Trump's DOJ Still Pretending Everything Has An 'Interstate' Nexus To Throw Federal Charges At Protester

from the last-ditch-attempt-to-make-people-pay-for-disrespecting-cops dept

The Trump Administration's desire to turn protests against police brutality into an antifa conspiracy have failed. But not for a lack of trying. Federal officers have been sent to major cities still experiencing unrest, but arrest data and DOJ press releases show there's very little evidence that coordinated groups of anarchists are behind the violence and property destruction witnessed around the nation. Instead, it appears to be a loose assortment of white dudes who've spent too much time talking themselves up on social media.

Why the government of a free nation would direct its efforts at rooting out anti-fascists is beyond me, but efforts continue to be made. To justify their own existence, federal officers handling protests are turning regular riot crime into federal riot crime. Prosecutors are pursuing federal charges when state charges are perfectly capable of handling arrestees -- all in hopes of vindictively adding years to their sentences.

There are, of course, First Amendment implications to these federal efforts. This has been demonstrated before, with the feds' attempts to toss a bunch of inauguration day protesters in the slam for an extended period of time. These were the first protests prosecuted under Trump, and the prosecutions went nowhere even as federal officers attempted to go everywhere. The government issued broad subpoenas and warrants and accused the people it failed to prosecute of "hiding behind the First Amendment."

This perceived "hiding" behind inalienable rights continues to aggravate Trump's DOJ. The efforts -- which began with the pretty-fucking-fascist act of protesters being spirited away for questioning by unidentified officers driving unmarked vehicles -- continue. As The Intercept reports, feds are leveraging their prosecutorial discretion to inflict maximum pain on people who have a beef with their public servants. All it takes is the use of social media to turn state crimes into federal crimes. The same goes for targeting any recipient of federal funds, which includes nearly every local law enforcement agency.

The head of the Prosecution Project (which is tracking government prosecutions of demonstrators) says the federal government is using the existence of the internet to amp up charges against protesters.

“More than mass arrests, we see over 300 cases of selective prosecution by the feds against demonstrators,” [Michael] Loadenthal said. He added that the government has made “extensive use” of “interstate crimes” to transform state charges into federal ones, thus bringing more protest cases into the Justice Department’s remit.

[...]

Eighty-six of the 300-plus individual federal cases identified by the Prosecution Project included an “interstate” modification. The scope appears near unbounded for what can fall under federal jurisdiction.

With enough imagination, setting fire to an NYPD cruiser is a federal crime. Why? Because, as prosecutors explained to a nonplussed job, the NYPD's use of federal funds turns regular arson into "arson involving interstate commerce." So does merely enforcing laws -- including federal ones. Prosecutors have argued in court that the NYPD's involvement in law enforcement turns regular crimes into federal crimes when they're targeted by rioters.

In another arson indictment, this time against New Yorker Samantha Shader, federal prosecutors stated that since the “activities of the NYPD and the New York City government in enacting and enforcing laws also affect interstate commerce,” the case fell under the federal government’s purview. Shader, accused of throwing a molotov cocktail at an NYPD vehicle, could face up to 20 years in prison.

In Utah, another federal prosecutor claimed there was a federal nexus to another police car fire, pointing to the fact the vehicle had been manufactured in Canada.

If you think it can't get any stupider than that, you haven't met Trump's DOJ.

In perhaps the most striking example, a Black Lives Matter protester in Jacksonville, Florida, was indicted on federal firearms charges when he was detained by police, and a Patron tequila bottle, allegedly converted into a Molotov cocktail, was found in his bag. The indictment states that since Patron products are exclusively produced in Mexico, “the Patron bottle” — described as a firearm — “would have traveled in and affected interstate or foreign commerce.”

It's only a matter of time before "sounds Mexican" becomes the lynchpin for a federal prosecution. This case was dismissed before the DOJ's bad faith argument could be ridiculed by a judge, leaving the agency free to engage in further imaginative extrapolations.

Bill Barr will still be running the DOJ shop at least through the end of this year. Protests are sure to accompany election results and the long-running anti-police brutality protests in several cities aren't suddenly going to stop, no matter who wins the election. The stupidity will continue through the end of the year at least. And it's a stupidity that's going to destroy people's lives to satisfy a vindictive presidential administration that chose to unconditionally support law enforcement even when it's clearly in the wrong.

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Filed Under: 1st amendment, doj, federal charges, internet, interstate, police brutality, protestors


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  • icon
    That One Guy (profile), 4 Nov 2020 @ 11:07am

    Not even trying to hide the vindictive corruption

    'They used a product made in another country, therefore it counts as interstate related and falls under federal charges.'

    As arguments go that one is so insane that any judge that buys it is clearly massively corrupt and needs to be removed from the position or so mentally impaired that they should be removed from the job as well, and as for the lawyer making that argument immediate disbarment seems entirely appropriate for the same reasons.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2020 @ 11:59am

      Re: Not even trying to hide the vindictive corruption

      As arguments go that one is so insane… and as for the lawyer making that argument…

      Mr Justice Sutherland's opinion in Berger v United States (1935) is chiefly remembered for its passage which begins—

      The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . .

      That passage goes on to contain the often-quoted bit, “While he [the United States Attorney] may strike hard blows, he is not at liberty to strike foul ones.”

      It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

      In 1935, those sentiments could be uttered in all seriousness — in an opinion of the highest court in the land.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 4 Nov 2020 @ 12:03pm

        Re: Re: Not even trying to hide the vindictive corruption

        Oh if only that were the case now and forever...

        reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 4 Nov 2020 @ 12:58pm

        In 1935

        Yet in 1931 an IRS special investigation bent the law into a paper-clip sculpture to get Al Capone for tax evasion by magically extending the statute of limitations. This extraordinary adjustment which allowed the court to convict and imprison Capone was affirmed by the Supreme Court of the United States.

        It makes one want to tear off half his face and start flipping a (double-headed) coin.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Nov 2020 @ 3:18pm

          Re: In 1935

          I have an egyptology professor who might dispute that with you. But then, he was hit on the head with a brick, so what can you expect?

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 5 Nov 2020 @ 6:29am

            Re: Re: In 1935

            "But then, he was hit on the head with a brick, so what can you expect?"

            Only that he's provided the exculpation for the court? Judge Wilkerson may have heard the case but it was Pharaoh Roy Bean who swung the gavel on Capone?

            Which leaves Agent Wilson under suspicion of repeatedly bludgeoning a US judge with a brick. Something to bear in mind so hopefully all DoJ personnel are relieved of blunt objects before entering any courtroom, or before being left alone with people of the judiciary.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2020 @ 11:44am

    "Interstate commerce" excuses: This isn't new

    This has been A Thing at least since 1942, where Roscoe Filburn got slapped down by the supreme court for feeding his own chickens wheat he grew himself....

    So yeah. Under existing precedent they may have a valid argument. If the district court judge buys it, then it would likely have to go through a pro-forma appeals court fight and then to the supreme court. Whee!

    Nope, don't like it. But nope, not rich enough to contest it meself.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2020 @ 12:02pm

      Re: "Interstate commerce" excuses: This isn't new

      I hadn't heard of this case -- that's crazy that they successfully argued that because he grew his own wheat and didn't have to buy from others that he was at fault.

      Anyway, I find Roberts to be disingenuous in how he used this precedent in the ACA fight. The inactivity of not buying health care is the same inactivity of not buying wheat. The activity of growing your own wheat to feed to your own chickens is on par with a person working out, eating right, and wearing a bicycle helmet. To compare the activity of the one with the inactivity of the other is to make a hugely false comparison.

      When did it become standard that our judges have no real-life experience and have the mental reasoning capacity of a middle-school truant?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2020 @ 12:27pm

      Re: "Interstate commerce" excuses: This isn't new

      There's a mildly credible reason behind that ruling. Not so much behind the claims discussed.

      reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 4 Nov 2020 @ 11:54am

    'This'll give the right wing mediasphere a talking point that they can use for years, It's not our money, so who cares how much we waste pursuing a case based on a claim that falls apart on even the slightest inspection.'

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2020 @ 11:55am

    If you think it can't get any stupider than that, you haven't met Trump's DOJ.

    If you think we didn't reach peak stupidity re: interstate nexuses long ago, see Wickard v. Filburn (1942):

    "Whether the subject of the regulation in question was 'production', 'consumption', or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us.... But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"

    In other words: non-commercial activity occurring entirely within one state can count as "interstate commerce" if it could potentially affect interstate commerce in the smallest way. I.e., everything's interstate commerce. Later opinions such as Gonzales v. Raich have reaffirmed this.

    If I protest locally, that's one less theoretical interstate protester that needs to be hired. Interstate commerce, QED. The molotov cocktail at least involves an actual interstate object, dumb as it is.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 4 Nov 2020 @ 12:19pm

    Tequilla is a firearm!

    This is even better than ketchup is a vegetable.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2020 @ 12:22pm

    the NYPD's use of federal funds turns regular arson into "arson involving interstate commerce."

    Finally the admission that cash handed to police is commerce.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 4 Nov 2020 @ 12:26pm

    Doesn't anyone study COIN anymore?

    Throwing protesters -- even violent ones -- into federal prison for twenty years only fuels the Rebel Alliance recruitment effort. It also escalates non-violence into violence, and petty violence into full on terrorism.

    The occupying German garrison routinely executed saboteurs for slashing tires and cutting phone lines, and that had the effect of multiplying the numbers of La Résistance, getting them organized and moving up to assassinations and explosive sabotage.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2020 @ 2:53pm

    Don't forget the Amish beard cutting hate crime

    This was one sect of Amish cutting the beards of other Amish and the federal govt got involved and prosecuted the beard cutters under federal hate crime laws because the clippers they used to cut the beards traveled across state lines and, thus, provided the nexus to interstate commerce. This was back in 2013.

    https://www.fbi.gov/news/stories/16-sentenced-in-amish-beard-cutting-case

    At some point, one hopes that someone might admit that the commerce clause has swallowed the Constitution's limited powers.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 6 Nov 2020 @ 7:25am

      Re: Don't forget the Amish beard cutting hate crime

      At some point, one hopes that someone might admit that the commerce clause has swallowed the Constitution's limited powers.

      Lots of people have recognized that, but at this point it would take a constitutional amendment or a Supreme Court willing to go back on its precedents to fix the situation.

      reply to this | link to this | view in chronology ]

  • identicon
    David, 4 Nov 2020 @ 3:46pm

    Don't knock fascism

    The efforts -- which began with the pretty-fucking-fascist act of protesters being spirited away for questioning by unidentified officers driving unmarked vehicles -- continue.

    Secret police is not inherently fascist but was a standard tool of various usually totalitarian regimes in Europe centuries before fascism as a formal ideology subjugating individual rights below regime or "national" interests became a thing. Sort of a hen-and-egg thing.

    And yes, I also find "tragic" is a word that gets stretched beyond recognition these days. Makes it hard to meaningfully apply it where it actually fits.

    reply to this | link to this | view in chronology ]

  • icon
    drewdad (profile), 5 Nov 2020 @ 6:10am

    Basic misunderstanding

    "coordinated groups of anarchists"

    Um.... I think I might see the problem with their theory.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Nov 2020 @ 9:24am

    "Why the government of a free nation would direct its efforts at rooting out anti-fascists is beyond me"

    The most logical explanation would be: because it wants to be the government of a fascist nation.

    reply to this | link to this | view in chronology ]


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