We have been discussed the arrests associated with two attacks on New York police officers using Molotov cocktails. However, two radical young lawyers may have handed the Trump Administration the perfect case to frame as domestic terrorism in the wake of the controversy over President Donald Trump declaring that he would designate Antifa a terrorist organization. I criticized such a designation as legally unfounded and constitutionally dangerous. However, as we discussed yesterday, Colinford Mattis, 32, and Urooj Rahman, 31, may have supplied an alternative avenue in using ample federal laws to prosecute attacks as domestic terrorism without the need of any formal designation. The two defendants are expected to be released on bail today.
While many of us noted that a designation of a terrorist organization is generally a process handled by the State Department for “foreign terrorist organizations,” commentary often ignored that such a designation is not needed to treat defendants as domestic terrorists (as opposed to trying to declare the amorphous Antifa movement as a terrorist organization).
The case could be framed perfectly as a test case of the Administration treating defendants as domestic terrorists under the definition in subsection 5 of 18 U.S.C. 2331:
The term “domestic terrorism” means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended—(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.
Indeed, these attorneys may be accused of a terrorist trifecta under the governing law. They clearly acted in a way “dangerous to human life … [in] violation of the criminal law;” “appear to be intended” to intimidate or coerce or to influence policy or affect conduct of mass destruction.” If the Justice Department is looking for a way to reframe cases as domestic terrorism this would seem the case that they are looking for.
18 U.S.C. § 2332A also prohibits material support for acts of terrorism and the allegation that the two attorneys were attempting to hand out Molotov cocktails could be viewed as both as a case of direct terroristic acts as well as material support. The provision includes 57 different federal criminal statutes that the code calls “federal crimes of terrorism.”
Likewise, the Code of Federal Regulations at 28 C.F.R. §0.85 defines “terrorism” as including “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”
The FBI has a long-standing policy on handling such crimes as domestic terrorism and a policy to open parallel terrorism investigations in such cases. It guidelines include the following instructions that
The FBI defines terrorism as an “unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any element thereof, in furtherance of political or social objectives.” The mission of the Domestic Terrorism Program (DTP) is to detect, deter, prevent, and respond to Domestic Terrorist Organizations (DTO) or individuals who threaten or conduct domestic terrorist activities within the United States. (See the forthcoming Counterterrorism Policy Implementation Guide.) (U) While HC investigations focus on crimes against a person or property and are motivated, in whole or in part, by the individual’s prejudice against a race, religion, ethnicity, or national origin, DT investigations focus on crimes that are committed for political or social reasons by organized extremist groups. An example of a political agenda is an anarchist group carrying out activities to overthrow the government. Incidents related to a social agenda include criminal activities carried out by extremist groups in the animal rights or environmental movements.
(U//FOLIO) When an HC occurs, and in an effort to bring consistency to classifying investigations that may be addressed under the CR and DT programs in which the subject has a nexus to any type of white supremacy extremist group, the investigation must have a dual caption…
The Justice Department has previously declared defendants to be domestic terrorists, including members of white supremacist groups. There was no objection to that effort in the media or some commentators. Indeed, many encouraged the treating of such groups and cases as domestic terrorism. Many wanted the Charlottesville case treated as terrorism, as Attorney General Jeff Sessions referenced it in the same terms. However, it was ultimately framed as a hate crime not terrorism in the prosecution and plea agreement of James Fields. Likewise, the attack of Robert Bowers at the Pittsburgh Tree of Life synagogue was prosecuted largely under hate crime laws. However, cases like the El Paso shooting were immediately framed as domestic terrorism investigations.
The case of two attorneys will likely appeal to the Justice Department as a demonstrative case for domestic terrorism. The defendants are less than appealing as lawyers who allegedly became law breakers. They had lives that many would relish. Mattis graduated from New York University School of Law in 2016 and received his bachelor’s degree from Princeton University. He was also previously employed as an associate at Holland & Knight. Rahman was just admitted to the New York bar in June 2019 after graduating from Fordham University School of Law. Rather than use their training to help others legally, they are accused of trying to distribute explosive or inflammable devices to attack police. In other words, from the perspective of the Administration, they walked right out of central casting for a domestic terrorism case highlighting such crimes as an attack on the very notion of the rule of law.
As a criminal defense attorney, this would be a case that begged for a plea deal, but it is not clear that the prosecutors would be eager to bring the case to such an expedited closure. That is the particular irony here. These two young attorneys may have supplied the very case that the Administration was seeking at the very time it needed it was needed most.