Some 'very fine people' walk into a courthouse

Dispatch from the big federal lawsuit in Charlottesville

Greetings from Charlottesville. Today is the third day of Sines v. Kessler, the federal lawsuit brought against the organizers of the white supremacist rampage that turned this normally sleepy college town into a symbol of racial violence around the world. The suit is being brought by ten injured plaintiffs with the help of a New York-based nonprofit. Their overriding goal: to bankrupt and thus dismantle the network of fascist hate groups that tried to use this town as a jumping-off point to national power four years ago.

Jury selection is plodding along, as the judge, plaintiffs, and defense—including two white supremacists who are representing themselves—argue over which citizens will decide their case. The national media is gathering as well. I’ve been off in a side room with many of them, watching the proceedings on a video feed. (Citing Covid protocols, courtroom attendance is limited to the judge, staff, and parties.)

We’ve all been drawn to this red-brick courthouse for a reason, I think. Just as “Charlottesville”—the event—was a bellwether for the racist violence of the Trump years, this case could gauge the tenor of the response. Is there an appetite for accountability—which could carry on to successor events like the Kenosha riots or January 6? Or will a jury of ordinary Virginians follow the ex-president’s lead and blame no one by blaming everyone—shrugging off the two days of terror by chalking it up to “very fine people on both sides?”

Caught in the webs

If there’s one word that sums up Sines v. Kessler, it’s “conspiracy.”

The plaintiffs’ case depends on their ability to prove one, in its sense as a legal term. Their allegation is that a network of individuals and organized hate groups—over 20 defendants including Jason Kessler, Richard Spencer, car-attacker James Fields, and chapters of the National Socialist Movement and Ku Klux Klan—expressly conspired to unleash havoc on August 11 and 12, 2017. The white nationalists’ mission, according to the plaintiffs’ suit, was to “terrorize … residents, commit acts of violence, and use the town as a backdrop to showcase for the media and the nation a neo-nationalist agenda.”

The defendants, on the other hand, were animated by their belief in a conspiracy theory. Replacement theory,” or the “Great Replacement,” is a belief that a supposed Jewish cabal is masterminding a program of social changes and large-scale immigration aimed at displacing white Christian (and ex-Christian) Americans. That was what the Nazis and “alt-right” were referring to when they chanted “Jews will not replace us” at the now-notorious nighttime tiki torch rally on the University of Virginia’s campus. Or, as defendant Michael Hill of the racist League of the South put it that summer: “If you want to defend the South and Western civilization from the Jew and his dark-skinned allies, be at Charlottesville on 12 August.”

One difference between the two alleged conspiracies is evidence. The plaintiffs have a great deal of it, much of it drawn from a trove of leaked Discord chats published by the media collective Unicorn Riot. Those logs show how the defendants planned for two days of intensive violence, as participants in their Discord forums swapped tips on which weapons to carry and how to pre-arrange their excuses of “self-defense.” Defendant Andrew Anglin’s Daily Stormer website promised: “Next stop: Charlottesville. Final stop: Auschwitz.”

The white supremacists’ conspiracy theory on the other hand is belied not only by its insanity but by its age. The Great Replacement” fantasy is at least as old as Le Camp des Saints, a 1973 dystopian French novel that imagined hordes of mindless African and Asian refugees laying waste to Europe and forcing a remnant of whites to take refuge in Switzerland. (This has not happened.) In America, the idea of “white genocide” is even older—rooted in fears that Black or Native Americans will seek out revenge for what generations of European settlers did to them. Over a century ago, Theodore Roosevelt and his allies in the eugenics movement also warned of a coming “race suicide” of white Americans. (The immigrants the 26th president was most worried about were Irish, Italians, Poles, and Jews—most of whom are simply considered white by most Americans today.)

Objectivity, in other words, is an indispensable tool in this case. Separating fantasy from fact, real illegal conspiracies from phantom theories is one fulcrum on which justice will turn. So too is moral clarity—the long-generally shared sense that overtly violent racist groups such as Nazis and the Ku Klux Klan are simply too harmful to be allowed off the margins of society.

But are either true objectivity or moral clarity possible in America today, especially when the subject is race or racism? Judging from the first two days of jury selection, the white-nationalist defendants are hoping the answer is no.

Into the breach

Throughout the jury selection process, U.S. District Judge Norman K. Moon, an 85-year-old Clinton appointee, has often asked potential jurors the same question: Are you concerned about racism against white people? That question—along with identically worded ones about Black, Hispanic, and Jewish people—is posed on the juror questionnaire. The focus on the white version during voir dire likely comes at the behest of the defense.

When a potential juror says no—or even expresses skepticism that white people can experience racism in the same way as an actually disadvantaged minority—the Nazi defendants howl, and demand the juror be disqualified for cause. “That is Critical Race Theory talk, that is an anti-white theory,” said the “Crying Nazi” Christopher Cantwell, who is representing himself.

Other jurors have been quizzed on why they consider antifa or Black Lives Matter protesters to be “domestic terrorists,” or whether, as Moon put it, “one side is more at fault in this case than the other.”

This is the slippery ground of moral relativism on which the defendants would prefer to fight. If defendants like Cantwell—who once told a radio show “let’s fucking gas the k*kes and have a race war,” then actually pepper-sprayed counter-protesters—can pose as part of a two-sided moral struggle in which they are no more or less racist than their victims, they stand a far better chance of being absolved.

It seems likely that such confusion will be intentionally accentuated as the trial goes on. On Tuesday, Joshua Smith, a lawyer for Matthew Heimbach and his expressly white nationalist Traditionalist Worker Party, took a moment to call the term “white supremacy” a “silly phrase.”

‘On both sides’

The white nationalists are helped in this effort by both the structure of the court and larger fights within American politics. By its nature, a case like Sines v. Kessler pits two equal parties against one another. Both are granted wide latitude and assumed to be acting in good faith. It is a performative space, in which a violent antisemite and racist like Richard Spencer can don his tailored suits and repeat police-procedural phrases such as “with all due respect, your honor.”

In this system, the only qualified jurors are those who swear in voir dire that they have not yet taken a side between uniformed Nazis and the people they injured and killed. Potential jurors who say things like “I believe they’re evil and their organizations are evil,” or assign blame for the violence on “the racists, the ones who started the riot,” were immediately dismissed on Tuesday. Those who referenced superficially neutral yet politically marked right-wing slogans such as “All Lives Matter” were allowed to proceed. Such assumptions are so commonplace, they hardly raise an eyebrow from the national press.

This may be necessary for a trial that will not be overturned on appeal. But it means that the jury will likely lean politically toward the reactionary right in ways the defendants have spent years learning to exploit. This is a fact not lost on the lead defendant, Jason Kessler. He took to social media to crow that a prospective juror who inveighed against “anti-white hatred” on the stand was “Based.” (The juror was eventually struck by the plaintiffs, who like the defendants have a limited number of vetoes to use for any reason.)

If this sounds familiar to you, it’s because such games are played daily in politics and the media. Kessler has defended himself with value-neutral concepts from the culture wars, such as “free speech.” On Monday he tweeted: “In the era of Cancel Culture, America NEEDS to reaffirm its commitment to robust, extremely offensive political speech.”

Kessler’s “anti-woke” allies may not want the backing of a white nationalist deemed too racist for the Proud Boys. But the resemblance goes deeper than that. Kessler’s one-time freelance employer at the Daily Caller, Tucker Carlson, routinely uses his show to endorse the white-supremacist “Great Replacement” conspiracy theory—earning plaudits from defendants in the courthouse today.

Unite the Right’s goal was to herald the arrival of fascist streetfighting tactics and overt racist speech in the mainstream. It was clear that they had failed when Trump and his more respectable allies were forced politically to retreat to equivocations between the white supremacists and the anti-racist counter-protesters—and ultimately to mount a disingenuous PR campaign denying he had ever done so.

The defendants seem to have since adapted to the amoral status quo—less dramatic than public Nazism, but still useful to Nazis and their sympathizers—and hope to skate away on the absolution it brings. If the plaintiffs, on the other hand, can achieve a measure of justice despite the forced neutrality of the court and those watching it, that could forge a powerful precedent in similar trials to come.

Edited by Sam Thielman

On Kenosha and the vigilante Kyle Rittenhouse check out this story by Charles Homans

Marella Gayla ponders Asian American identity via Jay Caspian Kang’s new book

Impunity is a prerogative of empire,” says Spencer Ackerman, correctly

And hey! Have you pre-ordered Gangsters of Capitalism: Smedley Butler, the Marines, and the Making and Breaking of America’s Empire? Publisher’s Weekly just called it an “eye-opening portrait of American hubris.”

Update (10/28/21): Corrected name of Traditionalist Worker Party and number of defendants