Defence lawyers and civil rights activists are questioning why the Department of Justice has taken on cases to begin with. They say most belong in state court, where defendants typically get much lighter sentences. And they argue federal authorities appear to be cracking down on protesters in an effort to stymie demonstrations.
"It is highly unusual, and without precedent in recent American history," said Ron Kuby, a longtime lawyer who isn't involved in the cases but has represented scores of clients over the years in protest-related incidents. "Almost all of the conduct that's being charged is conduct that, when it occurs, is prosecuted at the state and local level."
In one case in Utah, where a police car was burned, federal prosecutors had to defend why they were bringing arson charges in federal court. They said it was appropriate because the patrol car was used in interstate commerce.
This is not to say there hasn't been violence. Other police cars have been set on fire. Officers have been injured and blinded. Windows have been smashed, stores looted, businesses destroyed.
Of more than 300 arrested, there are about 286 defendants, others had charges dropped. Some live in cities like Portland and Seattle where local prosecutors declined to bring some protest-related charges.
Some of those facing charges undoubtedly share far-left and anti-government views. Far-right protesters also have been arrested and charged. Some defendants have driven to protests from out of state. Some have criminal records and were illegally carrying weapons. Others are accused of using the protests as an opportunity to steal or create havoc.
But many have had no previous run-ins with the law and no apparent ties to antifa, the umbrella term for leftist militant groups that Trump has said he wants to declare a terrorist organisation.
Even though most of the demonstrations have been peaceful, Trump has made "law and order" a major part of his re-election campaign, casting the protests as lawless and violent in mostly Democratic cities he says have done nothing to stymie the mayhem. If the cities refuse to properly clamp down, he says, the federal government has to step in.
"I know about antifa, and I know about the radical left, and I know how violent they are and how vicious they are, and I know how they are burning down cities run by Democrats," Trump said at an NBC town hall.
In dozens of cases, the government has pushed to keep the protesters behind bars while they await their trials amid the Covid-19 pandemic, which has killed more than 220,000 people across the US. There have been more than 16,000 positive cases in the federal prison system, according to a tracker compiled by AP and the Marshall Project.
In some cases, prosecutors have gone so far as appealing judge's orders to release defendants. Pre-trial detention generally is reserved only for people who are clearly dangers to the community or a risk of fleeing.
In Texas, Magistrate Judge Andrew Austin repeatedly challenged the prosecutor to explain why Cyril Lartigue, who authorities say was caught on camera making a Molotov cocktail, should be behind bars while he awaits his trial. Lartigue, of Cedar Park, described his actions that night as a "flash of stupidity," prosecutors said.
The 25-year-old lives with his parents in the Austin suburb and had never been in trouble with the law before and wasn't a member of a violent group.
The judge said there are lot of people "who do something stupid that's dangerous that we don't even consider detaining."
"I'm frustrated because I don't think this is a hard case," the judge said. "I have defendants in here with significant criminal histories that the government agrees to release."
"We have no evidence of him — at least that's been given to me — being a radical or a member of a group that advocates violence toward the police or others. We've got no criminal history. … What evidence is there that he's a danger to society?" the judge asked.
The judge allowed Lartigue to stay out of jail.
While some of the defendants clearly hold radical or anti-government beliefs, prosecutors have provided little evidence of any affiliations they have with organised extremist groups.
In one arrest in Erie, Pennsylvania, community members raised more than US$2500 to help with bail for a 29-year-old black man who was arrested after they said white people had come from out of town and spray painted a parking lot.
In thousands of pages of court documents, the only apparent mention of antifa is in a Boston case in which authorities said a FBI Gang Task Force member was investigating "suspected Antifa activity associated with the protests" when a man fired at him and other officers. Authorities have not claimed that the man accused of firing the shots is a member of antifa.
Others have social media leftist ties; a Seattle man who expressed anarchist beliefs on social media is accused of sending a message through a Portland citizen communication portal threatening to blow up a police precinct.
Several of the defendants are not from the Democratic-led cities that Trump has likened to "war zones" but from the suburbs the Republican president has claimed to have "saved." Of the 93 people arrested on federal criminal charges in Portland, 18 defendants are from out of state, the Justice Department said.
This has contributed to a blame game that has been a subplot throughout the protests. Leaders in Minneapolis and Detroit have decried people from out of state and suburbanites for coming into their cities and causing havoc. Trump in turn has blamed the cities for not doing their part.
More than 40 per cent of those facing federal charges are white. At least a third are black, and about 6 per cent Hispanic. More than two-thirds are under the age of 30 and most are men.
More than a quarter have been charged with arson, which if convicted means a five-year minimum prison sentence. More than a dozen are accused of civil disorder, and others are charged with burglary and failing to comply with a federal order. They were arrested in cities across the US, from Portland, Oregon, to Minneapolis, Boston and New York.
Tucked into the protest cases are accusations of far-right extremism.
Two Missouri militia members who authorities say travelled to Kenosha, Wisconsin, to see Trump's visit in the wake of the police shooting of Jacob Blake were arrested at a hotel in September with a cache of guns, according to court documents.
Three of the men arrested are far-right extremists, members of the "Boogaloo" movement plotting to overthrow the government and had been stockpiling military-grade weapons, court documents say.
FBI Director Christopher Wray recently told a congressional panel that extremists driven by white supremacist or anti-government ideologies have been responsible for most deadly attacks in the US over the past few years.
He said that antifa is more of an ideology or a movement than an organisation, though the FBI has terrorism investigations of "violent anarchist extremists, any number of whom self identify with the antifa movement."
- AP
