Saturday, June 13, 2020

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 
distribute the proceeds of any unlawful activity; or
commit any crime of violence to further any unlawful activity; or
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— 
an act described in paragraph (1) or (3) shall be fined under this title, imprisoned not more than 5 years, or both; or
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. 
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.


  1. Interstate travel for the purpose of committing a crime is pretty cut and dried.

    Illinois man indicted in Minneapolis riots ... A federal grand jury has charged a 28-year-old Galesburg, Ill., man with civil disorder, rioting and arson in connection with the violent protests stemming from the death of George Floyd ... Matthew Lee Rupert was previously charged by federal prosecutors ... McKenzy Ann Degidio Dunn, 19, was charged with conspiracy to commit arson. Her co-conspirators, Samuel Elliott Frey and Bailey Marie Baldus, both also 19, had previously been charged with one count of conspiracy to commit arson ... In the indictment against Rupert, authorities said he posted videos and details about his actions on his Facebook account. In one post he said, “I’m going to Minneapolis tomorrow who coming only goons I’m renting hotel rooms ... In the video, he “can be seen passing out explosive devices” and “encouraging others to throw his explosives at law enforcement officers, actively damaging property, appearing to light a fire in a building and looting businesses in Minneapolis..."

  2. FWIW, 1952 looks directly applicable to me.

    So, FWIW, I think Turley is wrong.

    Larger point #1. Turley reminds me of Andy McCarthy. I am always thinking that these two seem to desperately want to retain some Left/Establishment cred, not realizing that the Left/Establishment could care less about them and will destroy them when it pleases. In other words they seem to be trying to 'play fair' in a game in which the opponents are playing only to win.

    Larger point #2. I have observed here several times that one of the extraordinary aspects of Trump is his uncanny ability to identify fundamental issues that are hurting us that we didn't even know are hurting us. I don't know about you, but I was only vaguely aware of the impact China was having on our lives (pre-Wuhan) when Trump began to talk about the issue. So, too, with many other issues which Trump has made us aware of. So, too, here, where there is lurking a huge Ninth and Tenth Amendment issue which the Red/Blue divide is exposing. Its hard for me to imagine, given recent events, that one of the outcomes of the era of Trump will not be a renewed focus on the boundaries of federal and state powers, especially the so-called 'police powers' reserved to the states under the Tenth Amendment.

    1. Some friendly pushback on your take of Andy McCarthy. I also find myself pulling out my hair at times when reading or listening to him, and I'll bet there's very little daylight between us here. But a couple other points keep me an overall fan of his.

      1) When McCarthy is on his game - which is often - he's awesome. As good as they get among the chattering class. (A low bar, I know.) He's miles above & beyond Turley in every way. Smarter, always more on point, & not at all the middle ground suckup that Turley is. (Turley pulls his punches constantly just to make sure his words never really threaten any powers that be on the left. McCarthy isn't at all so predictable and does in fact go for the throat fairly often - it just doesn't seem like it because of how even-keeled he always is.)

      2) McCarthy reaches a good chunk of the populace he'd never reach if he came across as more of a teamer. I want to throw things across the room sometimes when he gives every stinking benefit of the doubt to certain government employees who I know absolutely don't deserve it, or takes preposterous positions such as that the corrupt g-men who have lost their jobs or been demoted have already suffered a great deal of punishment. (That one REALLY gets me.)

      But as this spygate thing moves along, he's getting more and more on board with every step, and it will be very helpful to the cause to have him there, vouching to the millions of squishy types that this really has been a sprawling, massive operation to overthrow a president or at least destroy his presidency.

      I guess what I'm arguing is that if you're willing to take the good with the bad with McCarthy, the good really is good, and the bad is in the end a very acceptable price to pay by comparison.

      As always, yours and other's mileage may vary.

    2. @ Brad

      I just have diminishing patience for anyone who undermines Trump, as McCarthy still does occasionally. Especially when it smacks of currying favor. But I agree with you that Andy can be, and increasingly is, very good.

      I smiled when I read you saying that with McCarthy you need to take the bad with the good. Same with Trump, I believe.

    3. @ Cassander

      Totally agree, on every point :)

  3. Wickard v Filburn always struck me as the thinnest of reeds. It's chickenfeed (pun intended) to conclude growing crops for livestock is effecting interstate commerce. If that's good law, then (almost) any activity is effecting interstate commerce. Federalism is a pretty low bar--more honored in the breach than the observance.

    Turley's article is an example of using alarmism as an argument, as he certainly doesn't explain why Wickard was wrong, or wrongly decided and should be overturned. Granted, that's not the best way to draw in readers--so alarmism it is.

    During Occupy Wall St., I visited Zuccotti Park in lower Manhattan, which was essentially a homeless encampment with better amenities. I chanced a discussion with a 20-something who approached me for my thoughts (I was wearing a suit, so I was Wall St. in his mind).

    He told me he had just flown back from London where he'd gone for the weekend OWS protests. That his jet travels conflicted with the Green agenda of OWS didn't strike him as hypocrisy, nor did his apparent ample resources for spur-of-the-moment travel to London, for someone who was seemingly a college student, or otherwise not gainfully employed.

    Between anarchists and Utopians, the OWS/Antifa-type protester includes a significate number who have the bubble mentality of isolation from the reality of work--the effort and income required--the sacrifice to provide for one's family, as opposed to demanding others provide it due to entitlement, by right. And these are the loud voices driving an irrational agenda, parroted by legacy media, because Orange Man Bad.

    It'd be funny if it were so pathetic.

    1. As someone wrote, they have crawled up out of their parents’ basements where they have been living rent-free, responsibility-free, to change the world…. That is indeed pathetic.

    2. @Forbes

      There are two hugely important elements in our (historical) system which the Left disdains: work and property rights.

      I could go on and on about these two elements. I'll just say:

      Work is central. Its why we get up in the morning. Income is what we earn when we work. The Left would give it away.

      Property rights guaranty every contract we make. If we have no property rights we can have no assurance any contract we enter into is enforceable. We enter into innumerable contracts every day on the understanding that we will be entitled to the benefit of the various bargains we make. The Left will not enforce property rights.

    3. "Wickard v Filburn always struck me as the thinnest of reeds. It's chickenfeed (pun intended) to conclude growing crops for livestock is effecting interstate commerce."

      I'm no lawyer but it seems to me that Wickard v Filburn was adjudicated on a second-order effect rather than on a primary effect; that is, frank interstate commerce by Filburn. With this logic, where does it all stop: third-order effects, fourth-order effects, etc. This case, in this common-sense, layman's opinion, was a disgrace.

    4. "Wickard v Filburn always struck me as the thinnest of reeds. It's chickenfeed (pun intended) to conclude growing crops for livestock is effecting interstate commerce."

      I'm no lawyer but it seems to me that Wickard v Filburn was adjudicated on a second-order effect rather than on a primary effect; that is, frank interstate commerce by Filburn. With this logic, where does it all stop: third-order effects, fourth-order effects, etc. This case, in this common-sense, layman's opinion, was a disgrace.

    5. I always love seeing property rights talked about in the way it is here. You can't really understand economics or politics well until you've got a good grasp on the centrality of property rights to allowing both fields to function well.

      If you don't believe me, just ask Hayek (haha).

      Their necessity for freedom to prevail is absolute, which of course is why The Left not only won't enforce them, as you say, but fights to erode them at every turn.

  4. LOL:

    1. MikeifFL says: Sorry to intrude, but the pic you reference is back from 2017-08-28. I started to paste the link, but even it has foul language. Google it if you must. The one from

      On a related note, I do want to believe that the feds are now using NSA's Hammer for the purpose for which it was intended. All the kiddies that went over the line are not going to be happy finding out that contact tracing doesn't always mean a biological virus...

  5. Why are the Antifa members not being prosecuted under RICO? The elements are there.

    I believe RICO also applies to the corrupt cabal that ran the DOJ, FBI prior to and for a few years after Trump was sworn in as President. All the elements are there.

  6. "I believe RICO also applies to the corrupt cabal that ran the DOJ, FBI prior to and for a few years after Trump was sworn in as President. All the elements are there."

    What would those elements be?

    1. You can read all about it here from the DOJ Criminal Resource Manual. I am still fighting corruption in the courts of the State of Washington. It's a long story.

      It's interesting to note that Joe Biden played a major role in the passage of the RICO statues. At least he helped accomplish one good thing in his career as a politician, but not nearly good enough to vote for him.

    2. Sorry, I don't need to read the Manual, and I don't want to hear a long story about the State of Washington. I want YOU to outline what the exact elements of the RICO charges are that you would use in the Russia Hoax.

      Re Joe Biden. RICO was passed in 1970, three years before Biden entered the US Senate.

  7. Guess there's not enough going on in the Sea-Tac area to have to travel to my hometown Chicago...