The white supremacist organizers of the Unite the Right rally, many of them broke and at least two representing themselves, have complained that they're going up against a legal adversary with superior talent and resources in the landmark federal civil trial underway in Charlottesville, Va.
Supported by the nonprofit Integrity First for America, the plaintiffs — Charlottesville residents injured in the violence that overtook the city on Aug. 11-12, 2017 — have obtained pro bono representation by dozens of attorneys, led by Roberta Kaplan and KarenDunn.
As the star litigator of Sines v. Kessler, Kaplan is the most renowned lawyer on either side of the case. As someone who argued before the US Supreme Court in United States vs. Windsor, a case that paved the way for legalizing same-sex marriage, she's one of the most influential lawyers of her generation. Kaplan has said she decided to sue the Unite the Right organizers because she realized that then-Attorney General Jeff Sessions "was not going to use the civil rights division of the Department of Justice — the way I personally believe it should be used — to do a large scale investigation, and that somebody needed to do something." Kaplan's initiative has earned her celebratory coverage in the Jewish press, including a story in the Jewish Telegraph Agency headlined, "This Jewish lawyer wants to break the back of the violent white nationalist movement."
Jason Kessler, who became the lead defendant in the case as the local organizer of Unite the Right, has publicly called attention to Kaplan's Jewish identity in a podcast interview with white nationalist publisher Jared Taylor, while Josh Smith, the attorney representing Traditionalist Worker Party defendants Matt Heimbach and David Matthew Parrott, made an allusion to Kaplan's Jewish identity without her by name.
In describing the case to Taylor and his far-right podcast audience, Kessler promoted a white victimization narrative, suggesting that if the defendants are found liable for conspiring to commit racially motivated violence, it will be because of the superior legal talents of opposing counsel, not because of the merits of the case.
"The problem is these are some of the best attorneys in the world and they're very skilled at deception and twisting words," Kessler told Taylor. "This lawsuit really shouldn't have gotten this far but not for the skill of these people, which is a dark skill and a horrible thing to accuse innocent people of something like this." Kessler went on to describe Kaplan as "a Jewish lesbian identitarian," repurposing a word associated with the racist and anti-immigrant far right in Europe to suggest that Kaplan's work waging a legal fight to deter racist violence is somehow equivalent to promoting white nationalism.
The kernel of truth in Kessler's statement is that none of the lawyers working on defense hold anywhere near the level of prestige that Kaplan does. James Kolenich, the lawyer representing Kessler and Identity Evropa founder Nathan Damigo, is based in Cincinnati. League of the South defendants Michael Hill and Michael Tubbs are represented by Bryan Jones, a local lawyer in Charlottesville. James Alex Fields Jr., who is serving a life sentence in prison for the murder of Heather Heyer, is represented by two attorneys from the Richmond, Va. law firm Duane, Hauck, Davis, Gravatt & Campbell.
Richard Spencer, who has previously told the court that the lawsuit is "financially crippling," is representing himself. So is neo-Nazi Christopher Cantwell, who is serving a prison sentence for threatening rape to extort a fellow white supremacist. William Edward ReBrook IV, who is representing former National Socialist Movement commander Jeff Schoep, wound up in the emergency room in Charlottesville on the second day of the trial. Kolenich substituted for ReBrook during jury selection. At the end of the day, Smith, the attorney for Heimbach and Parrott, reported to Judge Norman K. Moon that he had not been able to reach ReBrook, and no one in the court room knew why he was in the hospital and when he might be released. Judge Moon said he didn't think it would be possible to follow through on his plan to hold opening statements on Wednesday afternoon without having ReBrook back in the courtroom.
Among the lawyers representing the defendants, Josh Smith, is perhaps the most colorful. An attorney with a law practice based in Pittsburgh, Smith previously served as spokesperson for Paul Nehlen, a former congressional candidate who earned support from white supremacists and a Twitter ban for a racist tweet targeting Meghan Markle.
During a pre-trial last week, Smith attempted to resurrect a motion filed by Cantwell to exclude testimony about the Holocaust, which Judge Moon had already denied.
Smith went on to say during the hearing that, although he didn't plan to file a motion of his own, he hoped the plaintiffs wouldn't bring up the Holocaust to make their case against the defendants, making an issue of plaintiffs' counsel's Jewish identity without mentioning Kaplan by name.
"There's this stereotype, this Jewish stereotype that basically they can't go an hour without talking about the Holocaust," Smith said. "In this case, I think it's infinitely prejudicial. I want to make clear that if they mention a syllable of it, I'm going to object."
Kaplan interjected that references to the Holocaust during the trial would come from words spoken by the defendants themselves.
"It's in statements like, 'Burn the kikes, Gas the kikes,' Kaplan said. "Everyone knows that refers to the Holocaust."
The Daily Stormer, a crudely racist website run by defendants Andrew Anglin and Robert "Azzmador" Ray, which heavily promoted the rally, published an article in advance of Unite the Right declaring, "Next stop: Charlottesville, VA. Final stop: Auschwitz." And Ray allegedly shouted at counter-protestors who locked arms around the Thomas Jefferson statue at the University of Virginia as neo-Nazis flung lit torches at them on Aug. 11: "The heat here is nothing compared to what you're going to get in the ovens!"
Judge Moon confirmed to Smith during the Oct. 21 hearing that the motion had been previously denied.
"There was no blanket ruling that the Holocaust can't be mentioned," he said.
Integrity First for America Executive Director Amy Spitalnick noted in an email to Raw Story that antisemitism is baked into the white supremacist ideology that generated Unite the Right.
"Antisemitism is at the core of the Great Replacement conspiracy that helped fuel the Charlottesville violence, and so much other extremism since," she said. "Simply put, you can't understand white supremacy without understanding the antisemitism that fuels and animates it."
Smith responded to Raw Story by email with an extended comment citing an eight-year old Pew Research Center survey to support his statement about Jews' supposed preoccupation with the Holocaust. Smith alluded to the survey finding that 73 percent of US Jews say that "remembering the Holocaust" is "essential to their sense of Jewishness." In the email, Smith wrote that the Holocaust "is asserted to have taken place essentially from 1939 to 1945," suggesting he believes there is debate about whether it actually took place.
During the same hearing last week, Smith asked Judge Moon to reconsider a decision to exclude a report commissioned by the city of Charlottesville on the violence that took place in the summer of 2017 as hearsay. Following Moon's invitation to file a formal motion, Smith submitted a two-page filing that did not include a single legal precedent while directing personal comments towards the plaintiffs — something the judge has repeatedly admonished the parties to avoid.
"The undersigned, having entered into this four-year, 1,300-plus docket entry behemoth of a litigation only six weeks ago, is diligently working to get up to speed in time for trial," Smith wrote. He went on to argue that "the court should not entertain plaintiffs' litany of lame, cheap excuses for why it should refuse to consider admitting the Heaphy Report."
Smith closed by writing, "The undersigned talks much, much faster than he is able to write, and he certainly does not mind if such oral argument is transcribed verbatim (which is already being done for such hearings, anyway) and simply attached to the motion in place of his written argument. He also does not mind if plaintiffs' counsel wishes to respond to such oral argument with a written reply (in addition to its own oral argument) so that they can get in 'the last word' on the issue. (The undersigned knows how much plaintiffs' counsel likes that.)"
Smith's journey through the alt-right movement begins with an unlikely origin story. He acknowledged for a 2018 HuffPost profile that he was born Daniel Joshua Nusbaum and that his grandmother is buried in a Jewish cemetery in Pittsburgh. Smith, who legally changed his name, told reporter Luke O'Brien that he considers himself Jewish "in a racial sense, yes, because one obviously cannot change one's DNA," but "in the religious sense, no."
HuffPost republished tweets from Smith under the username @EmericaFirst that referred to Jews being "expelled from their host nations" and praising former Ku Klux Klan leader David Duke as "an extremely intelligent man who cares deeply about his nation and his race."
HuffPost reported that Smith was subject to a restraining order forbidding him from contacting an ex-boyfriend in 2012. HuffPost reported that during the hearing, "Smith rushed out of the courtroom as the judge issued a warning about the traits shared by people whom restraining orders fail to deter from violence: obsessive jealousy, fixed ideations, previous legal problems."
The article quoted the judge as saying that "Mr. Smith has all of those markers," and then advising his ex-boyfriend to "be careful in public places."
By 2018, Smith had renounced homosexuality, telling HuffPost: "It is now clear to me that such behavior (homosexuality, transgenderism, all of it), as well as the culture that surrounds it, is fundamentally degenerate and destructive to the very foundations of civilization, and thus can never be promoted in any healthy society."
However Smith may have arrived at his beliefs, they appear to be roughly aligned with those of his new clients.
Parrott has been quoted as saying that "homosexuality is a dangerous, degenerate, diseased, and dysfunctional lifestyle that's viscerally disgusting," while antisemitic conspiracy theories arguing that Jews secretly control the US government have figured in many of Heimbach's speeches, according to a report published by the Southern Poverty Law Center.