries and pay their rent.
.. Divisions were already brewing: on one hand, the Xerox PARC alumni favored the new programming language Smalltalk and found themselves often in agreement; on the other, the old-style C hackers, like Johan Strandberg, McClary’s closest friend on the project, tended to be more skeptical, traditional, and careful.
.. Ten years after the Swarthmore summer, Miller did not want to release a creaky and crippled version of the software he had helped design.
.. Nelson was frequently frustrated by his failure to convince casual questioners of the importance of his transclusion idea.
..
Miller noted that the current version of Xanadu handled transclusion in an extremely clumsy fashion. It also lacked the ability to keep track of different versions, did not scale well, had no multimedia capabilities, no security features, and performed poorly. The years of work Gregory had devoted to writing code seemed as much a burden as a resource. Miller wondered if it wasn’t time to wipe the slate clean and start again.
.. Soon after the Autodesk investment, the power to control Xanadu’s development began to slip from Gregory’s grasp. His erratic behavior prevented him from rallying support as Miller and Stiegler took charge.
.. “It was not rapid prototyping – it was rabid prototyping,” said one of McClary’s friends who watched the project closely. “They were just randomly hacking and coming up with these groovy algorithms.”
.. To get his bearings, he challenged the Xanadu architects to describe a typical customer for their software. He found their answers vague. In Miller’s view, the Xanadu technology was so radical that predicting its future uses was difficult.
.. One branch of General Schematics involved his Xanadu designs, but another branch was what he called “The General Theory of Status, Territory, and the Paradigm.”
.. A visitor to Nelson during his years at Autodesk recalls an evening when the inventor, wearing a velvet vest and a satin shirt, lectured about social status and its relationship to an internal, biological status regulator, called a biotstat. However, Nelson’s book on the topic, Biostrategy and the Polymind, which he considers the “foundation” for the next generation’s social sciences, was never published because he mislaid the computer printout with his revisions.
.. Walker marveled at the programmers’ apparent belief that they could create “in its entirety, a system that can store all the information in every form, present and future, for quadrillions of individuals over billions of years.” Rather than push their product into the marketplace quickly, where it could compete, adapt, or die, the Xanadu programmers intended to produce their revolution ab initio.
.. To industry analysts with influence over the price of Autodesk shares, the crisis at Autodesk looked like evidence of a battle between headstrong hackers who built the company, such as Walker, and professional managers who arrived later.
.. Nelson was startled by this turn of events. Every time the inventor had asked about Xanadu’s progress at Autodesk, he had been told that the system would be ready within six months. It was not until a Xanadu meeting in the summer of 1992 that he first felt the cold shock of reality. “This feeling came over me – my God, they are not going to do it,” he says. “I had believed them all this time.”
.. The new executive concluded that the key to Xanadu was its potential as part of a publishing and royalty system, and he reached out to a company that was attempting to manage an enormous number of royalty and copyright contracts – Kinko’s. Xanadu’s proprietary data structure offered the possibility of a unified tracking system for all the college material Kinko’s was printing.
.. Just as the negotiations with Kinko’s were getting under way, Nelson, whose lifelong dream was about to take its first step toward genuine, if diminished, realization, attempted to take over the company. The programmers, who had seen Nelson’s management style firsthand during the early ’80s, resisted.
“There wasn’t anything to fight over,” Shapiro says. “If we did not complete the technology and sell it, everybody would die. But Ted was determined to control it. The more determined Ted got to control it, the more determined the programmers got not to be under his thumb.”
.. But they were facing a master strategist who understood the power of escalation. Nelson soon found a way to provoke the desired crisis. “I nominated Roger Gregory to the board of directors,” recounts Nelson triumphantly.
..
Shapiro had come to represent, to Nelson, the narrow-minded managers and punishing authority figures the inventor despised. To Nelson, Shapiro was “an asshole.” To Shapiro, Nelson was “an arrogant bastard.” Nelson claims not to remember the details of the conflict, but according to Shapiro, the end came at a board meeting in the end of 1992, when Nelson said frankly that he was not going to cooperate with the plans of any company that had Shapiro in control.
.. By the time the battle was over, Kinko’s senior management had stopped returning phone calls, most of Autodesk’s transitional funding had been spent on lawyers fees, and the Xanadu team had managed to acquire ownership of a company that had no value.
.. The Xanadu philosophy had always held that if a perfect back end could be created, the front end would take care of itself.
.. “There were links, you could do versions, you could compare versions, all that was true,” Jellinghaus reports, “provided you were a rocket scientist. I mean, just the code to get a piece of text out of the Xanadu back end was something like 20 lines of very, very hairy C++, and it was not easy to use in any sense of the word. Not only was it not easy to use, it wasn’t anything even remotely resembling fast.
.. “I don’t have any sympathy for them. It is beyond my comprehension for somebody to quit just because they have not been paid for six months.”
.. He has baptized this system “transcopyright.” Transcopyright is not a technology; it is Nelson’s suggestion for a contractual solution to copyright problems. Nelson argues that electronic publishers should allow anybody to republish their materials, provided that republication takes place by means of a pointer to the original document or fragment.
.. Xanadu, the grandest encyclopedic project of our era, seemed not only a failure but an actual symptom of madness.
.. To Nelson, the swirling currents under his grandfather’s boat represented the chaotic transformation of all relationships and the irrecoverable decay associated with the flow of time. His Xanadu project was meant to organize this chaos, to channel this flow.
..
“Why?” I asked.
“Total insanity,” Gregory answered, both hands squeezing his face.
Roger Gregory @ Xanadu
Sorry for the delay, and I don’t have much time now, but I thought I should send you something so you know I’m listening.
Ive been sitting on xanadu green (as described in Literary Machines), looking for a customer or a product. I’ve put
too many years into it since 1976, but till I have some real target product or user (not Ted) I’m trying not to write more code.The server needs a bit of work, to work with machines a million times larger than the 80 Meg disk Sun one that we built it on, currently
the disk bit map is limited to a few gig, and it would take a few days to fix that. The bigger question on that is the rightish design, but the real thing is what it the product.Roger Gregory
roger@xanadu.net
415 572-9634
Brisbane, CA (San Franscisco)