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It is fricking early. It's 6 38. I wanted to leave at six 30, but that's fine. Um, and I am headed to the Morton County Courthouse.

 It's day 1 of the Energy Transfer vs Greenpeace trial in Mandan, North Dakota. The courthouse won't open until 7:30. But I heard there was very limited seating in the courtroom, and I want to be sure to get in, even if it means waiting outside the door until it opens.

last week it was 30 below. Luckily, right now it's about 36 degrees, so if I'm standing around outside, I will survive.

It's important that I'm there to listen, because no one's gonna get to record 

You know, we had some pretty unfavorable rulings from the judge about press access. I'm pretty [ irritated that I'm not gonna be able to bring anything except a pen and paper in there. Um, the judge is worried about, uh, witness contamination and jury contamination, so he ruled 1000, that (nav interrupts) So he ruled that we can't even like record on our cell phones for note taking purposes.

Drilled and several other media organizations filed a request for a livestream of the trial. When the judge said no, we asked just to be able to record so we could get quotes right. That was a no, too. Now, we're waiting on the North Dakota Supreme Court, to respond to our appeal. But i'm not feeling optimistic.

I pull up to the courthouse. The parking spots in front of the brick building are empty.

Okay. The sheriff's the only one here. Me and the sheriff

I park the car and head in, leaving my recorder behind.

I did not need to get there this early. But it gives me time to take in the scene.

The courtroom is humble. It could be an office space, if it wasn't for all the wood furniture.  I sit on a light-colored wood bench that looks like a church pew. In front of me, dark wood paneling frames the judge's bench and the door to his chambers. Everything is laid out exactly like you'd expect, with a jury box to the judge's left. A law enforcement officer wearing a tactical vest observes from a corner of the room.

Other observers sit down around me. They're mostly Greenpeace people.

The judge enters from behind the stand, and we all stand up. Judge James Gion is around 70, with white hair and a white beard, and tired lines down his face. When I look him up later I'll learn that in his spare time he plays guitar and harmonica. He used to play in a country band called Dakota Gold.

And now come the potential jurors. Around 30 file into the room, filling the reserved audience pews. They're everyday midwesterners, dressed casually. Almost all of them are white.

Judge Gion greets the jurors with a notable North Dakota accent. "I want to congratulate you on being chosen for jury duty, because it is one of the highest obligations and privileges of our democratic system."

Only 11 people will actually sit on the jury for this trial. The lawyers for Energy Transfer and Greenpeace will spend the next two days selecting them.

Greenpeace has been trying for years now to move this trial to a different county. They say that Morton County residents are so biased against anti-pipeline protesters that there's no way Greenpeace could get a fair trial.

Every judge in this district recused themselves from the case because of  conflicts. The court had to pull Judge Gion from rural western North Dakota for this. But Greenpeace is stuck with Morton County Jurors. I'm not even sure there will be any jurors left after Greenpeace weeds out the biased ones.

The curtain is raised, and the trial is set to begin. It's scheduled to last five weeks. But  the next two days of jury selection will be what decides Greenpeace's fate. In fact, maybe it's already decided.

This season of Drilled we bring you SLAPP’d. The story an Indigenous nation fighting for its water, an international environmental nonprofit, and an energy giant using the courts to punish protestors. I'm Alleen Brown.

Energy Transfer's lawyer, Trey Cox stands behind a little podium, facing the potential jurors. He's blond and looks like a high school football coach.  He's got an intense energy, like he's about to unleash something.

Neither side is using their staff attorneys for this case. And Energy Transfer has hired a real doozy of a law firm.  Trey and most of the other lawyers for the company come from Gibson Dunn and Crutcher. Maybe you don't know their name, but you know their work. The firm argued the landmark Supreme Court case Citizens United. That's the one that used the First Amendment to get rid of limits on certain types of political donations.

Trey introduces himself, with a subtle, southern accent. He weaves in personal details -- I guess to sound relatable. "I'm originally from Shreveport, Louisiana," he says. "I ended up following not A girl but THE girl to Dallas, Texas."

When I look it up later, I'll see that Trey is married to a Erin Nealy Cox, a former U.S. prosecutor appointed by Donald Trump.

Trey begins asking the potential jurors questions. "Is there anyone uncomfortable or feels like they will struggle to award a pipeline company like my client, something in the neighborhood of $300 million if the evidence and law supported it?"

Greenpeace's lawyer Everett Jack takes his turn. He wears a tomato-red striped tie and parts his hair to the side. He's lanky and his face looks a little worn.

He tells the potential jurors that his hometown is Portland, Oregon and that he's married with two daughters and three grandkids. I feel like Everett Jack could be cast in the role of Atticus Finch -- the lawyer in the book To Kill a Mockingbird. In

  married to Faye Resnick, a recurring guest star on the Real Housewives of Beverly Hills. Kris Jenner, the matriarch of the Kardashian family, officiated their wedding.

As Everett begins to question the group of jurors, a pattern emerges. Juror after juror says that hearing about the Standing Rock protests reminds them of what they call "the disruption in our community." One woman puts it plainly. "I think you'll have a tough time [00:08:00] finding people completely unbiased on that, because it effected everyone."

Everett Jack follows up. "How many of you feel the same way?"

All but a handful of people raise their hands.

Everett asks another question: "Is there anybody that heard a rumor there were paid protesters out at the protest site?"

My mind wanders back to those internal documents that had been leaked to me years back, by someone who worked with Energy Transfer's private security contractor, TigerSwan. Back when I’d been interested in what kind of spying TigerSwan was doing for the oil company.

But going through the documents, I realized that they were doing more than just surveillance. The files referenced a social media campaign carried out by a guy named Rob Rice. Here's Rob:

*Rob Rice:** There is a new trend among anti-pipeline protestors online. It's PayPal. Last year, standing Rock, we saw more than $20 million raised by protestors who set up thousands of GoFundMe accounts.

TigerSwan was paying Rob Rice to develop Facebook pages aimed at local community members like the ones in the jury pool now. Rob posted videos where he posed as a news anchor reporting on the protesters.  he said that they were paid, outside agitators. He also said that they were working to hide how they raised money. Ironically, Rob failed to share in these videos that he 

*Rob Rice:** Now paid protestors are switching their tactics. They're beginning to use PayPal as their main method of raising money. Why? Because you can't tell how much they've raised or what they're using it for.

The paid protester will come up again and again as the boogeyman of this trial. It's an old trope that says that protests do not come from local communities with serious grievances. Instead, they're driven by professional outsiders, and people making money off of disruption. Back in 1914 the Rockefellers and Standard Oil used this claim against a coal miner strike. In recent years, the idea of the "professional protester" has popped up more and more as mass protest movements have grabbed headlines. And it turns out Energy Transfer started pushing that narrative in Morton County nearly a decade ago.

Neither Rob Rice nor TigerSwan responded to my requests for comment. And I've found no evidence that TigerSwan was specifically trying to influence a future jury pool back then. But what I do know is that Energy Transfer continued to aim messaging at the local community.

Before I flew into town I was looking through a web site Energy Transfer had recently launched called Taking Back the Truth. It's dedicated to quote "setting the record straight not only on oil and gas – the lifeblood of our modern society, but [00:13:00] our projects and our company."

The pipeline company had also posted photos on Twitter of North Dakotans holding giant checks the company donated to community groups.

Even more bizarrely: last fall these weird newspapers started appearing at the doors of Morton County residents. Sandwiched in between articles criticizing Kamala Harris or analyzing the dangers of quote-unquote illegal aliens, were stories describing negative things that happened, related to the Standing Rock protests. Those protests were a long time ago -- these weren’t articles a normal newspaper would publish.

According to their court filings, Greenpeace uncovered a murky trail of funds that connects these weird  newspapers to  Energy Transfer's board chair Kelcy Warren.

The newspaper's publisher, Metric Media, didn't respond to our request for comment.

When Greenpeace's lawyer asks about the weird newspapers, one guy pulls out a copy he brought with him. "I thought it was kinda weird that I got that,” he says. “It brought back memories. I agree with it that what happened down there wasn’t good.”

As jury selection continues, another potential juror tells the lawyers that she knows that Energy Transfer donated money -- three million dollars actually -- to build the shiny new library a few blocks from the courtroom.

From what I could tell, Energy Transfer's propaganda efforts haven't slowed down much since the protests. And here in the courtroom, they're paying off.

 Before today, I would have thought naked bias would be enough to make you ineligible for a jury. But Greenpeace's lawyers, are having a hell of a time getting the judge to disqualify people.

It turns out a bunch of people in the jury pool have financial ties to the fossil fuel industry. There's a guy who works maintenance at the local refinery. A woman whose family collects royalties from oil extracted on their land. One person works at Dakota Gasification; another works for Coal Creek Station.

Everett Jack asks the potential jurors to raise their hands if this isn't the right case for them.

One hand-raiser explains: I work in the petroleum industry.

Juror 14 says he would be uncomfortable ruling against his industry. And he would be less likely to believe Greenpeace's witnesses than Energy Transfer's. He's even got a second layer of bias: He has a family member in law enforcement, who policed the protests.

Energy Transfer's attorney Trey Cox hits back with a question of his own -- one that he will repeat throughout the day: “If the judge instructs you that the law requires you to only consider the evidence in this courtroom and to treat all the parties fairly, are you able to follow the judge’s instruction?”

He actually wrote a book on how to pick a sympathetic jury,  it's called "Mastering Voir Dire" -- that's a lawyer word for jury selection. Trey and his coauthors note that people are often unaware of their biases. His book says, "This may lead to the juror being dishonest with herself as well as the court. A notable and common example occurs when a potential juror says [00:16:00] they can be 'fair and impartial to both sides' after revealing a predisposed belief or opinion that renders them incapable of impartiality."

Trey's own book says questions like the one he's asking today hide biases.

Judge Gion rules that juror 14 will remain in the jury pool.

Versions of this happen over and over. A woman whose father works in oil and gas says she got lost driving once around the time of the protests and found herself in an area where pipeline opponents were gathered. People banged their hands on her car. Gion rules that she remains in the pool.

Another man says he heard negative stories about the Standing Rock movement from a friend who serves in the National Guard and was called to respond to the protests.

When Greenpeace's Everett Jack asks if he'd be able to disregard what his friend told him, he replies, “How can I erase or ignore what was said? He adds, Wouldn't that be impossible?”

Midway through day 2 of this, the moment arrives for the lawyers to make their selections.

They silently pass papers back and forth. Those of us in the gallery observe anxiously.

That guy who said his work for the fossil fuel industry means Greenpeace would have a disadvantage? He's on the jury.

Another juror works at a gasification company.

A third overseas two power facilities. "My job depends on fossil fuels," he'd said during jury selection.

The woman whose family receives royalties for oil on their land? She’s on it, too. And three others have had husbands with ties to the oil and gas industry.

One woman's husband also worked for  a security company hired by the pipeline as well as  for  the contractor that drilled under the river for Energy Transfer.  She said she didn't think he worked at those places during pipeline construction…but still.

By my count a total of 7 out of 11 jurors and alternates have economic ties to the fossil fuel industry. And no one on the jury has identified themselves as Indigenous.

The organization's lawyer Everett Jack makes one last motion to relocate the trial. Judge Gion denies it.

This doesn't seem fair. But maybe I shouldn't be surprised.

Because there's something else I noticed in those TigerSwan private security documents I mentioned earlier. In addition to spreading propaganda about paid protesters, TigerSwan was 

 helping Energy Transfer look into the money behind the Standing Rock movement. They put together spreadsheets listing dozens of crowdfunding pages and how much each raised.

They were identifying which cars  showed up at certain protests. And they were using an infiltrator to figure out what groups protesters belonged to. They didn't seem to mention Greenpeace, though there are several pages missing.

Their emails show that they were clear about what all of this was for: As early as 2017, Tiger Swan was specifically helping Energy Transfer lawyers develop a racketeering case. A RICO.

it was a different law firm that actually 

Energy Transfer's first RICO suit. Gibson Dunn took over the case in 2023. But it turns out they first got involved almost a decade ago

Before the court clears for the day, I rush outside to try to get people to talk to me about what's happening. I wait , at the courtroom doorway.

Trey Cox and Energy Transfer's other lawyers exit. I shoot my shot.

Mr. Cox , can I ask you a quick question? Sure. Thank you. Okay.

Hey. Are you guys able to share a quick comment ?

Neither do people from Greenpeace, at least not with the trial just starting. I'm going to have my work cut out for me.

I finally find someone who is down to talk. Scott Badendoch. He's a lawyer with the Environmental Law Institute, and he's part of a group called the Energy Transfer vs Greenpeace Trial Monitoring Committee. They're a group of lawyers that came together specifically to watch this trial.

 Trial monitors don't monitor trials because they want to, they monitor trials because they feel they need to. And Bismarck in, uh, end of February is definitely not the my first choice.

Scott and the other trial monitors call this a SLAPP suit. SLAPP spelled S L A P P, meaning 

Strategic Lawsuit Against Public Participation

. The point of a SLAPP suit is not necessarily to win, but to drain opponents of resources, and discourage them from speaking out. SLAPPs are meant to set an example.

Transcription

Alleen arrives in North Dakota for jury selection and is shocked watching it play out. The judge won't allow recording in the court, jurors who flat-out say they are biased against activists or are directly involved in the fossil fuel industry are put on the jury. 

S10 Real Free Speech Threat Documents

Tiger Swan Documents

The Real Free Speech Threat