This week, we’re featuring two segments. First up, Moira Meltzer-Cohen, an lawyer with the National Lawyers Guild, speaks about the recent declarations of war by the Trump administration on anteefah, what has changed legally, what they might be telegraphing and smart ways to move forward in this tense atmosphere. Check out our recent chat with Mo about Knowing your Rights and Risks with the police, linked in our show notes, or learn more about their work at NLG.ORG
- Transcript
- PDF (Unimposed) – pending
- Zine (Imposed PDF) – pending
Then, A speaks briefly about supporting mutual aid efforts in Gaza. For more information, check out the recommended article on ItsGoingDown.org and some links in our show notes
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Featured Track:
- Sleep Now In The Fire (instrumental) by Rage Against The Machine from The Battle of Los Angeles
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Transcription
TFSR: Could you please introduce yourself to the audience with any name, pronouns, location, or other context that would help us understand who you are?
Mo: Good morning. I’m Moira Meltzer-Cohen; everybody calls me Mo. My pronouns are they or Mo. I’m an abolitionist, an educator, and an attorney in New York. Primarily, I represent people who are arrested in the course of justice struggles and do advocacy for incarcerated people and movements.
TFSR: We’re here to talk about the recent White House statements following the re-election of Trump, but more recently, the assassination of Charles Kirk, and that ‘Antifa’ is a domestic terrorist organisation. Can you talk about what legally changed with the executive order of September 22 of this year, National Presidential Security Memo No. 7 titled Countering Domestic Terrorism and Organised Political Violence. It came out on September 25. What changed with those?
Mo: Before I answer that question, the first thing I want to say is that nothing that I say on this program is legal advice. This is information. If you want legal advice, I vigorously encourage you to have a privileged conversation with a human attorney who is admitted to practice in your jurisdiction.
As to your overall question, what changed, legally, is essentially nothing. I think the top-level takeaway here is that these executive orders are frightening. They are a frightening contribution to an already dangerous political discourse, and they may very well end up being quite disruptive to left movements, including I think, primarily, centrist liberal movements. But nothing that was legal last week is illegal this week, certainly not because of those statements. The state cannot prosecute you for things that were legal when you did them.
I can’t see the future, but as of right now, the law and the Constitution have not changed. So if this administration wants to in any meaningful, legal way designate anyone, any group as domestic terrorists, they can change the law (which is not going to be quick or easy) or they can dispense with the law, but under the current legal regime, there is no mechanism that would make it illegal to be ‘Antifa’, whatever that means, or to hold anti-fascist values, or to assemble or to petition the government. To be clear, not that doing any of those things or being any of those things is necessarily effective at creating social change right now, but my point really is they’re not illegal.
TFSR: Just to throw this back your way. When you were responding to that, it made me think of a veteran who lost a bunch of his property during Hurricane Helene, which hit this region about a year ago. He went pretty viral, calling out and shouting down a state politician who had a public meeting here in the area. Just saying ‘there’s been a total lack of support after the storm, and here are all the needs, and you’re just a lying politician’ this kind of thing. The same man, right after the executive order that Trump made about burning US flags, went out and burned one across from the White House, and then he got arrested for it. I thought that there was a Supreme Court decision back in the 80s that said it’s not actually illegal to burn a flag. So does that make his executive orders now law?
Mo: No, there is a Supreme Court decision. It’s called Texas v. Johnson, and it is still law. And in fact, after Texas v. Johnson, Congress actually tried to make a federal statute criminalizing burning the American flag, and it was found unconstitutional. It is astonishing and illuminating that that man was arrested for burning an American flag, which is absolutely constitutionally protected conduct. I will say I’m not sure what he was actually charged with. If he were charged with creating a fire hazard, I suppose that, apart from the fact that it’s clearly First Amendment retaliation, you could be criminally charged with creating a fire hazard in a public place, or something like that. But flag burning remains protected regardless of what the President or Congress says about it. It would take either an amendment to the Constitution or a very serious change in Supreme Court jurisprudence to make flag burning illegal.
TFSR: Okay, so this is a distinction I’d love for us to get back to in a moment, between legality versus the box that powers decide to put a thing into. I’ve definitely been detained, not for being an annoyance to the cops, but within my legal rights. But they’ll say, “Your shoes are untied on a Tuesday,” whatever, wasting my time.
Mo: Let’s talk about that. Because I do want to talk with more specificity about these specific executive orders and statements, and also about what legal mechanisms do exist that are and can be and have long been used to surveil and disrupt and target the left. But actually, before we do that, why don’t we talk about some of the categories that are in play here, and be really clear about definitions, or at least understand that there are differences between these categories.
Because there is a difference between the law and political discourse, and there is a difference, importantly, between law and power. There is certainly at least some daylight between the legal constraints on state power and the state’s power to ignore those constraints. What will be significant to this discussion is that there is a significant difference between ‘Antifa’, which is a set of practices or beliefs that are not necessarily even all that well-defined, and what this administration refers to when it uses or deploys the word ‘Antifa’. There is yet more difference between the boogeyman that is being invoked by that word and the individuals and organizations that the administration actually intends to target.
There’s a difference between political targeting, surveillance, disruption, and prosecution. Those things are all different. There’s a difference between prosecution and conviction. And there is an important difference between someone’s political beliefs and associations, which are and remain protected by the First Amendment, and politically motivated conduct that is illegal. So, executive orders and these kinds of statements on national security are policy statements. They don’t, in and of themselves, make things happen. They don’t, in and of themselves, change the law. An executive order that is inconsistent with the Constitution or existing law ought to be unenforceable.
TFSR: Okay. But recognizing that distinction, cops are going to cop, investigators are going to investigate, and those processes are disruptive for people whose lives they’re affecting. They can affect your job prospects. They can affect your housing stability. They can affect whether or not some unhinged person decides to attack you because they’ve heard some conspiracy theory about you. But so that distinction of ‘you might get exonerated by a court after you’ve been held in pre-trial for a year,’ I guess that is an important distinction. Because it means you’re not spending an extra 30 years or 20 years or whatever behind bars with the terrorism enhancement.
Mo: That is also cold comfort. I’m really not trying to be dismissive. I think it’s important to recognize what these distinctions are. And primarily because I want people to understand what exactly we need to be prepared for, and what we need to be worried about, and what tools we have, and what tools are effective at resisting what’s coming down the pike. In order to do that, we need to know what’s coming down the pike. We need to know who actually has power in this situation. The fact that an executive order doesn’t change the law does not mean an executive order will not result in a lot more state repression, or that it won’t disrupt movements or even ruin lives. It doesn’t mean that Trump is not going to accomplish the thing that I think he’s actually trying to accomplish here in the immediate short term, which is broadcasting to his base that non-state action against people identified as or perceived to be part of the despised group is desirable by this administration, and will be condoned by this administration. I think that is important to recognize.
Saying that it doesn’t change the law does not mean it isn’t dangerous. I just want to be very precise about the ways in which it is likely to be dangerous and some of the ways that it might not be. And again, I’m not trying to be dismissive, but state repression exists all the time. State repression against leftists and anarchists in particular has been ongoing the whole time. This is not a Trump thing, and, in fact, I think it’s important to note that the executive who’s probably most responsible for having laid this groundwork is Biden, who set forth a policy strategy that focused on funding the federal targeting of what at that point he was calling “political extremists,” which was a label that was being applied to groups on the left as well as Neo Nazis and alt-right groups.
So this administration has already been engaged, and not just this administration. We have centuries at this point of targeted disruption of left movements. The way that it’s currently being rationalized is a little bit different. The way that it’s being broadcast and normalized is a little bit different. But I will say, I don’t think this is actually anything all that new or different, and the difference in how dangerous it is is one of scale, maybe, it’s a difference in scope rather than nature.
TFSR: I think that’s an important distinction. Sometimes people in the centre and even sometimes people on the left will look at in particular things that the Trump administrations do because they are obfuscatory, they’re confusing, and they’re bombastic. There’s a part of us that will say, “No, but that’s not what’s actually happening. That’s not what actually was the motivation for that person,” or, “That person voted Republican in the last election,” whatever. I think that that distinction that you’re making of this may be an approach to motivate the base, it may prove not to be legally standing, but that doesn’t mean that it doesn’t have an impact on people. What we should be looking for out of this is a projection of not only a call to action, or red meat for the base or whatever, but also a clear proposition that’s meant to chill us and chill civil society, that these are the intentions moving forward. This is the narrative, and this is the story that they’re going to be going with.
Mo: Absolutely. And I think it is important to point out right now where we’re seeing a lot of people pointing out the hypocrisy and the fact that these rationales are really untethered from factual reality. I suppose that’s true and important to note, but pointing out the hypocrisy is not going to be particularly useful. It’s part of the point, manipulating the facts, making narrative claims that are totally unsupportable, and muddying the waters in this really fundamental way is part of the project.
TFSR: There was a German jurist, I guess, who became the highest jurist during the Nazi regime in Germany, but continued writing theory; he was writing it before as a member of the conservative revolution, as they called it, and then afterwards, he survived the war and continued living in Germany, writing. It is Carl Schmitt, who talks a lot about the limits of liberal approaches towards legality and liberal governance with a belief that it makes sense to push it to its limits and beyond, break it and recognize that governance is about the imposition of power and the sheltering of those who are under the control or in the protected community of the state with a consideration of war through the state’s power against internal enemies as well as external enemies. And this is the devil’s bargain that we make. It’s like Hobbes on steroids.
It feels like a lot of the stuff that the Heritage Foundation and Project 2025 have been pushing was that they have this… I know that there are some theocrats in that movement. There’s the unitary executive theory that a lot of them have been pushing. The Trump administration will play with this identity of the King Trump, or whatever, the Don as it were, making these executive decisions and being unbeholden to anything else. They’ve actually been saying to courts, “You can’t stop us from deporting these people to unsafe third countries, whatever, stop us.” I wonder if you have any comments on this, if I’m coming out of left field or what?
Mo: Well, look, I’ll say this for Carl Schmitt, as opposed to the Heritage Foundation. He was at least intellectually honest. I think that we are in this moment where they’re trying to normalize what Schmitt would have called a state of exception, where there;s unbridled executive power and the suspension of any constraints on state power. And it’s funny, because I’ve been in conversations over the last months where I’m talking with a bunch of my friends, none of whom are particularly enamored of the current legal regime, and we’re talking about how dangerous it is that the administration is dispensing with the rule of law. It’s amusing for a bunch of anarchists to be like, “Oh no, the rule of law is collapsing.” But when I’m talking about the rule of law in this way, I’m really talking about constraints on state power, and those are what’s collapsing. That’s exactly what Schmidt envisioned and argued for, frankly.
And I do think we’re seeing that. One of the things that I’ve noticed in some of these EOs, especially the couple of statements from the last few days, is that he keeps talking about things like love of God and anti-Christian sentiment, which is entirely incompatible with the First Amendment, which provides that no state shall establish a religion. We really are outside the contours of recognized legal norms, constitutional norms. I think a lot of this stuff is functioning and is meant to normalize this kind of discourse, and to inject it not only into the exercise of government power, but to normalize it in terms of what people understand to be legitimate legal discourse.
TFSR: Shifting a bit. Let’s get into some of the implications of this. So if it hasn’t changed the law, but we recognize that practices and culture are being shifted. I’ve heard of a bunch of people getting fired and getting doxxing attention. There’s a website now, I think, called “Who Killed Charlie Kirk” [rebranded “Charlie Kirk Data Foundation” -ed], something like that. Maybe an app. It’s the post-Charlie Kirk assassination version of Canary Mission. Does this mean that police are coming after people for sharing memes? Is that happening? Is that what’s happening in these cases?
Mo: Police have always been coming after people for sharing memes. I would say I get calls at least every month from people who have been visited by federal agents because they said something on the internet that was upsetting to somebody else, and then they reported it. And the FBI was just following up on a tip. But that said, this doesn’t vitiate the First Amendment. Let me say that in human language.
TFSR: Thank you [laughs].
Mo: This does not undermine the First Amendment. The First Amendment still exists, and all of the legal framework around having the right to say things, as long as those things are not true threats, still exists. So it is not unusual for people to be targeted or monitored or visited by law enforcement, but typically, that stuff doesn’t actually really go anywhere. I am concerned about people being subject to doxxing and having negative social consequences and fallout from this kind of stuff. And it certainly can be life-ruining. I don’t mean to trivialize the effects of this social retaliation, but it is not the same thing as a criminal prosecution or a criminal conviction. It’s a different set of mechanisms.
Now, one thing that I do think is interesting is that these EOs and the statement that came out on the 22nd and yesterday particularly identify certain modes of that kind of social conduct that you’re talking about like doxxing, swatting, which is making a false report of an ongoing violent crime, so that a SWAT team shows up and raids somebody’s home.
TFSR: Which can be deadly.
Mo: Right, this is very dangerous. And interestingly to me, anyway, there are these specific behaviors that are identified and condemned in those statements. And those specific behaviors are largely tools of the right. People on the left are not notably interested in sending law enforcement to someone’s house. So there is a perverse way in which this may end up being protective, I suppose, because I think it would be very difficult for the government to go after the people who are exposing ICE agents, which, again, is not illegal right now. Even if it were to become illegal, it isn’t right now, and it would be very hard for them to go after those folks and not also go after the folks who are running that silly website about people who say something mean about Charlie Kirk.
TFSR: To me, and this is the speculation outside of legal advice, not that we’re giving legal advice, but outside of the legal framework-
Mo: We are definitely not giving legal advice.
TFSR: It points to a thing that already this hypocrisy or this difference between what it’s called when one party does it versus what it’s called when another party does it, like outside of the fact that the government gets to do what it wants to until the government stops itself from doing a thing. It feels like it’s a part of the creation of a differentiated subjectivity. Like, there’s the subject of the state that falls under the values that are being attacked – Christianity, whiteness, heteronormativity, things like patriotism in these certain ways – versus the people that are doing these same things but are corrupt, are dirtied, are outsider internal enemies, are Soros-funded, however we want to name that. This is nothing new. It’s just an amplification of that same.
Mo: Very much. And what is changing a little bit, although all of these threads have been present, is that this administration is rationalizing this particular kind of targeting with respect to, in particular, Palestine Solidarity movements, gender non-conforming people, and what they’re calling ‘Antifa’. So we’ve been seeing Congressional investigations, the allocation of funds to federal law enforcement, purging not just individuals, but whole agencies that the administration feels are insufficiently aligned with its priority, replacing federal law enforcement and ranging from FBI agents on the ground to DOJ with people who will enthusiastically and blindly pursue these priorities, and using a lot of resources to target the no-profit tax status and funding of groups identified as being aligned with any of the disfavored movements.
One of the things that they’re doing is this real spaghetti throwing everything at it, and it’s very overwhelming. It’s overwhelming for movement infrastructure. It’s overwhelming for legal, for people on the ground. And it’s all happening at once, and it’s mutually compounding. It’s mutually reinforcing. It’s demoralizing. And in particular, the stuff that’s happening with immigration is so devastating, and because immigration is so wholly under the control of the executive, that is an area where he’s able to make a policy and make it so and have it be carried out by fiat. And he has made his own private army with ICE. One of the effects in my observation that that has had is that people see that happening and assume that he has that level of control over everything else.
I do want to point out, again, it’s absolutely devastating to see what’s happening in the immigration space, but in fact, he does not have that level of control over the rest of the government and over non-immigration law. I think that’s really important to remember.
TFSR: Yeah, it seems about pushing boundaries and experimenting, there’s a lot of people that have talked – and not to get too far down the road with this – but with the attempt to normalize sending National Guard or sending active military to different states, or federalizing national guards to be present from different states in these places, almost like if it’s constant and overlapping enough, then eventually just military being on the streets, generally rousting houseless folks is going to be a normalized thing.
Mo: Man, I’m in New York, there are military people in all our subways, which got very normalized post 9/11 in certain places. This is not to say that it’s okay, but it isn’t new.
TFSR: To get back to ‘Antifa’, how is the administration identifying ‘Antifa’ and the left, and what are they actually dismantling and attacking? I’ve heard a lot of talk about bail funds, or like LGBTQIA youth advocacy organizations, secularist groups, what’s going on?
Mo: This is where things get really fun. Most of the groups that are actually being targeted are not remotely related to ‘Antifa’. George Soros is not ‘Antifa’. The various legal defense funds are not ‘Antifa’. ‘Antifa’ is the rationale, but not the reality. One of the interesting issues here is that a significant group of people who really need to be very worried are people who work in the nonprofit sector in extremely normal and liberal community advocacy organizations and NGOs. These are people who have nothing whatsoever to do with ‘Antifa’, by any stretch of the imagination, who are being attacked, whose funding is being attacked, who are primarily, I would say, at risk, not because they have engaged in anything approaching unlawful conduct, and frankly, I think the biggest risk for many of those people is the anticipatory compliance of their funders.
We have seen a really similar thing happen with universities, where universities have been targeted by the state, by the federal government, and have been accused, in particular, of anti-semitism. And frankly, I think it would be the work of an afternoon for general counsel at any of these universities to point out that, in fact, there is a legally established difference between anti-semitism and anti-Zionism, that criticism of the nation state of Israel is in fact entirely legally distinct from criticism of or threats against Jewish people. And if any of these universities actually bothered to challenge these allegations, I think that they would win in court on the law. What we’re seeing instead is the universities declining to challenge these allegations, settling out of court, paying large amounts of money to the allegedly aggrieved parties, and capitulating in ways that are unnecessary, unwarranted, not legally justified, irrational and cede more ground, not just more ground than is legally called for, but more ground than is even being asked for in these cases.
And so, this is, to me, one of the great dangers of normalizing these discourses is that these large institutions are engaged in acts of self-preservation that actually undermine civil society when even a small amount of courage would go a very long way to preserving it.
TFSR: I think we also saw this in the early days of the administration with legal firms that had brought challenges to the administration in the past backing down or offering their fealty to the administration. We’re seeing it now also with some of these large media corporations silencing some of their pundits or whatever, or in some cases, it’s clearly quid pro quo because they’ve got a merger that’s being discussed by the FCC at the moment.
Mo: Well, what we’ve seen, though, we have seen a lot of that craven capitulation, but what we’ve also seen is when we fight, we win. Now, I’m not trying to be a pollyanna about this. What I’m trying to say is the demands that are being made by this particular administration are actually so far beyond the pale that, based on our legal regime as it currently is, when we fight, we win. I think it is very worth reminding people that, however imperfect the law is, the current state of the law forbids much of what this administration is doing, and it is actually worth standing up to it.
There are other groups of people, similarly, who are not related to ‘Antifa’, and one of those groups is shit-posters, including boomers who are on Facebook and Twitter making jokes about how the right is so hypocritical, and those people are getting targeted. I would just gently remind everyone that the First Amendment does still exist, and that the solution to repression is not self-censorship but courage. Aslso, as I have said many times, including to you on this program, discretion is the better part of valor, and not everything needs to be said on the internet. So maybe think about it before you post something that you would not like to hear read back to you by a humorless prosecutor.
Then we have these other groups that are engaged in exposing law enforcement, which I referred to a minute ago. I think the groups that are exposing ICE are definitely going to be targeted, have already been targeted for that activity, but it remains to be seen how that can happen, while also protecting Canary Mission.
Then we have groups that are being perceived as or identified as ‘Antifa’, the people who are like doing Food Not Bombs and community gardening and cooperative bookstores and prisoner letter writing, all of which are extremely First Amendment-protected activities, and all of which are not only likely to be highly surveilled, but are already highly surveilled. This is the group of people who, I think, are actually probably most used to this and best prepared for it, and also might be really hard to prosecute effectively, because they’re not doing crimes.
Like the NGOs that we were talking about, the biggest point of exposure for all of these groups is likely to be financial. We can certainly anticipate that the state is highly interested in looking at all of our bank records, to the extent that our bank records exist, with all the money we have. We’re all handing around the same stack of 20 singles to each other. But hey, wire fraud. What I can say is that you know something like a bail fund, and community support funds do need to be very cautious. That has always been the case, and this is a really good time to hire a CPA to go over your books and to make sure that you have kept really meticulous records, to make sure that if you have raised money for something, you have only used it for the thing that you said it was going to be used for.
This is, once again, something that largely is a feature of far-right organizing. I don’t know if you remember, but Steve Bannon was actually prosecuted for wire fraud because he was raising money to build the wall, but not using it for that purpose, which is wire fraud. So if you run a bail fund, presumably you already know that you have to be very careful about how you raise that money and how you monitor, track, and use that money.
So most of the people, I would say, the overwhelming majority of people who are going to be subject to this kind of monitoring, a) have already been subject to it, and b) haven’t actually done anything unlawful. And that doesn’t mean this won’t be disruptive, I’m not naive enough to say that your innocence will protect you, but it’s a good start.
Then we have folks who maybe actually do engage in unlawful conduct or revolutionary action, or people about whom that claim could somewhat credibly be made. That’s actually just a different group. And those things were illegal last week, and they’re illegal now, and they’re not more illegal because they’re politically motivated. However, there are terrorism enhancements and sentencing enhancements and things like that. The fact is, it can’t be more illegal to spray paint “Free Gaza” on the side of a building than it is to spray paint “I love Trump” on the side of a building.
TFSR: Whether or not this pans out in the courts is one thing, but I know that say, for the library case that happened here, where people were arrested because some people were filming in this Palestine-related workshop in a public library, and they were asked to stop filming. And then a scuffle broke out, and a phone got knocked to the ground, and people got apparently dragged outside. I was not there for this, but now people who are in the crowd, who are not the people who were filming, are facing charges of ethnic intimidation. And that’s a very specific case in a different jurisdiction from where you are practicing law. But what’s being charged against them isn’t about assault per se; it’s this enhanced, politically driven statement based on the rhetoric that’s based on the politics.
Mo: Absolutely. I’m glad you pointed that out, because I certainly do not want to suggest that politically motivated prosecutions don’t happen. They absolutely happen. These recent statements don’t change the way in which they happen. There are ways of targeting people for prosecution based on their politics, and those are, again, not new. I think the point that I’m trying to make is that I don’t think this has changed substantively. The fact that the President said ‘Antifa’ is a domestic terrorist organization just doesn’t really change the legal landscape. The targeted surveillance of the left, whether you call it ‘Antifa’, the Green Scare, or the Black Liberation Army, has been a priority for decades of administrations. More and more legislation has been developed to criminalize garden-variety protest conduct. We saw that a lot around Standing Rock and BLM, more and more resources are allocated to testing creative strategies for monitoring and criminalizing political activities. Again, state repression and the tools that are used in the service of state repression are just not new.
The fact that he put out these statements is maybe a good reminder that we should be circumspect and aware of repression and prepared to bear up under it.
TFSR: So is the RICO 61 Atlanta case a model for what we see moving forward at a federal level in relation to these domestic terrorism charges, conspiracy, racketeering, the focus on bail funds and other abolitionist infrastructure or civil liberties organizations? Section H of that September 25 statement refers to the Attorney General pursuing “politically motivated terrorist acts such as organizing doxxing campaigns, swatting, rioting, looting, trespass, assault, destruction of property, threats of violence and civil disorder.” I know, those are all things that they’ve already got charges attached to them. It’s just these are now being framed within the framework of being terrorist acts. But you said these practices of attacking adjacent supportive movement and civil society organs, it’s not, in and of itself, new, but it seems like the framing, especially with the Atlanta case, where the prosecutors brought up at the beginning… they gave a Merriam Webster dictionary definition of anarchism, and then said, “All these people fall under this umbrella because they all have this ideology, therefore they are a conspiracy.” Is that what the administration is trying to do, and is that different from what they’ve already done at a federal level?
Mo: So first of all, I do think that it’s very likely that they will try. I think this is signaling a real interest in that. I don’t think that’s particularly new, but I think that it’s clearly being prioritized. So let’s talk about RICO briefly.
RICO is the Racketeer Influenced and Corrupt Organizations Act, and it was enacted in, I think 1970 to go after the mob, after crime families. It’s been used against so-called gangs in other politically motivated prosecutions for a long time. And so RICO is really used to kind of criminalize whole communities, but it requires that an actual crime has happened. Association or ideology in itself is not sufficient. So it requires an actual crime to have happened, and it also requires “an enterprise,” a coordinated enterprise. And because the First Amendment protects association, a large, diffuse group of people sharing values is not an enterprise. It’s not a straightforward path to say we want to use RICO in a politically motivated way and to actually be able to capture this group under a net. Saying “We want to go after ‘Antifa’” is like saying, “We want to go after people who like cats.” There are people who like cats-
TFSR: I like cats.
Mo: -but they certainly aren’t coordinating together. I suppose that there are actually people who would say, “Yes, I identify strongly with this set of values.” But it’s not a membership organization, and it would, I think, be very difficult to mount a successful prosecution on the basis of what are clearly First Amendment-protected beliefs and associations.
And there’s pretty good law on this point, actually, and it comes from an effort to prosecute a bunch of anti-abortion protesters under RICO. The court said, “You can’t do that. The fact that there’s a large group of people who happen to believe the same things does not mean that they are an enterprise.”
Don’t get me wrong, again, this would be hugely disruptive, but it would be very difficult to sustain an effective prosecution or obtain a conviction if there was one competent investigator, prosecutor, judge, or jury member anywhere along the way. But yes, hugely disruptive if they manage to do it.
I would like to note something about the Stop Cop City RICO that’s important. So first of all, yay, all those charges, those RICOs were dismissed for legal reasons of being utterly bullshits. And I know that there’s some concern that that will be appealed, but I think it is worth noting and celebrating that when we fight, we win. But more to the point in this context, I do want to note that Georgia’s RICO statute is different from the federal RICO statute, and it’s actually even worse than the federal RICO statute, and it still couldn’t be effectively used in this way.
And also, federal RICO has often failed; efforts to use federal RICO in a politically motivated way have also failed. So if you look up the Ohio 7, which was a fairly early effort to bring a politically motivated RICO that did not go great for the government, I think that’s important to note about RICO.
TFSR: You mentioned this FBI designation earlier. It had been for a while. I thought this came up under Obama, but maybe it came up under Biden for the prosecution of January 6. Anti-government extremists, which included militia movements and also anarchists. It’s been shifted to far-left extremist in the verbiage of the DOJ and those they’re pursuing. Anti-law enforcement and anti-conservative attacks have been framed as a concerted effort by far-left extremists in the media, and also, by these institutions as they’re moving forward before they actually make any arrests or whatever, and through their prosecution, sometimes using terms like ‘Antifa’, or ‘TrAntifa’, or whatever motivations they’re giving. I also wonder if you could say a thing specifically about this framing that is being given. I was thinking about this beef be before more recent mass shooting events that have happened, or before the hullabaloo around Charlie Kirk’s assassination and the alleged shooter’s relationships to other people, that there seems to be this concerted effort around clinically framing and politically framing transness as a mental health issue, but also as a political extension of woke gender ideology that’s coming for your children.
It’s interesting because, in order for people, in a lot of cases, in the US, to be able to gain access to medical care that they desire or need, around maybe gender dysphoria or some other experience, they often have to use these clinical terms for what they are experiencing and why they need medication for it. Not faulting people for making that approach, because you need the medicine that you need. But now this is being turned around and reframed as, if people need this stuff and they’re making this argument, therefore they have some mental deficiency or some issue, which is being used in order to challenge people’s right to keep and bear arms under the Second Amendment, or saying that people are because of their transness, being motivated towards this attacks. Not exactly a legal issue, but I don’t know if you have any observations.
Mo: Well, I guess when it comes down to it, just to be very clear, the DSM, it makes very clear that being trans is not a mental illness, that gender dysphoria is distress caused by a discrepancy between the assigned gender and your actual gender, which would exist if any cis person were being treated as a gender that they didn’t identify with. That would be a distress that would arise for any person. I think that there are real problems with the clinicization or medicalization of gender affirming care, but I do want to be very clear that that does not have to and does not formally or officially include pathologizing trans identity. That’s something that’s being imputed and being imposed, but it has no basis in clinical practice. Not that that necessarily matters to the government, but I do think it’s important to point that out.
I think that, given previous efforts to restrict gun ownership on the basis of previously diagnosed mental illness, they have not been super successful. I don’t know that this one will be either. But again, this is an issue of power and less an issue of law or logical, coherent legal philosophy.
TFSR: This term has been coming up a lot with Trump or the administration talking about domestic terrorists; there’s been a lot of pushback from the legal community or from civil libertarians saying, “What the hell are you talking about?” Can you talk about what it means to be called a domestic terrorist? What changes that makes in how the law approaches you, or how you can be convicted?
Mo: Yeah, gladly. At this point, what it means to be called a domestic terrorist is actually nothing. There is no legal procedure for designating a domestic terrorist group, or for designating a domestic group a terrorist organization. And given the current law on the matter, even with this Supreme Court, I think it would be very, very difficult to change the law in the way it would have to be changed in order to make that designation.
There are ways to freeze the assets of a domestic group. There are ways to posit or show a connection between a domestic group and a designated foreign terrorist organization, which is a real thing that has legal effect. There is a way to financially designate a group or an individual as having this relationship to a foreign terrorist organization or an FTO. But there’s no legal mechanism for designating a domestic terrorist group. That’s not a thing. So this is a place where the government could simply dispense with the law, but I do not think this is a place where the government can use the law to create a category of domestic terrorist organizations.
And just to explain FTOs a little bit. There is a category of organizations that are designated by the State Department as “foreign terrorist organizations.” FTOs are designated by the State Department, and they are listed on the State Department website. It’s not a secret who they are. You’re not going to suddenly find out that you gave money to the Greek equivalent of the ACLU, and now it turns out it’s an FTO. There are certainly cases where the government has successfully claimed that a connection between a domestic group and an FTO exists, even in the face of overwhelming evidence to the contrary. If you have a connection to an FTO, you can be prosecuted for what’s called material support for terrorism, and it’s a very serious charge. It’s a very frightening charge, and it does criminalize a lot of things that most people understand to be protected by the First Amendment.
It criminalizes providing things like medical care to certain groups. It criminalizes providing education or legal support to certain groups that are designated foreign terrorist organizations. Frankly, this is the idea that underpins material support for terrorism charges, which is offensive to many people because it feels very much incompatible with constitutional norms under the First Amendment. It’s an important thing to be aware of, but it would be very surprising to me if the government were able to successfully make broad claims connecting ‘Antifa’ to foreign terrorist organizations.
TFSR: When you were saying that, that had me thinking a little bit about the Holy Land 5 case. I was trying to remember that example. To belabor this. Can we talk about the distinction between a domestic terrorist organization, which is a classification that doesn’t exist, versus the charge of committing terrorism? Because people who get terrorism enhancements, at least like Marius Mason, the one example that comes to my mind, who is a member of a cell that was associated with the Earth Liberation Front. That person got over two decades in prison based on being convicted of crimes that existed, and then getting enhancements based on the definition that those were terrorists, amplifying the amount of time.
Mo: The difference between criminalizing conduct or defining conduct as being terroristic and criminalizing a group. The First Amendment protects freedom of belief, association, and expression, and that means that however much we might be targeted for our beliefs, associations, and expression, we cannot be prosecuted criminally for anything besides our conduct, our actions. And so there can be terrorist offenses and enhancements for sentencing on the basis of conduct that you are convicted of. If you engage in certain illegal acts, and a judge determines that those acts were motivated by the desire to commit terrorism, then the penalty for engaging in those acts can be enhanced. But you cannot designate a group, a belief, or an expression as being a crime in itself, unless there is conduct associated with it, because we don’t criminalize people’s identities. I mean, we do criminalize people’s identities…
TFSR: …but we don’t say it out loud.
Mo: …but it would be impermissible to prosecute people for having those identities.
TFSR: As I understand, the terrorism enhancements that the prosecutors are pursuing in the Luigi Mangione case have been dropped. It’s a thing that I heard. At the same time, this is referenced in one of those documents that came out from the White House as being a terroristic act. So what do the courts know?
Mo: Yes.
TFSR: Okay, thank you for making that distinction clearer. All right, so how might those of us on the left or in justice movements, as you stated it, conceive of the state’s view of us? How do we rally support for our identities and positions? What are some good practices, having had this conversation, understanding the terrain on which we’re operating?
Mo: Absolutely, so what I would say about best practices is understand whether you are at risk. Even if you’re somebody who has not traditionally been at risk, even if you’re someone who has lived your whole life believing that the system works, and that this particular administration is an aberration, I would say, look, this administration is preoccupied with the funding streams for very mainstream liberal causes, and the fact that it’s lumping everything under the banner of ‘Antifa’ is probably a big surprise for some of these groups, like Suburban White Moms Against Guns or whatever. But they are very focused on things like wire fraud and money laundering and stripping nonprofits of their tax status, if there’s even a whisper of the possibility that those nonprofits are pursuing goals that are in any way antagonistic to state interests.
So if you are in a group that has a bank account or raises money, the best practices here haven’t changed: keep a very precise track of your funds. If you raise money, use it for the thing you said you were going to use it for. Have an accountant, be very, very careful about your money. And again, the best practices for the rest of us also haven’t changed. This is political discourse that reaffirms what we already know about targeted surveillance, and we have, for a long time, known how to deal with this.
If you are approached by law enforcement, remember that the Fifth Amendment protects your right not to speak to them. You have no obligation to speak to law enforcement. It is a crime to lie to federal agents, and that means that it is safest not to say anything besides, “I’m represented by counsel, please leave your name and number, and my lawyer will call you.” There is truly never a compelling reason to speak to federal agents before consulting with an attorney. The NLG anti-repression hotline can be reached at 212-679-2811. You can call to have a free, privileged conversation about your rights, risks, and responsibilities, and to be connected with appropriate legal resources in your area.
And at the end of the day, we keep ourselves safe by refusing to submit to this fear, refusing to comply in advance, refusing to second-guess whether we actually have rights. And more importantly, we persist by being confident in the fact that no matter what, our communities are going to rally around and care for each other.
TFSR: I think that would be a great place to tie up. Thank you so much for having this conversation and for the insights that you’ve shared and for the work that you do, Mo.
Mo: You’re very welcome. It’s always a pleasure.