CORRECTED: Barr's DoJ Quietly Acting Against Antifa

Many of you may have noticed a number of news stories recently that involve the Federal government arresting "protestors" who travelled interstate and committed violent acts of various sorts. Professor Jonathan Turley has an article on the subject that's interesting from a number of standpoints: Tacoma Woman Arrested For Arson At Protest After Police Recognize Tattoos.

What Margaret Aislinn Channon, 25, did was travel from Tacoma, WA, to Chicago, IL, to "protest." The particular form her "protest" took while in Chicago--and which drew the attention of the authorities, including federal authorities--was to torch five police cars. She had adopted a rudimentary disguise while engaged in her "protest" but neglected to cover her tattoos:

Those tattoos had been previously described in a missing persons report in TX--like other would be revolutionaries, Channon seems to get around a lot. Turley points out another similar case involving identification via tattoos, which also segues neatly into his legal point:

We recently discussed the “Joker” case in Chicago where Timothy O’Donnell was arrested for arson after his tattoos were identified by police after he burned a police vehicle.  Now, a Tacoma woman, Margaret Aislinn Channon, 25, has been arrested for burning five vehicles in part due to her equally recognizable ink. There is one other similarity.  They are both not only charged with arson, but charged in federal court.  I continue to be uneasy over the broad federal jurisdictional claims underlying charges that traditionally are matters for state and local prosecutors.

The "Joker" was also IDed through tattoo identification.

I have two reasons to take this up.


The first reason involves the charges brought against these two. Turley identifies the charges as "arson." Presumably torching police cars qualifies as arson under IL law, but here the defendants are being charged in federal court. Turley does not specify the federal statute but only notes the expansive claim of federal jurisdiction--which he characterizes as raising the danger of "negat[ing] federalism principles in criminal law":

Here is my problem.  As I mentioned in the Joker case, the federal government is making a jurisdictional claim that would effectively negate federalism principles in criminal law.  In Chicago, the federal prosecutors appear to be arguing that the police car belongs to the city government, which buys vehicles in interstate commerce. That is a pretty breathtaking construction that makes the ruling in Wickard v. Filburn (1942) looks modest in comparison.  In that case, Roscoe Filburn was growing wheat to feed his chickens, but the Supreme Court still defined the activity as interstate commerce because his crops reduced the amount of wheat on the open (and national) market.

...

The concern from a civil liberties standpoint is that the federal government could circumvent state and local laws and mete out its own punishment for intrastate crimes.  Thus, if a state did not support a president’s harsh view of a given activity, federal prosecutors would effectively federalize the crime.  The dual jurisdictional problem has been raised repeatedly by defense lawyers, particularly in civil rights prosecutions are that virtually identical to state charges.  The double jeopardy claims raised in such challenges have generally failed.  This however is a straight up federalization of an arson crime that occurred within a state and only damaged state property.  That would seem a viable issue to be raised by Channon and other like her who are charged in federal court.

IMO, Turley is way beyond alarmism in his argument. He speaks of a "straight up federalization of an arson crime". I take that to mean that Turley is aware of the federal arson crime and realizes that that statutes doesn't apply to these circumstances. However he fails to cite the federal statute under which Channon and O'Donnell are being charged. That's important because charging these two is not nearly so simple as saying, well the police cars were purchased in interstate commerce so destroying them, or burning them, is a federal crime. At least I'm not aware of any statute that specifically criminalizes interstate travel to destroy property purchased in interstate commerce.

The reason I say that Turley is beyond alarmist is because in this day and age the interest of the federal government in addressing the problem of interstate travel to advance terrorist or other criminal activities seems obvious to me. Indeed, it's not at all a new problem. To say, as Turley does, that the crime was purely local, while ignoring the interstate travel angle, seems disingenuous.

I haven't attempted to look up the charges against Channon, beyond looking at news accounts and the DoJ press release. However, I can think of at least one federal statutes that might apply. This example also illustrates the complexity of federal racketeering laws and serves as a warning against supposing that RICO could easily be applied in the Russia Hoax investigation.

So, here is the statute (in relevant part, and with case specific bolding) that the feds may be using against Channon and O'Donnell. If anyone knows better, please weigh in:

18 U.S. Code § 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises

(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to— 

(1) 

distribute the proceeds of any unlawful activity; or

(2) 

commit any crime of violence to further any unlawful activity; or

(3) 

otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform— 

(A) 

an act described in paragraph (1) or (3) shall be fined under this title, imprisoned not more than 5 years, or both; or

(B) 

an act described in paragraph (2) shall be fined under this title, imprisoned for not more than 20 years, or both, and if death results shall be imprisoned for any term of years or for life. 

(b) 

As used in this section (i) “unlawful activity” means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States, or (3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under section 1956 or 1957 of this title and (ii) the term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

I may be wrong. There may be some other federal statute involved. But I'm quite sure that these are the types of laws that DoJ is looking to in taking action against Antifa. This seems to me to be very far from a simple "negation [of] federalism principles in criminal law."

CORRECTION: I now believe the criminal statutes being used in these two cases is the same one being used in NY against the idiot lawyers who engaged in the same criminal acts--various charges arising from 18 U.S. Code CHAPTER 40—IMPORTATION, MANUFACTURE, DISTRIBUTION AND STORAGE OF EXPLOSIVE MATERIALS. For example, 18 U.S. Code § 844(i) sets penalties for

(i) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce ...

The point remains--the federal government, IMO, has a legitimate interest in controlling the interstate movement of explosive materials as well as the persons who would maliciously use such materials. I remain convinced, as well, that DoJ is also looking closely at the use of
§ 1952 in appropriate situations.