October 2, 2025 • 55 mins
James introduces a rebroadcast of Final Straw Radio in which Mo speaks with Bursts about the implications of recent Executive Orders and Memoranda for free speech and the First Amendment.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
As media. Hey everyone, it's James here. We promised that
we would get you something on the changes or lack
thereof after Donald Trump's series of executive orders targeting certain groups,
and we reached out to a lawyer, Moe, who is
(00:21):
a fantastic lawyer, and we asked her into you them.
They said they had just done an interview with Final
Store Radio, which is an excellent show, and they suggested
that I take listen to that. I took listen to that,
and I think it's a fantastic interview and I don't
think as much as that we can add to it.
So we're going to re air that interview in full.
(00:42):
The one thing I would add to it is that
there have been a number of cases recently where grand
juries have not returned an indictment. That's relatively rare, but
we are seeing that more frequently, and that just enforces
everything that Moe says here, which is that at this
time we still have sep of powers, and at this
time the executive cannot simply make law. One still has
(01:05):
to be prosecuted according to a statute by a district
attorney or a USA attorney. Right they president cannot just
make law in this instance pertaining to the First Amendment
by executive order, that doesn't mean that they will not
be harassment. And as you're here here, those two are
distinct things, and I think MO gives an excellent outline
on how we should think about and conceive this moment
(01:29):
in American history. So, without any more of me taking
your time, this is an excellent interview that bursted with MO.
I hope you enjoy it, and if you would like
to check out Final Store Radio, you can do so
using the link that I will put below this episode.
Speaker 2 (01:45):
Could you please introduce yourself for the audience with any name, pronouns, location,
or other contexts that would help us understand who you are.
Speaker 3 (01:53):
Good morning. I'm more a Meltzer Cohen. Everybody calls me MO.
My pronouns are they are MO. I'm an adultists and
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.
Speaker 2 (02:14):
So we're here to talk about the recent White House
statements following the assassin I mean, I mean following the
reelection of Trump, but more recently the assassination of Charles Kirk,
that Antifa is a domestic terrorist organization.
Speaker 4 (02:30):
Can you talk about what.
Speaker 2 (02:31):
Legally changed with the executive order of September twenty second
of this year or yesterday? Is from when we're recording
this National Presidential Security Memo number seven titled Countering Domestic
Terrorism and Organized Political Violence. Again, it came out on
September twenty fifth. What changed with those Well.
Speaker 3 (02:50):
Before I answer that question, the first thing I want
to say is nothing that I say on this program
is legal advice is in 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.
(03:12):
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
(03:36):
think primarily centrist liberal movements. But nothing that was legal
last week is illegal this week, certainly not because of
those statements, and the state cannot prosecute you for things
that were legal when you did them. So yeah, I
mean I can't see the future, but as of right now,
(03:57):
the law and the constitution have 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,
(04:20):
there is no mechanism that would make it illegal to
be and to whatever that means, or to hold anti
fascist values, or to assemble or to petition the government.
And you know, to be clear, not that doing any
(04:40):
of those things or being any of those things are
necessarily effective at creating social change right now, but my
point really is they're not illegal.
Speaker 2 (04:50):
Just to sort of throw this back your way, So
there was when you were responding to that, it made
me think of there's a veteran who lost a bunch
of his property during the Aleen hurricane that is about
a year ago hit this region. He was recorded, like
he went pretty viral, calling out and shouting down a
(05:11):
state politician who had a like public meeting here in
the area, just saying there's been like total like lack
of support after the storm, and here are all the
needs and you're just allowing politician this sort of thing.
The same man, right after the executive order that Trump
made about burning US flags, went out and burned one
(05:32):
across from the White House and then he got arrested
for it. Like, I thought that there was a Supreme
Court decision back in the eighties that said it's not
actually illegal to burn a flag. So does that make
his executive orders now law?
Speaker 3 (05:45):
No, there is a Supreme Court decision. It's called Texas d. Johnson,
and it is still law. And in fact, after Texas d. Johnson,
Congress actually tried to make a federal statute criminalizing burning
the American flag and it was found unconstitutional. It is
(06:09):
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.
Right If he was charged with, you know, creating a
(06:29):
fire hazard, I suppose that, apart from the fact that
it's clearly First Amendment retaliation, I suppose that you could
be criminally charged with creating a fire hazard in a
public place or something like that, but no flag burning
remains protected regardless of what the President or Congress says
(06:51):
about it. It would take either an amendment to the
Constitution or a very serious change and Supreme Court jurisprudence
to make five burning illegal.
Speaker 2 (07:04):
Okay, Yeah, so this is the distinction I'd love for
us to get back to in a moment between like
legality versus what, you know, the sort of like box
that that powers decide to put a thing into. Like
I know, I've I've definitely been detained not for being
an annoyance to the cops, but within my legal rights.
(07:25):
But they'll say, ah, but your shoes untied on a
Tuesday whatever, and then waste my time.
Speaker 3 (07:33):
Let's talk about that, And 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
(07:54):
we do that, why don't we talk about sort of
some of the categories that are playing in playing here
and be really clear about definitions or at least understand
that there are differences between these categories, right, because there
is a difference between the law and political discourse. And
there is a difference importantly between law and power. And
(08:19):
there's certainly at least some daylight between the legal constraints
on state power and the state's power to ignore those constraints.
And then I think what will be significant to this
discussion is there is a significant difference between antifa, which
(08:40):
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.
And there is yet more difference between the booking man
that is being invoked by that and the individuals and
(09:01):
organizations that the administration actually intends to target. There's a
difference between political targeting, surveillance, disruption, and prosecution, right, those
things are all different, And 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
(09:27):
the First Amendment, and politically motivated conduct that means illegal.
So you know, 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, and an executive order that is
(09:47):
inconsistent with the constitution or the existing law at least
ought to be unenforceable.
Speaker 2 (09:53):
Okay, but yeah, but recognizing that that distinction, you know,
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
(10:15):
person decides to attack you because they've heard some conspiracy
theory about you. But so that distinction of like, well,
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, right, because it means you're not
spending you know, an extra thirty years or twenty years
or whatever behind bars.
Speaker 4 (10:36):
With the terrorism enhancement.
Speaker 3 (10:37):
Well, I mean that is also called comfort. I'm really
not trying to be dismissive. I think it's important to
recognize what these distinctions are and the 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
(11:00):
at resisting what's coming down the pike. And in order
to do that, we need to know what's coming down
the pipe. 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
(11:22):
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 you know is
desirable by this administration will be condoned by this administration.
(11:43):
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 I think
the ways in which it is likely to be dangerous
and some of the ways that it might not might
not be. And again I'm not trying to be dismissive
but state repression exists all the time. State repression against
(12:05):
leftists and anarchism 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
(12:25):
political extremists, which was a label that was being applied
to groups on the left as well as neo Nazis
and all right groups. So this administration has already been engaged,
and not just this administration, right, we have centuries at
this point of targeted disruption of left movements. The way
(12:48):
that it's currently being rationalized is a little bit different,
the way that it's being broadcast normalized is a little
bit different, but it's 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
(13:09):
scale maybe rather than it's a difference in scope rather
than nature.
Speaker 2 (13:15):
I think, yeah, I think that's an important distinction. I
think that like sometimes people in the center and even
sometimes people on the left, will look at in particular
things that Trump administrations do because they are obfuscatory, they're
like confusing, and they're bombastic, and there's a part of
us that that we'll say like, no, but that's that's
(13:36):
not what's actually happening. That's not what actually was the
motivation for that person or like that person voted you know,
Republican in the last election.
Speaker 4 (13:43):
Whatever.
Speaker 2 (13:43):
And so I think that that distinction that you're making
of you know this, this may not this may be
like an approach to motivate the base, it may prove
not to be legally like standing, but that doesn't mean
that it doesn't have an impact on people. Yeah, and
what we should be able to looking for out of
this is a projection of not only like a call
(14:05):
to action or red meat for the base or whatever,
but also like a clear proposition of that's meant to
chill us and chill some 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.
Speaker 3 (14:21):
Right absolutely, And I think it is important to point
out right now we're seeing a lot of people pointing
out the hypocrisy and sort of the fact that these
rationales are really untethered from factual reality. And I suppose
that's true and important to note, but pointing out the
(14:43):
hypocrisy is not going to be particularly useful. I mean,
I think it's part of the point, right. Manipulating the facts,
making narrative claims that are totally unsupportable, and muddying the
waters in this really fundamental way is part of the project.
Speaker 2 (15:02):
There was a German jurist I guess who became the
highest jurist during the Nazi regime in Germany, but continued
writing theory like was writing it before as a member
of the Conservative Revolution that they called it, and then
afterwards he survived the war and continued living in Germany
writing Karl Schmidt, who talks a lot about like the
(15:24):
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 controller or in the protected
(15:46):
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. And it feels like a lot
of the stuff that the Heritage Foundation and Project twenty
twenty five has been pushing was that they have this.
I know that there are some theocrats in that movement.
(16:09):
There's the unitary executive theory that a lot of them
have been pushing, and they'll play with this idea like
the Trump administration will play with this identity of the
King King Trump or whatever the Dawn as it were,
like making these executive decisions and being unbeholden to anything else.
And they've actually been, like you know, saying to courts,
(16:30):
you can't stop us from deporting these peoples who with
unsafe third country whatever, stop us. I wonder if, like
I wonder if you have any comments on this, if
I'm coming out of left field or what.
Speaker 3 (16:42):
Well, look, I'll say it is for Karl Schmidt as
opposed to the Heritage Foundation, he was at least intellectually honest. Yeah,
I think that.
Speaker 5 (16:50):
We are in this moment where they're trying to normalize
what we Schmidt would have called like a state of exception,
where they're sort of unbridled executive power, the sort of
suspension of any constraints on state power.
Speaker 3 (17:03):
Right. And it's funny because I've been in conversations over
the last months where and talking with a bunch of
my friends, none of them 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,
you know, And it's sort of amusing for a bunch
(17:24):
of anarchists to be like, oh, no, the rule of
laws 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. And that's exactly
what Schmidt envisioned and argued for Frankly, and I do
think we're seeing that. I think one of the things
that I've noticed in some of these eos, especially the
(17:44):
couple of statements from the last few days, is he
keeps talking about things like love of God and Christian
anti Christian sentiment, which is I mean, you know, this
is entirely incompatible with the First Amendment, which provides no
state shall establish our religion, right. I mean, we really
are outside the contours of recognized you know, legal norms,
(18:11):
constitutional norms, and 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.
Speaker 2 (18:43):
Kind of shifting a bit like let's get into some
of the implications of this. So if it hasn't changed law,
but we recognize that practices and culture are being shifted.
I've heard of a bunch of people getting fired and
getting docxing attention. There's a website now I think called
like who Killed Charlie Kirk? The People who Killed Charlie
Kirk or something like that, and maybe an app. It's
kind of like the post Charlie Kirk assassination version of
(19:07):
Canary emission. Does this mean that police are coming after
people for sharing memes? Is that happening? Is that what's
happening in these cases?
Speaker 3 (19:16):
I mean 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 is just following up on a tip. But
(19:37):
that said, this doesn't vitiate the First Amendment. Let me
say that in human language, thank you. 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,
(20:01):
that 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 doxing and having
negative social consequences and fallout from this kind of stuff,
(20:24):
and it certainly is you know, can be life ruining. Again,
I don't mean to trivialize the effects of this kind
of retaliation social retaliate, 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
(20:47):
statement that came out on the twenty second and yesterday
particularly identify certain modes of that kind of social conduct
that you're talking about, like doxing swatting rag, which is
making false report of like an ongoing violent crime, so
that a swap team shows up and raids somebody's.
Speaker 2 (21:06):
Home, which can be deadly right, this is very.
Speaker 3 (21:10):
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 sort of protective,
(21:32):
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
(21:53):
who are running that silly website about people who say
something mean about Charlie Kirk.
Speaker 2 (21:59):
Yeah, I guess to me, And this is the speculation
outside of like legal advice or anything. Not that we're
giving legal advice, but outside of like the legal framework.
Speaker 3 (22:07):
Definitely not giving legal advice.
Speaker 2 (22:09):
I mean, it kind of points to a thing that
already this 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. I mean,
it feels like it's a part of the creation of
a differentiated subjectivity. Like there's the subject of the state
(22:32):
that falls under the values that are being attacked Christianity, whiteness, heteronormativity,
these like patriotism in these certain ways versus the people
that are doing these same things but are corrupt, are dirty,
are outside our internal enemies, are Soros funded. However we
(22:55):
want to like yeah that, but yeah, I guess that's
not I mean, that's this is nothing new.
Speaker 4 (23:01):
It's just an amplification of that same right.
Speaker 3 (23:03):
Yeah, very much. And you know 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
nonconforming people and what they're calling anti buzz. So you know,
(23:24):
we're seeing we've been see 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. That and I mean
ranging from FBI agents on the ground to doj with
(23:45):
people who will enthusiastically and blindly pursue these priorities, and
using a lot of resources to target the nonprofit text
status and funding of groups identified as being aligned with
any of the disfavored movements. And one of the things
that they're doing is kind of it's this real spaghetti,
(24:09):
you know, 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 I think it's all being it's mutually compounding, it's
mutually reinforcing, it's demoralizing, and in particular, the stuff that's
(24:30):
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 sort of make a
policy and make it so and have it be carried
out by FIAT, and he has made his own private
(24:50):
army with ICE. And I think one of the effects
that I in just 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. And
I do want to point out again it's absolutely devastating
(25:12):
to see what's happening in the immigration space, but in
fact he does not have that level of control over
the rest of government and over non immigration laws, and
I think that's really important to remember.
Speaker 2 (25:28):
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 like with
the like 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
(25:50):
if it's constant and overlapping enough, then eventually just military
being on the streets, generally rousting houseless folks is going
to be a normal thing.
Speaker 3 (26:02):
Man, I'm in New York. There's military people in all
sub price like that got very normalized post nine to
eleven in certain places, and so you know, again this
is not to say that it's okay, but it isn't new.
Speaker 2 (26:16):
So take it back to antifa. Sure, Antifa, Antifa. How
is the administration identifying Antifa and the left and what
are they actually dismantling and attacking. I'm thinking, like, let's
talk about bilfunds or like lgbt QI, a youth advocacy
organization's secularist groups, like yeah, what's going on?
Speaker 3 (26:41):
Yeah, well this is 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. So one of the
(27:01):
interesting issues here is that a significant group of the
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. And these are people
who have nothing whatsoever to do with Antifa, by any
stretch of the imagination, who are being attacked, whose funding
(27:23):
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
(27:44):
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 universes
cities to point out that in fact, there is a
legally established difference between anti Semitism and anti Zionism, that
(28:11):
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
(28:34):
on the law. And 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,
(28:59):
and seed 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 you know, this
is to me one of the great dangers of normalizing
these discourses is that these large institutions are engaged in
(29:21):
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.
Speaker 2 (29:33):
I think we also sort of 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 refusing to offering their fealty or whatever to the administration.
And we're seeing it now also with some of these
large media corporations silencing some of their pundits or whatever,
(29:54):
or in some cases, I mean it's clearly quid pro
quo because they've got, you know, a merger that's being
discussed by the FCC at the moment.
Speaker 3 (30:04):
Well, what we've seen, though, we have seen a lot
of that sort of 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,
(30:27):
when we fight, we win, and so 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
(30:48):
who are not related to Antifa, and one of those
groups is coasters, like including boomers, who are on Facebook
and Twitter making jokes about how the right it's so
hip critical, and those people are getting targeted, and I
would just gently remind everyone that the First Amendment does
still exist and that the solution to repression is not
(31:09):
self censorship but courage. And also, 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
(31:31):
law enforcement, which I referred to a minute ago, and
I think the groups that are you know, exposing ice
are definitely going to be targeted have already been targeted
for that activity, but it sort of remains to be
seen how that can happen while also protecting Canary mission.
Right then, we have groups that are being perceived as
(31:54):
or identified as Antifa. Who are 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 surveiled, are already highly surveiled.
And this is the group of people who I think
are actually probably most used to this and best prepared
(32:16):
for it, and also might be really hard to prosecute
effectively because they're not doing crimes and you know, 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
(32:40):
the money we have, right Like, we're all handing around
the same staff of twenty singles to each other. But hey,
you know wirefraud. What I can say is that you know,
something like a bail fund, and you know, community support
funds do need to be very cautious. That has already
(33:01):
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. And this
is once again something that largely is a feature of
(33:25):
far right organizing. Right. I don't know if you remember,
but Steve Bannon was actually prosecuted for wire fraud because
he was raising money to do something.
Speaker 4 (33:35):
Build the wall, Build the wall.
Speaker 3 (33:38):
He was raising money to build the wall, but not
using it for that purpose, which is wirefraud. Right. 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 and track and
use that money. So most of the people, I would say,
the overwhelming majority of people who are sort of going
to be subject to this kind of monitoring A have
(33:59):
already been subject to it, and b haven't actually done
anything unlawful. And you know that doesn't mean this won't
be disrupted. It just means, look, I'm not naive enough
to say that your innocence will protect you, but it's
a good start. And 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.
(34:23):
And that's actually just a different a different group, right,
And those things were illegal last week and they're illegal now,
and they're not more illegal because they're politically motivated. Right,
Although you know there are terrorism enhancements and sentencing enhancements
and things like that, the fact is, like, you know,
it can't be more illegal to spray paint Free Gaza
(34:44):
on the side of a building than it is to
spray paint I Love Trump on the side of a building. Right.
Speaker 2 (34:50):
I mean, what whether or not this like pans out
in the courts, right is one thing. But I know
that like, say, for the library case that happened here
where people were arrested because some people were filming in
this like Palestine related workshop in a public library and
they were asked to stop filming and then a scuffle
(35:11):
broke out and a phone got knocked to the ground
and people got apparently dragged outside. Again, I was not
there for this, but like now the people are facing
like people who were in the crowd, who are not
the people who were filming or facing charges of ethnic intimidation.
That's a very specific case in a different jurisdiction from
where you are practicing law. But it's not just about
(35:31):
like 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.
Speaker 3 (35:43):
Right. Absolutely, And 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 reset statements don't
change the way in which they happen, right, And there
are ways of targeting people for prosecution based on their politics,
(36:07):
and those have 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. Yeah, like the fact
that the President said Antifa is a domestic terrorist organization
just doesn't really change the legal landscape. This has been
(36:28):
the targeted surveillance of the left, whether you call it Antifa,
whether it's the Green scare, whether it's the Black Liberation Army.
This 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
(36:50):
creative strategies for monitoring and criminalizing political activities. You know, again,
state repression and the tools that are used in the
service of state repression are just not new. And the
fact that you put out these statements is maybe a
good reminder that we should be circums fact and aware
of repression and prepared to bear up under it.
Speaker 2 (37:22):
So is the RICO sixty one 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, civil liberties organizations.
Section H of that September twenty fifth statement refers to
(37:43):
the Attorney General pursuing quote, politically motivated terrorist acts such
as organizing docs and campaigns, swatting, rioting, looting, trespass, assault,
destruction of property, threats of violence, and civil disorder like
I know, those are all things that you know, they've
already got charges attached to them. It's just these are
now being framed within the framework of being terrorist acts.
(38:07):
But you know, you said, like these practices of attacking
adjacent like 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 ernark like they gave a Merriam Webster
Dictionary definition of anarchism and then said, all these people
(38:29):
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.
Speaker 3 (38:41):
So, first of all, I do think that that'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. RICO, let's talk about RIGO. Briefly, is
the Racketeer, Influenced and Corrupt Organizations Act, and it was
(39:05):
enacted in I think nineteen seventy to go after the mob. Right,
it was to go after crime families, but it's been
used against so called gangs and other politically motivated prosecutions
for a long time, and so RICO has really used
to kind of criminalize whole communities. But it requires that
an actual crime has happened. Right, association or ideology in
(39:30):
itself is not sufficient. So it requires an actual crime
has happened. And it also requires an quote an enterprise,
like a coordinated enterprise. And because the first Amendment for
text association and a large diffuse group of people sharing
values is not an enterprise, you know, I'm not sure.
(39:52):
It's not a straightforward path to say we want to
use rego in a politically motiv motivated way and to
actually be able to have I'm sure this group under
a net. Right. That's like, you know, saying we want
to go after Antifa is like saying we want to
go after people who like cats. Right, there are people
(40:13):
who like cats, but they certainly aren't coordinating together. I
suppose that there are actually people who would say, like, 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 prosecution or to mount a
(40:33):
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
and the court said you can't do that. The fact
that there's a large group of people who happen to
(40:55):
believe the same things does not mean that they are
an enterprise. So look, 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 if they
(41:17):
managed to do it. I would like to note something
about the stop coup City Rico. That's important. So first
of all, yay, those all those charges, those ricos were
dismissed for legal reasons of being utter bolts. And I
know that you know there's some concern that that will
be appealed, but I think it is worth noting and
(41:41):
celebrating that when we fight, we win. But sort of
more to the point in this context, I do want
to note that Georgia's RIGO statute is different from the
federal reco 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.
Right efforts to use federal RICO in a politically motivated
(42:03):
way have also failed. So if you look up like
the Ohio seven, which was a fairly early effort to
bring a politically motivated RICO that did not go great
for the government. So yeah, I think that's important to
note about RICO.
Speaker 2 (42:16):
So you mentioned this like FBI designation earlier, it had
been for a while. I think under I thought this
came up under Obama, but maybe it came up under
Biden for the prosecution of January sixth. But anti government extremists,
which included militia movements and also anarchists, it's been shifted
to far left extremists in the verbiage of the DOJ
(42:39):
and who they're pursuing. Anti law enforcement and anti conservative
attacks have been framed as you know, of considered effort
by far left extremists in the media, and also like
by these institutions as they're you know, moving forward before
they actually make any arrests or whatever, and through their
prossecutution sometimes using terms like you know, antifa or trantifa
(43:03):
or whatever sort of motivations they're giving. I also wonder
if you could say a thing specifically about this sort
of framing that is being given.
Speaker 4 (43:13):
Again, that is like.
Speaker 2 (43:15):
Like I was thinking about this before more recent mass
shooting events that have happened, or before the hullabaloo around
Charlie Kirk's assassination and the shooter the alleged shooters relationships
to other people, that there seems to be this concidered
effort around clinically framing and politically framing transness as a
(43:38):
mental health issue but also as a political extension of
woke gender ideology that's coming for your children. And it's like,
it's it's interesting because like, 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 dysorio or some some other experience,
(44:02):
they often have to use these like clinical terms for
what they are experiencing and why they need medication for it,
and not faulting people for making that approach because you
need the medicine that you need.
Speaker 4 (44:14):
But now this is.
Speaker 2 (44:15):
Being turned around and reframed as therefore, if people need
this stuff and they're making this argument, therefore they have
some sort of mental deficiency or some sort of issue
which is being used in order to challenge people's right
to keep in bear arms under the Second Amendment, or
saying that people are like because of their transnits being
(44:35):
motivated towards this attacks like, I don't know if you
have anything to again, not exactly like, not exactly a
legal issue.
Speaker 4 (44:42):
But I don't know if you have any observations.
Speaker 3 (44:44):
Well, I mean, I guess when it comes down to it.
Just to be very clear, the DSM makes it very
clear that or that being trans is not a mental illness.
That gender dys for you is distress cause by discrepancy
between the assigned gender and your actual gender, which would
(45:08):
exist if any cisperson were being treated as a gender
that they didn't identify with right that would be a
distress that would arise for any person. I think that
there are real problems with the sort of clinicization or
medicalization of gender affirming care. But I do want to
be very clear that that does not have to and
(45:31):
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 given that previous efforts to
(45:54):
restrict gun ownership on the basis of previously diagnosed mental
illness 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.
Speaker 2 (46:13):
So this term has been coming up a lot of
you know, 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 like what it means
to be called domestic terrorists? What changes that makes in
(46:34):
like how the law approaches he or how you can
be convicted?
Speaker 3 (46:36):
Yeah, gladly. So, 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, for
designating a domestic group a terrorist organization, and given the
current law on the matter, even with this Supreme Court,
(46:57):
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
(47:21):
real thing that has legal effect. There is a way
to financially designate a group or an individual, as you know,
having this kind of relationship to foreign terrorist organization or
an FTO. So, but there's no legal mechanism for designating
(47:42):
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. Just to like explain
ftos a little bit, there is a category of organization
(48:07):
that are designated by the State Department as quote, foreign
terrorist organizations ftos are designated by the State Department, and
they are listed on the State Department website. Right, it's
not a secret who they are. You're not going to
suddenly find out that you know, you gave money that
to I don't know the Greek equivalent of the ACLU,
(48:27):
and now it's you know, 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 FDO exists,
even in the face of overwhelming evidence to the contrary.
And if you have a connection to an FTO, you
(48:50):
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.
Speaker 5 (49:05):
Right.
Speaker 3 (49:06):
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. And frankly, this is
the idea that underpins material support for terrorism charges is
offensive to many people because it does feel very much
(49:28):
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 quote Antifa to foreign terrorist organizations.
Speaker 2 (49:47):
I was when you were saying that that had me
thinking a little bit about the Holy Land five case.
I was trying to remember that example. I guess like
to belabor this. Can we talk about the distinction between
domestic terrorist organization, which is a classification that doesn't exist,
versus the charge of committing terrorism because people who get
(50:09):
terrorism enhancements at least like the Maryus Mason one example
that comes to my mind, right, who is a member
of cell that was associated with the Earth Liberation Front
like so that 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,
(50:34):
amplifying the amount of time.
Speaker 3 (50:35):
Right. The difference is 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
(50:58):
our beliefsciations, 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
(51:21):
in certain illegal acts and a judge determines that those
acts were motivated by desire to do terrorism, that the
penalty for engaging in those acts can be enhanced. But
you cannot designate a group of belief or an expression
(51:42):
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, but it's impermissible to prosecute
people for having those identities.
Speaker 2 (52:03):
I guess I have note as I understand the terrorism
enhancements that the prosecutors are pursuing in the Luis gim
Angioni case have been dropped.
Speaker 4 (52:11):
Is a thing that I heard, yes.
Speaker 2 (52:14):
Which I mean 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 yes, what
do the courts know? Okay, thank you for making that
distinction more clear. 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
(52:37):
do we rally support for our identities and positions, what
are some good practices understanding, Like, having had this conversation,
the terrain on which we're operating.
Speaker 3 (52:48):
Absolutely, So I guess what I'd 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 like
an aberration. I would say, Look, this administration is preoccupied
(53:13):
with the funding streams for very mainstream liberal causes, and
the fact that it's sort of lumping everything under the
banner of antifa, you know, is probably a big surprise
for some of these groups, like you know, suburban white
moms against guns or whatever. But they are very focused
on things like wirefraud and money laundering and stripping nonprofits
(53:33):
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 very
precise track of your funds. If you raise money, use
(53:56):
it for that they knew said you were going to
use it for. Have an accountant, you know, 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,
(54:19):
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 light of federal agents,
and that means that it is safest not to say anything. Besides,
I'm represented by counsel. Please leave your name a number,
and my lawyer will call you. There is truly never
(54:40):
a compelling reason to speak to federal agents before consulting
with an attorney. The Energy Anti Repression Hotline can be
reached at two one two six seven nine two eight
one one. 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
(55:03):
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.
Speaker 2 (55:24):
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 shared, and for the work that
you do.
Speaker 3 (55:31):
MO. You're very welcome. It's always a pleasure. It Could
Happen Here is a production of cool Zone Media. For
more podcasts from cool Zone Media, visit our website Coolzonemedia
dot com, or check us out on the iHeartRadio app,
Apple Podcasts, or wherever you listen to podcasts. You can
now find sources for It Could Happen here, listed directly
(55:52):
in episode descriptions. Thanks for listening.
As media. Hey everyone, it's James here. We promised that
we would get you something on the changes or lack
thereof after Donald Trump's series of executive orders targeting certain groups,
and we reached out to a lawyer, Moe, who is
(00:21):
a fantastic lawyer, and we asked her into you them.
They said they had just done an interview with Final
Store Radio, which is an excellent show, and they suggested
that I take listen to that. I took listen to that,
and I think it's a fantastic interview and I don't
think as much as that we can add to it.
So we're going to re air that interview in full.
(00:42):
The one thing I would add to it is that
there have been a number of cases recently where grand
juries have not returned an indictment. That's relatively rare, but
we are seeing that more frequently, and that just enforces
everything that Moe says here, which is that at this
time we still have sep of powers, and at this
time the executive cannot simply make law. One still has
(01:05):
to be prosecuted according to a statute by a district
attorney or a USA attorney. Right they president cannot just
make law in this instance pertaining to the First Amendment
by executive order, that doesn't mean that they will not
be harassment. And as you're here here, those two are
distinct things, and I think MO gives an excellent outline
on how we should think about and conceive this moment
(01:29):
in American history. So, without any more of me taking
your time, this is an excellent interview that bursted with MO.
I hope you enjoy it, and if you would like
to check out Final Store Radio, you can do so
using the link that I will put below this episode.
Speaker 2 (01:45):
Could you please introduce yourself for the audience with any name, pronouns, location,
or other contexts that would help us understand who you are.
Speaker 3 (01:53):
Good morning. I'm more a Meltzer Cohen. Everybody calls me MO.
My pronouns are they are MO. I'm an adultists and
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.
Speaker 2 (02:14):
So we're here to talk about the recent White House
statements following the assassin I mean, I mean following the
reelection of Trump, but more recently the assassination of Charles Kirk,
that Antifa is a domestic terrorist organization.
Speaker 4 (02:30):
Can you talk about what.
Speaker 2 (02:31):
Legally changed with the executive order of September twenty second
of this year or yesterday? Is from when we're recording
this National Presidential Security Memo number seven titled Countering Domestic
Terrorism and Organized Political Violence. Again, it came out on
September twenty fifth. What changed with those Well.
Speaker 3 (02:50):
Before I answer that question, the first thing I want
to say is nothing that I say on this program
is legal advice is in 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.
(03:12):
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
(03:36):
think primarily centrist liberal movements. But nothing that was legal
last week is illegal this week, certainly not because of
those statements, and the state cannot prosecute you for things
that were legal when you did them. So yeah, I
mean I can't see the future, but as of right now,
(03:57):
the law and the constitution have 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,
(04:20):
there is no mechanism that would make it illegal to
be and to whatever that means, or to hold anti
fascist values, or to assemble or to petition the government.
And you know, to be clear, not that doing any
(04:40):
of those things or being any of those things are
necessarily effective at creating social change right now, but my
point really is they're not illegal.
Speaker 2 (04:50):
Just to sort of throw this back your way, So
there was when you were responding to that, it made
me think of there's a veteran who lost a bunch
of his property during the Aleen hurricane that is about
a year ago hit this region. He was recorded, like
he went pretty viral, calling out and shouting down a
(05:11):
state politician who had a like public meeting here in
the area, just saying there's been like total like lack
of support after the storm, and here are all the
needs and you're just allowing politician this sort of thing.
The same man, right after the executive order that Trump
made about burning US flags, went out and burned one
(05:32):
across from the White House and then he got arrested
for it. Like, I thought that there was a Supreme
Court decision back in the eighties that said it's not
actually illegal to burn a flag. So does that make
his executive orders now law?
Speaker 3 (05:45):
No, there is a Supreme Court decision. It's called Texas d. Johnson,
and it is still law. And in fact, after Texas d. Johnson,
Congress actually tried to make a federal statute criminalizing burning
the American flag and it was found unconstitutional. It is
(06:09):
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.
Right If he was charged with, you know, creating a
(06:29):
fire hazard, I suppose that, apart from the fact that
it's clearly First Amendment retaliation, I suppose that you could
be criminally charged with creating a fire hazard in a
public place or something like that, but no flag burning
remains protected regardless of what the President or Congress says
(06:51):
about it. It would take either an amendment to the
Constitution or a very serious change and Supreme Court jurisprudence
to make five burning illegal.
Speaker 2 (07:04):
Okay, Yeah, so this is the distinction I'd love for
us to get back to in a moment between like
legality versus what, you know, the sort of like box
that that powers decide to put a thing into. Like
I know, I've I've definitely been detained not for being
an annoyance to the cops, but within my legal rights.
(07:25):
But they'll say, ah, but your shoes untied on a
Tuesday whatever, and then waste my time.
Speaker 3 (07:33):
Let's talk about that, And 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
(07:54):
we do that, why don't we talk about sort of
some of the categories that are playing in playing here
and be really clear about definitions or at least understand
that there are differences between these categories, right, because there
is a difference between the law and political discourse. And
there is a difference importantly between law and power. And
(08:19):
there's certainly at least some daylight between the legal constraints
on state power and the state's power to ignore those constraints.
And then I think what will be significant to this
discussion is there is a significant difference between antifa, which
(08:40):
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.
And there is yet more difference between the booking man
that is being invoked by that and the individuals and
(09:01):
organizations that the administration actually intends to target. There's a
difference between political targeting, surveillance, disruption, and prosecution, right, those
things are all different, And 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
(09:27):
the First Amendment, and politically motivated conduct that means illegal.
So you know, 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, and an executive order that is
(09:47):
inconsistent with the constitution or the existing law at least
ought to be unenforceable.
Speaker 2 (09:53):
Okay, but yeah, but recognizing that that distinction, you know,
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
(10:15):
person decides to attack you because they've heard some conspiracy
theory about you. But so that distinction of like, well,
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, right, because it means you're not
spending you know, an extra thirty years or twenty years
or whatever behind bars.
Speaker 4 (10:36):
With the terrorism enhancement.
Speaker 3 (10:37):
Well, I mean that is also called comfort. I'm really
not trying to be dismissive. I think it's important to
recognize what these distinctions are and the 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
(11:00):
at resisting what's coming down the pike. And in order
to do that, we need to know what's coming down
the pipe. 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
(11:22):
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 you know is
desirable by this administration will be condoned by this administration.
(11:43):
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 I think
the ways in which it is likely to be dangerous
and some of the ways that it might not might
not be. And again I'm not trying to be dismissive
but state repression exists all the time. State repression against
(12:05):
leftists and anarchism 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
(12:25):
political extremists, which was a label that was being applied
to groups on the left as well as neo Nazis
and all right groups. So this administration has already been engaged,
and not just this administration, right, we have centuries at
this point of targeted disruption of left movements. The way
(12:48):
that it's currently being rationalized is a little bit different,
the way that it's being broadcast normalized is a little
bit different, but it's 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
(13:09):
scale maybe rather than it's a difference in scope rather
than nature.
Speaker 2 (13:15):
I think, yeah, I think that's an important distinction. I
think that like sometimes people in the center and even
sometimes people on the left, will look at in particular
things that Trump administrations do because they are obfuscatory, they're
like confusing, and they're bombastic, and there's a part of
us that that we'll say like, no, but that's that's
(13:36):
not what's actually happening. That's not what actually was the
motivation for that person or like that person voted you know,
Republican in the last election.
Speaker 4 (13:43):
Whatever.
Speaker 2 (13:43):
And so I think that that distinction that you're making
of you know this, this may not this may be
like an approach to motivate the base, it may prove
not to be legally like standing, but that doesn't mean
that it doesn't have an impact on people. Yeah, and
what we should be able to looking for out of
this is a projection of not only like a call
(14:05):
to action or red meat for the base or whatever,
but also like a clear proposition of that's meant to
chill us and chill some 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.
Speaker 3 (14:21):
Right absolutely, And I think it is important to point
out right now we're seeing a lot of people pointing
out the hypocrisy and sort of the fact that these
rationales are really untethered from factual reality. And I suppose
that's true and important to note, but pointing out the
(14:43):
hypocrisy is not going to be particularly useful. I mean,
I think it's part of the point, right. Manipulating the facts,
making narrative claims that are totally unsupportable, and muddying the
waters in this really fundamental way is part of the project.
Speaker 2 (15:02):
There was a German jurist I guess who became the
highest jurist during the Nazi regime in Germany, but continued
writing theory like was writing it before as a member
of the Conservative Revolution that they called it, and then
afterwards he survived the war and continued living in Germany
writing Karl Schmidt, who talks a lot about like the
(15:24):
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 controller or in the protected
(15:46):
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. And it feels like a lot
of the stuff that the Heritage Foundation and Project twenty
twenty five has been pushing was that they have this.
I know that there are some theocrats in that movement.
(16:09):
There's the unitary executive theory that a lot of them
have been pushing, and they'll play with this idea like
the Trump administration will play with this identity of the
King King Trump or whatever the Dawn as it were,
like making these executive decisions and being unbeholden to anything else.
And they've actually been, like you know, saying to courts,
(16:30):
you can't stop us from deporting these peoples who with
unsafe third country whatever, stop us. I wonder if, like
I wonder if you have any comments on this, if
I'm coming out of left field or what.
Speaker 3 (16:42):
Well, look, I'll say it is for Karl Schmidt as
opposed to the Heritage Foundation, he was at least intellectually honest. Yeah,
I think that.
Speaker 5 (16:50):
We are in this moment where they're trying to normalize
what we Schmidt would have called like a state of exception,
where they're sort of unbridled executive power, the sort of
suspension of any constraints on state power.
Speaker 3 (17:03):
Right. And it's funny because I've been in conversations over
the last months where and talking with a bunch of
my friends, none of them 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,
you know, And it's sort of amusing for a bunch
(17:24):
of anarchists to be like, oh, no, the rule of
laws 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. And that's exactly
what Schmidt envisioned and argued for Frankly, and I do
think we're seeing that. I think one of the things
that I've noticed in some of these eos, especially the
(17:44):
couple of statements from the last few days, is he
keeps talking about things like love of God and Christian
anti Christian sentiment, which is I mean, you know, this
is entirely incompatible with the First Amendment, which provides no
state shall establish our religion, right. I mean, we really
are outside the contours of recognized you know, legal norms,
(18:11):
constitutional norms, and 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.
Speaker 2 (18:43):
Kind of shifting a bit like let's get into some
of the implications of this. So if it hasn't changed law,
but we recognize that practices and culture are being shifted.
I've heard of a bunch of people getting fired and
getting docxing attention. There's a website now I think called
like who Killed Charlie Kirk? The People who Killed Charlie
Kirk or something like that, and maybe an app. It's
kind of like the post Charlie Kirk assassination version of
(19:07):
Canary emission. Does this mean that police are coming after
people for sharing memes? Is that happening? Is that what's
happening in these cases?
Speaker 3 (19:16):
I mean 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 is just following up on a tip. But
(19:37):
that said, this doesn't vitiate the First Amendment. Let me
say that in human language, thank you. 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,
(20:01):
that 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 doxing and having
negative social consequences and fallout from this kind of stuff,
(20:24):
and it certainly is you know, can be life ruining. Again,
I don't mean to trivialize the effects of this kind
of retaliation social retaliate, 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
(20:47):
statement that came out on the twenty second and yesterday
particularly identify certain modes of that kind of social conduct
that you're talking about, like doxing swatting rag, which is
making false report of like an ongoing violent crime, so
that a swap team shows up and raids somebody's.
Speaker 2 (21:06):
Home, which can be deadly right, this is very.
Speaker 3 (21:10):
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 sort of protective,
(21:32):
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
(21:53):
who are running that silly website about people who say
something mean about Charlie Kirk.
Speaker 2 (21:59):
Yeah, I guess to me, And this is the speculation
outside of like legal advice or anything. Not that we're
giving legal advice, but outside of like the legal framework.
Speaker 3 (22:07):
Definitely not giving legal advice.
Speaker 2 (22:09):
I mean, it kind of points to a thing that
already this 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. I mean,
it feels like it's a part of the creation of
a differentiated subjectivity. Like there's the subject of the state
(22:32):
that falls under the values that are being attacked Christianity, whiteness, heteronormativity,
these like patriotism in these certain ways versus the people
that are doing these same things but are corrupt, are dirty,
are outside our internal enemies, are Soros funded. However we
(22:55):
want to like yeah that, but yeah, I guess that's
not I mean, that's this is nothing new.
Speaker 4 (23:01):
It's just an amplification of that same right.
Speaker 3 (23:03):
Yeah, very much. And you know 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
nonconforming people and what they're calling anti buzz. So you know,
(23:24):
we're seeing we've been see 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. That and I mean
ranging from FBI agents on the ground to doj with
(23:45):
people who will enthusiastically and blindly pursue these priorities, and
using a lot of resources to target the nonprofit text
status and funding of groups identified as being aligned with
any of the disfavored movements. And one of the things
that they're doing is kind of it's this real spaghetti,
(24:09):
you know, 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 I think it's all being it's mutually compounding, it's
mutually reinforcing, it's demoralizing, and in particular, the stuff that's
(24:30):
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 sort of make a
policy and make it so and have it be carried
out by FIAT, and he has made his own private
(24:50):
army with ICE. And I think one of the effects
that I in just 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. And
I do want to point out again it's absolutely devastating
(25:12):
to see what's happening in the immigration space, but in
fact he does not have that level of control over
the rest of government and over non immigration laws, and
I think that's really important to remember.
Speaker 2 (25:28):
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 like with
the like 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
(25:50):
if it's constant and overlapping enough, then eventually just military
being on the streets, generally rousting houseless folks is going
to be a normal thing.
Speaker 3 (26:02):
Man, I'm in New York. There's military people in all
sub price like that got very normalized post nine to
eleven in certain places, and so you know, again this
is not to say that it's okay, but it isn't new.
Speaker 2 (26:16):
So take it back to antifa. Sure, Antifa, Antifa. How
is the administration identifying Antifa and the left and what
are they actually dismantling and attacking. I'm thinking, like, let's
talk about bilfunds or like lgbt QI, a youth advocacy
organization's secularist groups, like yeah, what's going on?
Speaker 3 (26:41):
Yeah, well this is 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. So one of the
(27:01):
interesting issues here is that a significant group of the
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. And these are people
who have nothing whatsoever to do with Antifa, by any
stretch of the imagination, who are being attacked, whose funding
(27:23):
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
(27:44):
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 universes
cities to point out that in fact, there is a
legally established difference between anti Semitism and anti Zionism, that
(28:11):
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
(28:34):
on the law. And 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,
(28:59):
and seed 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 you know, this
is to me one of the great dangers of normalizing
these discourses is that these large institutions are engaged in
(29:21):
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.
Speaker 2 (29:33):
I think we also sort of 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 refusing to offering their fealty or whatever to the administration.
And we're seeing it now also with some of these
large media corporations silencing some of their pundits or whatever,
(29:54):
or in some cases, I mean it's clearly quid pro
quo because they've got, you know, a merger that's being
discussed by the FCC at the moment.
Speaker 3 (30:04):
Well, what we've seen, though, we have seen a lot
of that sort of 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,
(30:27):
when we fight, we win, and so 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
(30:48):
who are not related to Antifa, and one of those
groups is coasters, like including boomers, who are on Facebook
and Twitter making jokes about how the right it's so
hip critical, and those people are getting targeted, and I
would just gently remind everyone that the First Amendment does
still exist and that the solution to repression is not
(31:09):
self censorship but courage. And also, 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
(31:31):
law enforcement, which I referred to a minute ago, and
I think the groups that are you know, exposing ice
are definitely going to be targeted have already been targeted
for that activity, but it sort of remains to be
seen how that can happen while also protecting Canary mission.
Right then, we have groups that are being perceived as
(31:54):
or identified as Antifa. Who are 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 surveiled, are already highly surveiled.
And this is the group of people who I think
are actually probably most used to this and best prepared
(32:16):
for it, and also might be really hard to prosecute
effectively because they're not doing crimes and you know, 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
(32:40):
the money we have, right Like, we're all handing around
the same staff of twenty singles to each other. But hey,
you know wirefraud. What I can say is that you know,
something like a bail fund, and you know, community support
funds do need to be very cautious. That has already
(33:01):
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. And this
is once again something that largely is a feature of
(33:25):
far right organizing. Right. I don't know if you remember,
but Steve Bannon was actually prosecuted for wire fraud because
he was raising money to do something.
Speaker 4 (33:35):
Build the wall, Build the wall.
Speaker 3 (33:38):
He was raising money to build the wall, but not
using it for that purpose, which is wirefraud. Right. 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 and track and
use that money. So most of the people, I would say,
the overwhelming majority of people who are sort of going
to be subject to this kind of monitoring A have
(33:59):
already been subject to it, and b haven't actually done
anything unlawful. And you know that doesn't mean this won't
be disrupted. It just means, look, I'm not naive enough
to say that your innocence will protect you, but it's
a good start. And 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.
(34:23):
And that's actually just a different a different group, right,
And those things were illegal last week and they're illegal now,
and they're not more illegal because they're politically motivated. Right,
Although you know there are terrorism enhancements and sentencing enhancements
and things like that, the fact is, like, you know,
it can't be more illegal to spray paint Free Gaza
(34:44):
on the side of a building than it is to
spray paint I Love Trump on the side of a building. Right.
Speaker 2 (34:50):
I mean, what whether or not this like pans out
in the courts, right is one thing. But I know
that like, say, for the library case that happened here
where people were arrested because some people were filming in
this like Palestine related workshop in a public library and
they were asked to stop filming and then a scuffle
(35:11):
broke out and a phone got knocked to the ground
and people got apparently dragged outside. Again, I was not
there for this, but like now the people are facing
like people who were in the crowd, who are not
the people who were filming or facing charges of ethnic intimidation.
That's a very specific case in a different jurisdiction from
where you are practicing law. But it's not just about
(35:31):
like 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.
Speaker 3 (35:43):
Right. Absolutely, And 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 reset statements don't
change the way in which they happen, right, And there
are ways of targeting people for prosecution based on their politics,
(36:07):
and those have 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. Yeah, like the fact
that the President said Antifa is a domestic terrorist organization
just doesn't really change the legal landscape. This has been
(36:28):
the targeted surveillance of the left, whether you call it Antifa,
whether it's the Green scare, whether it's the Black Liberation Army.
This 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
(36:50):
creative strategies for monitoring and criminalizing political activities. You know, again,
state repression and the tools that are used in the
service of state repression are just not new. And the
fact that you put out these statements is maybe a
good reminder that we should be circums fact and aware
of repression and prepared to bear up under it.
Speaker 2 (37:22):
So is the RICO sixty one 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, civil liberties organizations.
Section H of that September twenty fifth statement refers to
(37:43):
the Attorney General pursuing quote, politically motivated terrorist acts such
as organizing docs and campaigns, swatting, rioting, looting, trespass, assault,
destruction of property, threats of violence, and civil disorder like
I know, those are all things that you know, they've
already got charges attached to them. It's just these are
now being framed within the framework of being terrorist acts.
(38:07):
But you know, you said, like these practices of attacking
adjacent like 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 ernark like they gave a Merriam Webster
Dictionary definition of anarchism and then said, all these people
(38:29):
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.
Speaker 3 (38:41):
So, first of all, I do think that that'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. RICO, let's talk about RIGO. Briefly, is
the Racketeer, Influenced and Corrupt Organizations Act, and it was
(39:05):
enacted in I think nineteen seventy to go after the mob. Right,
it was to go after crime families, but it's been
used against so called gangs and other politically motivated prosecutions
for a long time, and so RICO has really used
to kind of criminalize whole communities. But it requires that
an actual crime has happened. Right, association or ideology in
(39:30):
itself is not sufficient. So it requires an actual crime
has happened. And it also requires an quote an enterprise,
like a coordinated enterprise. And because the first Amendment for
text association and a large diffuse group of people sharing
values is not an enterprise, you know, I'm not sure.
(39:52):
It's not a straightforward path to say we want to
use rego in a politically motiv motivated way and to
actually be able to have I'm sure this group under
a net. Right. That's like, you know, saying we want
to go after Antifa is like saying we want to
go after people who like cats. Right, there are people
(40:13):
who like cats, but they certainly aren't coordinating together. I
suppose that there are actually people who would say, like, 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 prosecution or to mount a
(40:33):
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
and the court said you can't do that. The fact
that there's a large group of people who happen to
(40:55):
believe the same things does not mean that they are
an enterprise. So look, 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 if they
(41:17):
managed to do it. I would like to note something
about the stop coup City Rico. That's important. So first
of all, yay, those all those charges, those ricos were
dismissed for legal reasons of being utter bolts. And I
know that you know there's some concern that that will
be appealed, but I think it is worth noting and
(41:41):
celebrating that when we fight, we win. But sort of
more to the point in this context, I do want
to note that Georgia's RIGO statute is different from the
federal reco 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.
Right efforts to use federal RICO in a politically motivated
(42:03):
way have also failed. So if you look up like
the Ohio seven, which was a fairly early effort to
bring a politically motivated RICO that did not go great
for the government. So yeah, I think that's important to
note about RICO.
Speaker 2 (42:16):
So you mentioned this like FBI designation earlier, it had
been for a while. I think under I thought this
came up under Obama, but maybe it came up under
Biden for the prosecution of January sixth. But anti government extremists,
which included militia movements and also anarchists, it's been shifted
to far left extremists in the verbiage of the DOJ
(42:39):
and who they're pursuing. Anti law enforcement and anti conservative
attacks have been framed as you know, of considered effort
by far left extremists in the media, and also like
by these institutions as they're you know, moving forward before
they actually make any arrests or whatever, and through their
prossecutution sometimes using terms like you know, antifa or trantifa
(43:03):
or whatever sort of motivations they're giving. I also wonder
if you could say a thing specifically about this sort
of framing that is being given.
Speaker 4 (43:13):
Again, that is like.
Speaker 2 (43:15):
Like I was thinking about this before more recent mass
shooting events that have happened, or before the hullabaloo around
Charlie Kirk's assassination and the shooter the alleged shooters relationships
to other people, that there seems to be this concidered
effort around clinically framing and politically framing transness as a
(43:38):
mental health issue but also as a political extension of
woke gender ideology that's coming for your children. And it's like,
it's it's interesting because like, 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 dysorio or some some other experience,
(44:02):
they often have to use these like clinical terms for
what they are experiencing and why they need medication for it,
and not faulting people for making that approach because you
need the medicine that you need.
Speaker 4 (44:14):
But now this is.
Speaker 2 (44:15):
Being turned around and reframed as therefore, if people need
this stuff and they're making this argument, therefore they have
some sort of mental deficiency or some sort of issue
which is being used in order to challenge people's right
to keep in bear arms under the Second Amendment, or
saying that people are like because of their transnits being
(44:35):
motivated towards this attacks like, I don't know if you
have anything to again, not exactly like, not exactly a
legal issue.
Speaker 4 (44:42):
But I don't know if you have any observations.
Speaker 3 (44:44):
Well, I mean, I guess when it comes down to it.
Just to be very clear, the DSM makes it very
clear that or that being trans is not a mental illness.
That gender dys for you is distress cause by discrepancy
between the assigned gender and your actual gender, which would
(45:08):
exist if any cisperson were being treated as a gender
that they didn't identify with right that would be a
distress that would arise for any person. I think that
there are real problems with the sort of clinicization or
medicalization of gender affirming care. But I do want to
be very clear that that does not have to and
(45:31):
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 given that previous efforts to
(45:54):
restrict gun ownership on the basis of previously diagnosed mental
illness 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.
Speaker 2 (46:13):
So this term has been coming up a lot of
you know, 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 like what it means
to be called domestic terrorists? What changes that makes in
(46:34):
like how the law approaches he or how you can
be convicted?
Speaker 3 (46:36):
Yeah, gladly. So, 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, for
designating a domestic group a terrorist organization, and given the
current law on the matter, even with this Supreme Court,
(46:57):
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
(47:21):
real thing that has legal effect. There is a way
to financially designate a group or an individual, as you know,
having this kind of relationship to foreign terrorist organization or
an FTO. So, but there's no legal mechanism for designating
(47:42):
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. Just to like explain
ftos a little bit, there is a category of organization
(48:07):
that are designated by the State Department as quote, foreign
terrorist organizations ftos are designated by the State Department, and
they are listed on the State Department website. Right, it's
not a secret who they are. You're not going to
suddenly find out that you know, you gave money that
to I don't know the Greek equivalent of the ACLU,
(48:27):
and now it's you know, 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 FDO exists,
even in the face of overwhelming evidence to the contrary.
And if you have a connection to an FTO, you
(48:50):
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.
Speaker 5 (49:05):
Right.
Speaker 3 (49:06):
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. And frankly, this is
the idea that underpins material support for terrorism charges is
offensive to many people because it does feel very much
(49:28):
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 quote Antifa to foreign terrorist organizations.
Speaker 2 (49:47):
I was when you were saying that that had me
thinking a little bit about the Holy Land five case.
I was trying to remember that example. I guess like
to belabor this. Can we talk about the distinction between
domestic terrorist organization, which is a classification that doesn't exist,
versus the charge of committing terrorism because people who get
(50:09):
terrorism enhancements at least like the Maryus Mason one example
that comes to my mind, right, who is a member
of cell that was associated with the Earth Liberation Front
like so that 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,
(50:34):
amplifying the amount of time.
Speaker 3 (50:35):
Right. The difference is 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
(50:58):
our beliefsciations, 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
(51:21):
in certain illegal acts and a judge determines that those
acts were motivated by desire to do terrorism, that the
penalty for engaging in those acts can be enhanced. But
you cannot designate a group of belief or an expression
(51:42):
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, but it's impermissible to prosecute
people for having those identities.
Speaker 2 (52:03):
I guess I have note as I understand the terrorism
enhancements that the prosecutors are pursuing in the Luis gim
Angioni case have been dropped.
Speaker 4 (52:11):
Is a thing that I heard, yes.
Speaker 2 (52:14):
Which I mean 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 yes, what
do the courts know? Okay, thank you for making that
distinction more clear. 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
(52:37):
do we rally support for our identities and positions, what
are some good practices understanding, Like, having had this conversation,
the terrain on which we're operating.
Speaker 3 (52:48):
Absolutely, So I guess what I'd 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 like
an aberration. I would say, Look, this administration is preoccupied
(53:13):
with the funding streams for very mainstream liberal causes, and
the fact that it's sort of lumping everything under the
banner of antifa, you know, is probably a big surprise
for some of these groups, like you know, suburban white
moms against guns or whatever. But they are very focused
on things like wirefraud and money laundering and stripping nonprofits
(53:33):
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 very
precise track of your funds. If you raise money, use
(53:56):
it for that they knew said you were going to
use it for. Have an accountant, you know, 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,
(54:19):
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 light of federal agents,
and that means that it is safest not to say anything. Besides,
I'm represented by counsel. Please leave your name a number,
and my lawyer will call you. There is truly never
(54:40):
a compelling reason to speak to federal agents before consulting
with an attorney. The Energy Anti Repression Hotline can be
reached at two one two six seven nine two eight
one one. 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
(55:03):
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.
Speaker 2 (55:24):
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 shared, and for the work that
you do.
Speaker 3 (55:31):
MO. You're very welcome. It's always a pleasure. It Could
Happen Here is a production of cool Zone Media. For
more podcasts from cool Zone Media, visit our website Coolzonemedia
dot com, or check us out on the iHeartRadio app,
Apple Podcasts, or wherever you listen to podcasts. You can
now find sources for It Could Happen here, listed directly
(55:52):
in episode descriptions. Thanks for listening.
It Could Happen Here News
Hosts And Creators
Robert Evans
Garrison Davis
James Stout
Show Links
AboutPopular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Cardiac Cowboys
The heart was always off-limits to surgeons. Cutting into it spelled instant death for the patient. That is, until a ragtag group of doctors scattered across the Midwest and Texas decided to throw out the rule book. Working in makeshift laboratories and home garages, using medical devices made from scavenged machine parts and beer tubes, these men and women invented the field of open heart surgery. Odds are, someone you know is alive because of them. So why has history left them behind? Presented by Chris Pine, CARDIAC COWBOYS tells the gripping true story behind the birth of heart surgery, and the young, Greatest Generation doctors who made it happen. For years, they competed and feuded, racing to be the first, the best, and the most prolific. Some appeared on the cover of Time Magazine, operated on kings and advised presidents. Others ended up disgraced, penniless, and convicted of felonies. Together, they ignited a revolution in medicine, and changed the world.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.