President Trump announced on Sunday that the US Government is designating Antifa a “terrorist organization.” Many left-wing legal commentators immediately took to Twitter to announce such a designation is meaningless as there is no federal statute that criminalizes the activities of a “domestic terrorist organization.”
That is true. There is a statute which defines and criminalizes “foreign terrorist organizations,” but Congress has not seen fit to create a similar statute for “domestic” groups. One of the primary reasons for this is because no such statute is needed.
Existing federal statutes provide plenty of “coverage” for prosecuting domestic groups which involve themselves in terrorist activity within the borders of the United States. The impediment to such prosecutions is generally the overlap between state police powers and federal law enforcement interests. As a general proposition, state laws outlaw the kind of violent activities that typify “domestic terrorist organizations” whether it be Antifa or the KKK. Compelling federal interests often come into play when the activities of such groups target the civil rights and liberties of groups of people because of a particular characteristic such as race or religion. There isn’t a similar compelling federal interest in simply curtailing localized violent activities whether labeled “terrorism” or just “violence crime”.
So, what was the purpose of Pres. Trump’s announcement if labeling Antifa as a “terrorist organization” had no practical impact?
I thought it was meaningful that the declaration came after more than 12 hours of silence from the White House about events around the country from early Saturday evening into Sunday morning. I also found it significant that Pres. Trump’s announcement was followed-up almost immediately by a written statement from Attorney General Barr.
I think that 12+ hour delay involved another evening and night of watching the feckless and impotent response of big city mayors and mostly blue state governors to the breakdown of order in their cities, including the rising level of violence after dark that seemed to target police and show that left-wing agitators had moved in on the protest marches.
After watching the lawlessness go largely unaddressed by local law enforcement – with several big city police department leaders content to have their officers stand by and watch rather than intervene as looting and property destruction took place in plain view – President Trump and AG Barr made a determination that the Department of Justice and its component law enforcement agencies would be a “player” in dealing with the violence. While the announcement and designation may not have added to DOJ’s arsenal of resources, what it did do was signal that DOJ would be entering the fight.
So, what does that mean? In my opinion there are three potential prosecutorial options that play to the strengths of the federal agencies and can be brought to bear on the problem relatively quickly.
The simplest is a charge under 18 U.S.C § 2101, which provides:
(a) Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent—
(1) to incite a riot; or
(2) to organize, promote, encourage, participate in, or carry on a riot; or
(3) to commit any act of violence in furtherance of a riot; or
(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D) of this paragraph—
Shall be fined under this title, or imprisoned not more than five years, or both.
Since the federal government hasn’t been involved in a lot of “riot” prosecutions in recent memory, this isn’t a charge that has been used often. But the language is nearly identical to a crime set forth in Title 21 USC § 843(b) – a federal drug statute – which reads:
“It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter…”
These are colloquially referred to as “phone counts” – pick up a phone to order up a delivery of drugs and you’ve committed a crime whether the drugs arrive or not. They are easy for a jury to understand and easy to prove. If the federal government is able to capture a significant amount of telephone, email, or text trafficking over cell phones, the cases are ready made. These are easy – but what makes them most attractive is they provide a basis for quick guilty pleas which allows one prosecutor to churn through dozens of cases in very little time.
A prosecutor will be able to do that because in most instances he will marry the offer to plead to a phone count with a threat to charge the defendant with one of two other crimes that carry far greater exposure in terms of potential imprisonment.
The more controversial will be efforts to charge violations of 18 U.S.C. § 2339C – “Prohibitions Against Financing of Terrorism”. This is where the designation becomes important in terms of “optics” if not so much in terms of making use of the statute. Making use of the statute in these circumstances will be somewhat unique – but hey, everything about the past few days has been “unique.”
This statute is a bit involved, and it takes a careful “wander” through the text to knit together the provisions that make it useful. I’m excising parts of the text that don’t apply – noted by an “…” – and highlighting the provisions that are potentially operative given events:
(1) In general.—Whoever, in a circumstance described in subsection (b), by any means, directly or indirectly, unlawfully and willfully provides or collects funds with the intention that such funds be used, or with the knowledge that such funds are to be used, in full or in part, in order to carry out—
(A) an act which constitutes an offense within the scope of a treaty specified in subsection (e)(7), as implemented by the United States, or
(B) any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act, shall be punished as prescribed in subsection (d)(1).
(2) Attempts and conspiracies. — Whoever attempts or conspires to commit an offense under paragraph (1) shall be punished as prescribed in subsection (d)(1).
- —There is jurisdiction over the offenses in subsection (a) in the following circumstances-
(1) the offense takes place in the United States and—
(A) a perpetrator was a national of another state or a stateless person;
(G) was directed toward or resulted in the carrying out of a predicate act—
(ii) within the United States, and either the offense or the predicate act was conducted in, or the results thereof affected, interstate or foreign commerce;
(c) Concealment. —Whoever—
(1) (A) is in the United States; or
(B) is outside the United States and is a national of the United States or a legal entity organized under the laws of the United States (including any of its States, districts, commonwealths, territories, or possessions); and
(2) knowingly conceals or disguises the nature, location, source, ownership, or control of any material support or resources, or any funds or proceeds of such funds—
(A) knowing or intending that the support or resources are to be provided, or knowing that the support or resources were provided, in violation of section 2339B of this title; or
(B) knowing or intending that any such funds are to be provided or collected, or knowing that the funds were provided or collected, in violation of subsection (a), shall be punished as prescribed in subsection (d)(2).
(d) Penalties. —
(1) Subsection (a)— Whoever violates subsection (a) shall be fined under this title, imprisoned for not more than 20 years, or both.
(2) Subsection (c)— Whoever violates subsection (c) shall be fined under this title, imprisoned for not more than 10 years, or both.
Let’s unpack this language a bit to see how it might be used.
The “offense conduct” is the providing or collecting of funds with the intention that they be used to carry out acts intended to cause death or serious bodily injury to civilians OR “any other person not taking an active part in the hostilities in a situation of armed conflict…”
In its definitional section, the statute states: “the term “armed conflict” does not include internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature.” “Policing” activities in response to “riots” do not constitute “armed conflict”, and injuries to police or civilians are both “terrorism” within the terms of this statute.
The offense conduct covered by the statute includes providing funding for the carrying out of acts intended to cause death or serious bodily injury to police officers.
But there is also a requirement – for jurisdictional purposes – that the violence be connected to some interest of the federal government that justifies federal intervention into what would otherwise be a situation covered by state police powers.
For this, two well-established jurisdictional bases are provided. The first might sound the most interesting because of the foreign actors it might draw in – i.e., that the offense takes place in the United States and the perpetrator is a foreign national. Hello George Soros – they are talking about you.
But the second jurisdictional basis is “tried and true,” i.e., the offense takes place in the United States and the “predicate act” (the violence) was “conducted in, or the results thereof affected, interstate or foreign commerce.”
All that looting you see taking place – that “affects interstate commerce.”
The case law on what constitutes violent action affecting interstate commerce is well established in a closely related statute – 18 U.S.C. § 1951, referred to as “The Hobbes Act,” which makes it a federal crime to commit robbery, extortion, or other acts of violence that “affect interstate commerce.” The “interstate commerce” requirement is referred to as the “jurisdictional nexus”, and the Supreme Court has ruled that only a “de minimis” impact on such commerce is necessary to satisfy the jurisdictional requirement.
Jurisdiction in Hobbes Act cases is established by merely showing that businesses impacted by the “predicate act” acquired items for sale from suppliers outside the state where they are located, or from outside the country. The theft from the business thereby “affects” interstate commerce by impacting the ability of the business to buy more items.
The concealment provisions of § 2339C could also come into play in tracing the movement of funds through front companies or shell entities in order to disguise its original source.
Raising or distributing funds for violent activity covered by the statute carries a maximum penalty of 20 years in prison. “Concealment” of the source of such funds is punishable by up to 10 years in prison.
The third possible federal charge falls under 18 U.S.C. § 1959, “Violent Crimes In Aid of Racketeering Activity” – VCAR.
The statute reads:
- Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished—
- for murder, by death or life imprisonment, or a fine under this title, or both; and for kidnapping, by imprisonment for any term of years or for life, or a fine under this title, or both;
- for maiming, by imprisonment for not more than thirty years or a fine under this title, or both;
- for assault with a dangerous weapon or assault resulting in serious bodily injury, by imprisonment for not more than twenty years or a fine under this title, or both;
- for threatening to commit a crime of violence, by imprisonment for not more than five years or a fine under this title, or both;
- for attempting or conspiring to commit murder or kidnapping, by imprisonment for not more than ten years or a fine under this title, or both; and
- for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury, by imprisonment for not more than three years or a fine of  under this title, or both.
- As used in this section—
- “racketeering activity” has the meaning set forth in section 1961 of this title; and
(2) “enterprise” includes any partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity, which is engaged in, or the activities of which affect, interstate or foreign commerce.
This is not “RICO” – and that is a significant distinction. RICO is a statute aimed at criminal “organizations” and the leadership thereof. RICO allows for the prosecution of organizational leaders for the crimes committed by underlings. Proving “RICO” is not a lot of fun.
The benefit of charging VCAR rather than RICO is for a VCAR count the prosecution needs to only prove “racketeering activity” – not the existence of a “Racketeering Organization” as defined in the RICO statute.
The violation of the VCAR statute is established by proof that a group of individuals are “associated in fact” – meaning they are acting in concert even if they lack a formal organization structure – are engaged in “racketeering activity”, and someone commits a violent act in exchange for payment or a promise to pay anything of pecuniary value.
“Racketeering Activity” has an easily understood definition because 18 U.S.C. § 1961 sets forth a specific list of the crimes that fall under the label. But using VCAR might be a bit tricky here because the prosecution would need to show the existence of one the crimes listed by the persons “associated in fact”, and there are only a couple that would likely work. Proving the existence of those “racketeering activity” crimes will require some significant investigative work – but it is the kind of work that feds excel at.
The first potential racketeering crime could be money laundering under 18 U.S.C. § 1956 or 1957. I’m not going to get deep in the weeds on how to prove money laundering, but generally speaking it involves the movement of funds through financial institutions or business transactions for the purpose of promoting or concealing unlawful activity. Section 1957 is the simpler provision to prove, but it requires that the transactions be in amounts greater than $10,000.
The difficulty in using either money laundering statute as the “racketeering activity” is that the funds being “laundered” must be derived from certain “specified unlawful activity” (SUA) as defined in the money laundering statutes. If the funds come from a “non-SUA” crimes, the statutes don’t apply.
The second possible federal crime that might be used to establish “racketeering activity” for VCAR is 18 U.S.C § 2339b – Acts of Terrorism Transcending National Boundaries.
The complication of using this statute is clear from its title – the terrorism involved must include acts both inside and outside the United States. There would be issues of proof involving connecting the events in the cities across the United States to activities outside the United States that promoted or supported the terrorism acts happening in US cities. The statute reads:
(a) Prohibited Acts. —
(1) Offenses. —Whoever, involving conduct transcending national boundaries and in a circumstance described in subsection (b)—
(A) kills, kidnaps, maims, commits an assault resulting in serious bodily injury, or assaults with a dangerous weapon any person within the United States; or
(B) creates a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States;
In violation of the laws of any State, or the United States, shall be punished as prescribed in subsection (c).
- Treatment of threats, attempts and conspiracies. —
Whoever threatens to commit an offense under paragraph (1), or attempts or conspires to do so, shall be punished under subsection (c).
(b) Jurisdictional Bases. —
(1) Circumstances. —The circumstances referred to in subsection (a) are—
(A) the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
(B) the offense obstructs, delays, or affects interstate or foreign commerce, or would have so obstructed, delayed, or affected interstate or foreign commerce if the offense had been consummated;
(c) Penalties. —
(1) Penalties. —Whoever violates this section shall be punished—
(A) for a killing, or if death results to any person from any other conduct prohibited by this section, by death, or by imprisonment for any term of years or for life;
(B) for kidnapping, by imprisonment for any term of years or for life;
(C) for maiming, by imprisonment for not more than 35 years;
(D) for assault with a dangerous weapon or assault resulting in serious bodily injury, by imprisonment for not more than 30 years;
(E) for destroying or damaging any structure, conveyance, or other real or personal property, by imprisonment for not more than 25 years;
Antifa is an international group. I’m confident the federal government has mapped out a network of Antifa associations and activities both in the US and abroad long before he tragic death of George Floyd. Antifa doesn’t care about George Floyd. Antifa is opportunistic – it looks for situations it can exploit for its own purposes. It exists to turn communities in on themselves in an effort to promote civil unrest, and undermine local, state, and federal governments.
They are joined in these political efforts now by the Democrat party and left-wing media who both “welcome” civil unrest if it complicates the re-election prospects of Donald Trump. But what they need is the “civil unrest” – and what they need to avoid is groups aligned with Democrat party interests to have the finger of blame pointed at them. So, you see baseless and fact-free allegations that “white nationalists” are a large player among the instigators of violence.
Pres. Trump and AG Barr simply let the country know that the US Government won’t allow that fiction to play out. The perpetrators of unrest and advocates of anarchy can and will be identified and prosecuted by the federal government if blue state and big city elected officials are content to let the violence play out for their own political purposes.
Shipwreckedcrew has 22 years as federal prosecutor; six years in private practice. Follow on Twitter @shipwreckedcrew