Terrorists Burning Teslas
Attorney General Pam Bondi imitated President Trump this week by engaging in hyperbolic rhetoric. This has been a defining feature of the Administration's communication strategy.
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Justice in Brief
In the Southern District of New York, two European organized crime figures were convicted of accepting money from the Iranian Revolutionary Guard Corps to kill an Iranian journalist critical of Iran.
In the Western District of Kentucky, three people were found guilty of falsely billing Medicaid for opioid treatment services when, in fact, the services were not provided.
In the District for the District of Columbia, four Indians were charged with unlawfully distributing a precursor chemical for the production of Fentanyl with the intent that it be delivered into the United States through Mexico.
Updates…
Another career federal prosecutor resigned and wrote a public letter announcing it. In the letter, he complained about the expectation that Department attorneys represent President Trump rather than the United States. The resigning attorney assisted with the January 6 prosecutions but had survived the initial firings.
President Trump declared that former President Biden’s pre-emptive pardons are null and void. He claimed Biden used an auto pen to sign them.
Ed Martin, DC’s US Attorney, announced his office was beginning an election fraud unit separate and distinct from Main Justice’s Public Integrity Section.
Hyperbolic Prosecutorial Rhetoric and Normal Crimes
Last week, Attorney General Pam Bondi announced prosecutions against three people who, in separate incidents, threw Molotov cocktails at Tesla dealerships in protest of the Trump Administration’s activities. In doing so, she labeled the incident domestic terrorism and issued a warning to others: “Let this be a warning: if you join this wave of domestic terrorism against Tesla properties, the Department of Justice will put you behind bars.” Her word choice raises an important issue for prosecutors. Their rhetoric matters because, unlike politicians, prosecutors must prove their allegations, beyond a reasonable doubt, to a jury. When they use hyperbolic rhetoric— exagerated statements not to be taken literally—they create certain expectations that the admissible evidence might not support.
Attorney General Bondi’s statement resulted from a trio of incidents. The first occurred in the District of Oregon when a man, on two separate occasions, went to a Tesla dealership and damaged the building and vehicles. On his first visit, he threw Molotov cocktails at the building and damaged at least one Tesla. A month later, the man shot a rifle at the dealership, shattering glass and hitting another Tesla. The second occurred in the District of Colorado when a woman left multiple Molotov cocktails at a Tesla dealership. She attempted to light them but failed. She was also found with materials to made additional devices. The third occurred in the District for South Carolina. In this incident, the defendant used beer bottles as devices and threw them at Tesla charging stations. He also wrote profane comments about the Administration’s Ukraine policy. While all of these incidents are certainly criminal and violate federal law, do they rise to the level of domestic terrorism?
Terrorism lacks a generally agreed upon definition. As the saying goes, “One person’s terrorist is another person’s freedom fighter.” When I teach terrorism, I create a modern Boston Tea Party hypothetical to make the point that the American colonists were freedom fighters to Americans but terrorists to the British. Nonetheless, most people agree that terrorism requires the use of violence for a political purpose. Futhermore, Congress has defined domestic terrorism for federal criminal law purposes. 18 USC 2331 requires proof of two elements for something to be domestic terrorism beyond having occurred within US jurisdiction. First, the act must be dangerous to human life such that it violates state or federal law. Second, the act must “appear to be intended” to intimidate or coerce a civillian population, to influence a government’s policy by intimidation or coercion, or to affect the conduct of a government through mass destruction, assassination or kidnapping.
From this, it is evident that throwing Molotov cocktails at Tesla dealerships and charging stations does not consitute domestic terrorism. First, the acts were not dangerous to human life. In Oregon, no one else was present at the time. In Colorado, a cleaning crew was present but the news reporting indicates that they easily extinguished the fire. In South Carolina, one attacker burned himself but it was not severe. Even if the acts could be construed as dangerous to human life, the actions likely fail the second prong. Obviously, this was not mass destruction, kidnapping or assassination. That leaves whether it appeared to be intended to influence either a government policy or a civillian population through intimidation or coercion. Considering that no demands were made and not even the Tesla dealerships seem intimidated by the conduct, the attacks fail to meet the second prong as well. Therefore, the Attorney General’s labeling the attacks as domestic terrorism were not meant as a legal conclusion.
If the Attorney General was not providing a legal conclusion, why label it domestic terrorism? Most likely, she simply adopted the Trump Administration’s typical rhetorical tactic: hyperbole. This means that they exaggerate claims they make in order to draw attention to them and add humor. It also conveys an extreme message to those taking the statement literally. This was evident in the President’s address to the Justice Department as well. When talking about immigrants, the President said, “These are rough people. These are rough, rough killer people and they allowed them in by the millions.” While some violent people certainly entered illegally, there was certainly not millions of them.
This has proven to be a very successful political tactic for the President and his Administration but it does not work well in criminal prosecution because prosecutors are accountable for their words. When prosecutors make allegations, they must prove them in court. When proving them, there must be no reasonable doubt that those allegations are inaccurate. If reasonable doubt exists, then the jury must find the defendant not guilty. Of course, these are allegations made in formal charging documents. Based on the charges filed against all three Tesla defendants, there is no terrorist allegations. Insted, they are charged with attempting to commit arson in a manner that affects interstate commerce and the unlawful possession of an explosive device.
The problem with the Attorney General’s use of terrorism in this context is that a creative defense attorney can make the case that the government has failed to prove this was terrorism. While it might not be relevant to what prosecutors must prove, it could resonate with jurors.
Defense attorneys might make the argument that the government labeled the conduct terrorism and ask the jurors whether the acts charged sound like terrorism to the jurors. Nearly all jurors will think not. The reason for this is the concept of “normal crimes.” First described by sociologist David Sudnow after observing public defenders. He found that they connected the charge to a “typical” way in which the crime was committed. The public at-large does the same thing. When I ask my students to tell me what they picture for a murder case, they usually say someone shooting someone else. This is significant because psychology research says that jurors make decisions based on stories. They begin with a story in their minds. If the evidence does not fit the story, then it could be discarded or discredited. This applies to the Tesla Terrorists because if asked whether people believe the facts establish terrorism, if it does not fit people’s preconceived notions of terrorism, they will question whether the Tesla Terrorists are guilty. Thus, by labeling the activity “domestic terrorism” the Attorney General is making the work of her prosecutors more difficult.
All of this assumes, of course, that the Attorney General is concerned about any of this. Most likely, she is not. Instead, as she has said repeatedly, she is most interested in advancing the President’s agenda. His agenda is much bigger than the outcome of these few cases. By labeling the conduct “domestic terrorism,” the Justice Department joins the war on the President’s opponents.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!