← The Lawfare Podcast
Loading summary
Transcript54 lines
- [00:01]
LT Edwards
The Electronic Communications Privacy act turns 40 this year and it's showing its age. On Friday, March 6, Lawfare and Georgetown Law are bringing together leading scholars, practitioners and former government officials for installing updates to ecpa, a half day event on what's broken with the statute and how to fix it. The event is free and open to the public in person and online. Visit lawfaremedia.org ecpaevent that's lawfairmedia.org ecpaevent for details and to register
- [00:36]
Tom Brzozowski
BetterHelp Online Therapy bought this 30 second ad to remind you right now, wherever you are, to unclench your jaw, relax your shoulders, take a deep breath in and out. Feels better, right? That's 15 seconds of self care. Imagine what you could do with more visit betterhelp.com randompodcast for 10% off your first month of therapy, no pressure, just help. But for now, just relax.
- [01:18]
LT Edwards
We optimize hydration, movement, supplements and sleep. But most people completely ignore the air they're breathing. And when your air is off, your body feels it first. The Blue Signature Air Purifiers by blueair quietly remove airborne pollutants, odors, smoke and allergens, supporting deeper sleep, better recovery and clearer focus. It's the most customizable air purifier you can get, with exclusive accessories designed to
- [01:42]
Stephen Monticelli
fit your space and your style.
- [01:43]
LT Edwards
Visit blueair.com and use code signature30 to elevate your wellness routine.
- [01:52]
Ben Wittes
This episode is brought to you by Bill, the intelligent finance platform that helps businesses and accounting firms scale with proven results. When you're growing a business, the stakes get higher. You can't afford infrastructure that breaks under pressure. If you care about security, reliability and scale, I want to let you in on a secret. Bill is the foundational software that nearly half a million businesses and 90 of the top 100 US accounting firms use to automate back office workflows, add secure controls to payment processes and scale without increased overhead. With AI powered Accounts Payable Automation, Bill erases the busy work from capturing invoices, routing approvals and processing payments, syncing seamlessly with the top accounting software platforms so your books are always accurate. But Bill isn't just accounts payable, it supports the full payments workflow. Bill has processed over $1 trillion in transactions, leveraging that expertise to help you manage, move and maximize your finances. So stop the guesswork and start scaling with the proven choice. Go to bill.com proven to talk with a payments expert and get a $250 gift card as a thank you. That's bill.com proven terms and conditions apply. See Offer page for details.
- [03:32]
Tom Brzozowski
Someone got shot. This is a legit case. However, you know, the next case, when they kind of roll this thing out under circumstances that, you know, a little specious, you know, it could subject this statute to litigation risk and erode its efficacy over time.
- [03:49]
Peter Beck
It's the Lawfare podcast. I'm Peter Beck, associate editor at lawfare, with Tom Brzozowski, who up until very recently headed domestic terrorism prosecutions at the Department of Justice, LT Edwards, Lawfare's public service fellow, and Stephen Monticelli, a special investigative correspondent at the Texas Observer.
- [04:09]
LT Edwards
You're hanging your terrorism theory on a case that is that leadership is bragging about this first terrorism charge of its kind. For antifa on threads that kind of focus on the ex post conduct, not necessarily the defendants intending and knowing and planning to do this thing, but afterward then concealing this person or concealing the evidence and calling it terrorism.
- [04:34]
Peter Beck
Today we're talking about domestic terrorism prosecutions and the ongoing trial of an alleged antifa cell in North Texas. Stephen, let's start with you. Can you take us back to the events of July 4, 2025? Sure.
- [04:49]
Stephen Monticelli
So on July 4, 2025, what exactly happened is somewhat contested as we're hearing in the testimony in the case and the differences between the prosecution's view and the defense's view. But what I think we can confidently say happened on that day is that around a dozen people converged on the Prairieland ICE detention facility in Alvarado, Texas. According to defendants and defense attorneys, they believe they were there for what they call a noise demonstration, which if you're not familiar with that, is basically a protest intended to create distracting noises and loud noises as a way to show displeasure. And what transpired was that this group of about a dozen people, all wearing black, wearing, you know, masks on their faces, some of them possessing firearms, began to make noise, shoot off fireworks in the direction of this facility. A couple of them also spray painted cars and a guard facility and, you know, made statements and yelled things at thorough officers who came out of the facility briefly. And from there, things quickly escalated. A 911 call was made from the facility alerting local authorities to a disturbance that was occurring. And a police officer from El Dorado Police Department showed up. His name is Lieutenant Gross, you know, actually recently testified in the case, and according to his recent testimony, it actually provided some new details as to what happened. But he arrived, he saw an individual running away, and he quickly pulled his weapon, thinking that he was in a dangerous situation. And what Happened after is, you know, up for debate between the prosecution and defense. But what we know is that shots were fired. Lt. Gross was hit. Lt. Gross also managed to return fire but did not strike anyone. And the dozen protesters, and one of them who was found to have fired shots and is the alleged shooter in this case, they fled shortly after 10 of them were arrested. And the one who was not arrested evaded arrest for several days. That, that is the alleged shooter in the case, Benjamin Song. And a lot has transpired since then, but I think we can save that for the rest of the discussion.
- [07:28]
Peter Beck
So, Tom, I'll pivot to you next. Originally, a lot of these protesters alleged ANTIFA members. They were charged under other statutes, such as attempted murder on a federal official. And then since then, over the course of the months after, there's been kind of a trickle of charges under this statute called providing material support to terrorism. Could you talk about the trickle of those charges and what exactly providing material support to terrorism means?
- [07:57]
Tom Brzozowski
Yeah, look, I, I, I think LT is probably going to have the more precise answer on this one, but for sure. So, you know, I think the timing on this is, is interesting, let's put it that way. So, as you rightly note, as I understand it, the case, you know, the individual, the defendants were initially charged with a series of federal offenses, some of which included, as you, as you noted, you know, like attempted murder of a federal official and things of that nature. And then I understand that that occurred in the July timeframe, if I'm not mistaken. But then, of course, you know, we had the assassination of Charlie Kirk. And in short order thereafter, the issuance of an executive order purporting to designate antifa, followed quickly on its heels by the issuance of a national security Presidential Memorandum 7, which was styled as a organizational plan for combating political violence and domestic terrorism. Shortly after that, we have a superseding indictment in which two things occurred of note. First, a charge related to providing material support to terrorists, which is 18 USC 2339 capital A for those that are interested, was brought, and it was tied to a definition of this, these defendants as belonging to a cell or network related to antifa. So those two things were not done by mistake. Because what you have, of course, is a flurry of activity and rhetoric issued by the administration in the form of actual strategic documents like the executive order like NSPM 7, that specifically concerned ANTIFA and ANTIFA aligned activity. And then on its heels, you have a superseding indictment characterizing these defendants as, not surprisingly, Antifa or Antifa aligned coupled with what is broadly understood to be a terrorism related charge. And so of course, as you might expect, I think the day or after, maybe the very same day, you're going to have senior DOJ officials and the FBI director pointing to that charging document saying, look, the government is taking this seriously. This is the first time we're charging, we've charged antifa with terrorism, of course, just sort of hand waving all the specifics associated with that and the timing, which is peculiar to say the least. So we can, we can get into the specifics of 2339A. I don't know, maybe LT wants to cover the, the elements in the mens re and all that and how it's kind of qualitatively different than most of the other charges we typically see. I will hasten to add, maybe we can pick up on this later, that, you know, this particular charge, obviously the title of it kind of signals pretty strongly that it is a terrorism related charge. It is construed as a federal crime of terrorism under the code, however, technically speaking, and it does not require proof of a terroristic intent, let's put it that way. So it's a, it's slightly misleading that respect, but I'll turn it over to LT to maybe give a rundown on what it does. I'm not to put you on the spot, lt, but kind of figure out. I know you did, actually. I remember you doing a pros memo on this back in the day. And so I know you've done the deepest of deep dives on this, this particular statute. So I'll let you take it, take it from here.
- [11:37]
Peter Beck
Yeah.
- [11:37]
LT Edwards
So Tom and I used to work at the Counterterrorism Section together at the National Security Division. And you know, while there, and then afterward when I left to go be an AUSA in DC and EDBA, I charged 2339A both in domestic and international contexts. And I think that broader backdrop matters here to talk about because historically 2339A was used in a lot of international cases where we would be able, we being the Department of Justice, would be able to charge folks, you know, one, two, maybe three clicks before something goes boom. And if it's unclear whether or not it's affiliated with something that's a designated foreign terrorist organization, which would warrant a sister charge 2339B, then you could still charge A. And so in the international context. And then there have been a smattering of cases domestically charging 2339A, but I think to talk about why that matters might require even a further step back, which is to say how 2339A is structured and implemented. And Tom was hinting at this. 2339a does not require a defendant to be intending to support a particular group at all. It is titled in the statute as material support to terrorists. And some of that is a vestige of the history of how that statute came first and then 2339B later. But the title of the statute is a little bit of a misnomer in that the way it actually plays out is it's prohibited to provide material support to particular acts that are enumerated in that statute. And so there are all these other federal crimes of terrorism and other statutes that Congress has kind of wedged into 2339A and says, hey, if you provide material support to. To others committing one of these many acts, then we can. You can be charged under this statute. And that's what I mean by one to two clicks before something goes boom. There are these particular kinds of very dangerous acts that Congress wanted to say, hey, we don't want to wait until you've committed that act. We want to prosecute and stop it when people are even just providing support to those acts before they occur. And so that's how 2339A generally functions. And so I hope that's somewhat helpful, Peter, and happy to then talk a little bit about how it plays out in this case, but I'll go wherever you want to go.
- [14:06]
Peter Beck
Yeah, of course. So could you talk a little bit about how the Department of Justice previously, and the National Security Division, how they approached material support cases in the domestic counterterrorism context and kind of the norms and practices around bringing that charge?
- [14:24]
LT Edwards
Yeah, and Tom can jump in here, too, because I think this is a really important question. When we're talking about domestic terrorism and we're talking about 2339, those are not complete overlaps, but they supplement one another. And so what I mean by that is domestic terrorism. And when we're talking about these policy moves by the White House to designate an organization like Antifa as a domestic terrorism organization that is not necessarily impacting how the government ought to use this statute. 2339A, as I said, 2309A can apply anywhere around the world, domestic, international. It's not tied to a group. And so, you know, that ought to pluck something in your mind when you read this indictment in this case. And I'M sure we're going to get more specific to the case. When you read Antifa over and over and over again, you have to ask, okay, why is the government including. Including that if these statutes don't require there to be an affiliation or an intent to support a particular group? And I have some thoughts about why, but that should be a question in your mind and certainly a question from the defense mind. And it was in some of their filings saying that Antifa shouldn't even be uttered by the government or its witnesses at trial. So now, to answer your question, how has the government historically charged this statute? We've typically charged it again when there has not been a clear affiliation with something that's been designated a form foreign terrorist organization. One example is the counterterrorism section charged, and I was, you know, full disclosure, affiliated with this. We charged a group of defendants who kidnapped children in Georgia and took those 12 children to New Mexico and trained some of those children to prepare to attack FBI agents while they were holed up in a desert compound in New Mexico. And so we charged 2339A because we thought there are two things in every prosecutor's mind, right? Can we and should we. The Kenley was clear, right? These people were providing material support training children to kill federal law enforcement officers, which is a statute that is actually in play in this case. And then the should we mattered and we thought it was relevant. It was important to have the word terrorism in this case because these defendants were training specifically to kill government agents. And part of the backdrop and context was one of the children died when they engaged in this kidnapping. It was a parental kidnapping. And when they. They. The theory was from these defendants is that that child would be resurrected, and when that child resurrects, it would call upon the other children to kill in the name of this religious sect, kill these agents. And. Right. So there's no foreign terrorist organization element there. You're not going to charge 2339B. You could just charge some gun crimes, but the penalties may not be significant enough. So the point is, part of what the government thinks through is should we charge this? Does it. Does it require maybe the discussion of terrorism and what that looks like in a. In a broader context? And should we be using that word before the jury? So part of that would be playing out, I would think, in the government's mind when they look at a case like this, right. Do we want to use the word terrorism? Do we want to charge terrorism statutes? And then as the public we should be asking why is the government answering that question? Yes, in a fact pattern. And before we go into the case, I do think it's important to say it's a bad case. Right. Someone shot at these federal law enforcement officers. And so when we engage in some critiques of whether the statutes make sense or the policy decisions from leadership, we shouldn't be diminishing, and I don't think any of us will. But it was worth saying we're not in any way intending to diminish here the significance of the case. I mean, someone shot at a federal law enforcement officer and struck them.
- [18:09]
Tom Brzozowski
Yeah, I'll just, I'll make a couple points just to kind of COVID some ground that's been covered before in previous podcasts, but just to, to maybe illuminate some of the, some of the concepts that LT was, was outlining in the first instance, you know, it should be understood that although, you know, there was this executive order that purported to designate again, antifa as a, as a foreign or like as a, as a domestic terrorist organization, it's not really a, it's not really a thing. There's no statutory vehicle to actually do that. And so its legal impact is de minimis. But it does muddy the waters considerably because most folks aren't going to necessarily appreciate that they see an executive order. It suggests that this entity is designated as a domestic terrorist organization. They take that as face value, but it's not a thing. So it doesn't have any legal force is what I'm getting at. And so, and that plays into charging determinations along the lines of what we're probably seeing at Prairieland, in the sense that deploying the word designation suggests that there is a mechanism with which to actually do that. But, you know, there is a sharp distinction between what the government can do in a foreign context, namely designating foreign entities as foreign terrorist organizations. There's no corollary to that on the domestic side of the House. So there's no way to do it. With regard. Quickly to. You asked about guardrails about like how. What process within the National Security Division when it comes to charging these types of cases within the Department, there was and still is things called justice manual provisions. And these are really just internal guidelines that direct U.S. attorneys or AUSAs on, you know, the process they need to follow in connection with, you know, doing certain things, you know, either prosecutions or whatever the case might be. But as it relates to this particular charge, this is because it is a terrorism related charge in the main, that would require AUSAs and US attorneys to effectively get their work reviewed by Remain justice before they bring that statute, before they charge it. That is to say, did that happen here? It's not clear. I'm not going to speculate, but it's not immediately clear that that did happen. And then I will note one other Justice Manual provision that should have been followed. It's still in the Justice Manual right now as we speak. But it specifically concerns undertaking investigations and prosecutions related to domestic terrorism, specifically. So, for example, if an AUSA or a US Attorney intends to bring a charge and in the pleading document it references a named group or organization that's related to domestic terrorism, they are required to get that reviewed and approved by Main Justice. So one of two things is happening here. Either that process is sort of no longer being undertaken. That's one possibility. Or number two, it is being undertaken. And they this particular language with regard to this definition of antifa that was deployed in the, in the charging document has been and was reviewed and approved by Main Justice. So those are the two things that are going on right now, but that and those are the guardrails that typically are in place in connection with bringing this type of charge.
- [21:29]
Peter Beck
So, diving into the specifics of the case a little bit more, Stephen, who exactly are these defendants and how did they come together?
- [21:37]
Stephen Monticelli
So there are a total of 19 people who have been arrested and charged with various crimes in relation to this case. But those that are on trial this week are nine that have not pled guilty to any charges. And they were all in attendance of this protest. The group of folks that, you know, gathered outside of Prairie land on, on July 4th. They are, you know, from this sort of activist Milo in the North Texas area. So, you know, folks that had ties to leftist organizing of one form or another. Some had been members of the Socialist Rifle association. Some have been affiliated with an organization I believe is now defunct. Calling it an organization may not even be the correct way, but a group called the Elm Fork John Brown Gun Club, which is a part of, of this sort of decentralized movement of organizations similar to that across the country that are leftist in nature and have sort of engaged in this practice of bringing firearms when legal, to protests or sort of, you know, drag shows, for example, that have been targeted by protests in places like Texas and other states. And the individuals that have been charged, they kind of are across the board in terms of backgrounds. You know, there's teacher, there's a teacher, UPS employee, a variety of sort of professions and individuals that had come together you know, generally through just this sort of activist environment that has responded to things like these drag protests and other things over the past few years. And I've reported on a number of protests in the past where members of the Elmfork John Brown Gun Club or others had shown up with weapons, and there had never been violence. There was one instance in Dallas where individuals with weapons, dressed similarly actually kind of had a standoff with local authorities regarding a planned homeless encampment sweep that didn't end up happening that day. And there was no violence. So, you know, understanding kind of their perspective as individuals, it's. It's folks that had seen this sort of thing happening over several years without incident and then arriving, you know, together as a group on July 4th. You know, from what we understand from indictments and court filings, you know, they were in Signal group chats together, Signal being an encrypted messaging platform that has been cited as evidence of sort of their quote, unquote, criminal enterprise, as it's described in some of these filings. I should also note that Signal is a widely used tool by journalists and even members of the United States federal government, which has happened not without controversy. So these individuals are, you know, broadly speaking, a part of leftist activism in North Texas. And, you know, some had also been involved in what you could call like an anarchist book club where they would discuss, know, reading group. You know, they would act as a reading group and discuss zines and essays and books and those sorts of things which also are factoring into the government's argument that those sort of zines or pieces of literature were insurrectionary in nature and evidence of intent to commit an act of terrorism. Some of the individuals had sort of prior arrests relating to things like what I would call civil disobedience. And, you know, the Elm Fork John Brown Gun Club. There had been a prior case in Tarrant county here in North Texas, where there was a protester on a drag show that had drawn right wing protesters. And there was a confrontation in which a member of the Elm Fork John Brown Gun Club had pepper sprayed one of these individuals. And that resulted in a number of proceedings. I believe one of those individuals that was charged ended up being found not guilty in a trial, not the case for all of them. So, you know, to answer your question, these are folks that, you know, would broadly be described as left wing activists of various stripes, but none of them had really had any past records with regard to actual sort of violence or terroristic activity.
- [26:06]
Peter Beck
Tom, you've written some for Lawfare about The designation of antifa as a terrorist group. I'm curious, taking the kind of descriptions of these protesters and how they came to be there at the detention center in Texas that day, I'm curious how you kind of taking that definition as the Department of Justice sees it, how that definition applies to this case and broader circumstances.
- [26:32]
Tom Brzozowski
Yeah, and a lot of. I am not alone in noting that the manner in which, again, ANTIFA has been defined is so broad that it kind of sweeps in a lot of activity that could be construed as, again, following under a maximalist definition of antifa, which of course is short for anti fascism. And then the language in some of these other instruments, separate from the executive order that actually purported to Designate Antifa Specifically, NSPM7 also alludes to an ANTIFA adjacent activity that covers a range of viewpoints that on a spectrum from anti Americanism to anti capitalism to those that hold extreme views about gender rights. So the broader point here is that I think most security experts would understand ANTIFA to be more about a politics sort of an ideology, if you will, as opposed to a discrete entity or organization or even a network. It's like designating Marxism just writ large, which of course makes no sense because you can't designate an idea, as it were. And so what this does, though, unfortunately, because of the manner in which the language has been deployed in very official, you know, official pronouncements, again, an executive order is no small thing, a national security Presidential memorandum, no small thing. And then on the heels of that, this December, the Attorney General issued internal guidance to all the components of the Department of Justice and prosecuting components as well. So all the U.S. attorney's offices that specifically related to, again, a small slice of threat vector that typically would fall under the broader scope of what we understand to be domestic terrorism. And that slice, of course, specifically related to antifa and antifa aligned activity. However, the memo itself was styled like suggested that that small slice sort of swallowed up the entirety of what we understand to be domestic terrorism. And the problem with the memo is it went far beyond simply characterizing this threat in the manner that it did, as I said before, viewpoints that incorporated anti capitalist anti Americanism, whatever that is. But it went further and it directed internal components within the Department of Justice to do things like create a tip incentive line where the broader public can call in and get money for providing tips to the federal government about this sprawling threat vector that is ill defined, or the establishment of an actual domestic terrorist organization list where entities presumably would be nominated to be included on that list. The list itself is secret. The criteria for being on the list is secret. There's no means obvious means of redress should you find yourself on that list. And there are a number of other things that directly incentivize prosecutors and agents in the department to focus their efforts on antifa or antifa aligned elements, not to the entire detriment of the other domestic terrorism arena. There's nowhere in these directives that specifically says thou shall not investigate other types of domestic terrorism, but it does create an incentive structure that is going to necessarily trickle down and have an impact on folks that are in those offices doing that work on a day to day basis.
- [30:15]
Ben Wittes
Hey folks, I want to tell you a story about the founding of Lawfare. I started Lawfare and it was just a blog and then we realized we had to create an organization to support it and all of a sudden I found myself doing paperwork, forms, logistics, personnel stuff. It just completely ate up my day. And I want to say I was bad at it and it was repetitive, it was boring and I thought to myself there has to be an easier way to do this. I didn't know about Gusto at the time and in retrospect I wish we had. Small business life means hustling and figuring it all out a lot of times on your own. And I did it a lot lot of times on my own and it was bad. But you don't have to make the same mistakes I did. You don't have to spend your evenings guessing at tax forms or tracking down onboarding documents. Gusto handles all of that so that you can spend your time on the parts of your business you actually love. Like in my case, running a magazine about national security and law. That part I love. Gusto is an online payroll and benefits software system built for small businesses. It's all in one, remote, friendly and incredibly easy to use so that you can pay, hire onboard and support your team from anywhere. You save time with automated tools that are built right into the system. Offer letters, onboard materials, direct deposit, and more. It's automatic payroll tax filing, simple direct deposits, health benefits, commuter benefits, workman's comp, 401k, you name it. Gusto makes it simple and has options for nearly every budget. It's quick and simple to switch to Gusto. Just transfer your existing data to get up and running fast. Plus don't pay a cent until you run your first payroll. So try gusto today@gusto.com lawfair and get three months free when you run your first payroll. That's three months free payroll@gusto.com lawFair one more time gusto.com lawFair DeleteMe makes it easy, quick and safe to remove your personal data online. At a time when surveillance and data breaches are common enough to make everyone vulnerable, Deleteme sends you regular personalized reports showing what information they found about you, where they found it and what they removed. It isn't just a one time service, it's always working for you, constantly monitoring and removing, removing the personal information you don't want on the Internet. Let me give you a personal example of that. I first learned about Delete Me. This was considerably before they were an advertiser for lafair. And I learned about it at a conference of democracy activists where, you know, we were talking about what to do to reduce risk. If you're working in this field, people said, you need to have Delete me. And so I went out and got it and I got it from members of my family and I got the first report and there were, you know, 20 some odd data brokers who they had removed my data from. But then here's the key thing. The data brokers go back to work collecting on you. And so a few months later you get another report and these same data brokers, they're removing you from their sites again because Deleteme keeps at it. The New York Times wirecutter has named Delete Me their top pick for data removal. And you know, if you're somebody with an active online presence, you probably know that if you're going to protect your privacy, nobody's going to do it for you. You've got to do it yourself. This is a step that you can take. But if you're not somebody with an active online presence, they're still getting data about you. They're still using it to facilitate phishing attacks on you, to facilitate identity theft to. And if you've never been the victim of one of these things, you probably know somebody who have. And it's probably only a matter of time before it happens to you. Delete Me can help. So take control of your data and keep your private life private by signing up for Delete Me now at a special discount for our listeners. Get 20% off your Delete Me plan when you go to JoinDeleteMe.com Lawfare20 and use the promo code Lawfare20 at checkout. The only way to get 20% off is to go to join DeleteMe.com Lawfare20 and enter code Lawfare20 at checkout. That's JoinDeleteMe.com Lawfare 20 code Lawfare20 if
- [35:47]
Tom Brzozowski
you're listening to this, you're ready.
- [35:49]
LT Edwards
Ready to join the Industrial Intelligence generation. A generation defined not by age, but
- [35:56]
Tom Brzozowski
by a shared mindset to connect teams, accelerate efficiency and drive innovation.
- [36:03]
LT Edwards
Using the power of Aviva software to
- [36:05]
Tom Brzozowski
reshape industries, turning real time insights into real world growth. Discover our stories@industrialintelligence.com join generation I have you ever been stuck on a weight loss plateau? Trying everything and anything you can to lose that extra weight and reach peak health? We've all been there. But Noom's unlocked a secret to reaching the mountaintop. Go in micro the Noom GLP1 microdose program starts at $99 and is delivered to your door in seven days. Start your microdose GLP1 journey today at noom.com that's n o o m.com micro changes big results Noom GLP1 RX program involves healthy diet, exercise and support. Individual results may vary. Meds and personalization based on clinical need. Not reviewed by FDA for safety, efficacy or quality. No affiliation with Novo Nordisk Inc. The only US source of FDA approved semaglutide. Not available in all 50 US states. Hi, this is Matt from P1 with Matt and Tommy and this episode is sponsored by ebay. The cars you'll find on ebay are just different.
- [37:08]
LT Edwards
Different.
- [37:08]
Tom Brzozowski
They come with a story that you can't wait to share. Like this 1973 Dodge Charger on ebay that has been tucked away in an Arizona Barn for over 40 years. Only 55,000 miles and somehow in great running order, it even has a rare sunroof. Suddenly a car that was hidden for decades is being delivered in just a few clicks with ebay's secure purchase. All the paperwork handled. There are thousands of cars on ebay, ebay, from unique finds like the Pontiac Grand Prix SJ to daily drivers. And now with a new way to buy them. Ebay Things people love.
- [37:47]
Peter Beck
So LT I'm curious how the organization of Antifa compares to some of the other terror groups that you've interacted with as a prosecutor.
- [37:59]
LT Edwards
Yeah, so before I answer that, two quick things just to jump on what Tom was saying, because I think it's a really good point. These downstream consequences of ill defined, kind of vague parameters around a threat prioritization can run a real risk, both impacting the law enforcement, intelligence agencies that are investigating and the prosecutors who charge cases. Right. One risk is the direction from Attorney General Bondi to have some intelligence Reports created and analysts creating reports on this antifa movement or activity around the country. Right. The risk there is that now that's going to water down the broader public's opinion of legitimate domestic extremism or domestic terrorism investigations. So what I mean by that is there are. Tom was saying this, right? There are legitimate domestic violence threats across the country, nihilistic violent extremism, racially motivated violent extremism. The FBI has historically characterized these kinds of threat matrices that occur in the United States and that we should be focused on to reduce the threat of violence to populations across America. When the Attorney General or an administration focuses loudly on one, it's not to say that prosecutors and investigators shouldn't investigate these others, but it's the only one that the country and the public will now hear about. And if. If it is ill defined and vague, then it might cause the public to lose confidence that we've got our eye on the right ball here. Right? And it might be worse. It might cause concerns that those ill defined, vague concepts now will bleed into everyday American life. And if the power holders are not responsible, then we have reason to be alarmed as a public, as opposed to be comforted that law enforcement agencies are looking at the right targets. So. So that's a concern. Another concern which I think is relevant to this case is if intelligence agencies start to collect domestic information, right? This is a topic that's been in the news in the last few weeks. If they start to collect information, what information are they collecting? How are they collecting it? How are they organizing it, structuring it? When they start to define membership in the groups they care about, we should be concerned by that, just as that's kind of fundamental to our American history, right? Is these civil liberties. And we care deeply about individualism, but we should be concerned even in cases like this, where I. And I don't want to cause alarm. I'm not sure what's going on, but the government, in seeking to make this case complex, specifically articulated a need to potentially deal with classified information in the Classified Information Procedures act and that they may need to set deadlines for that. So the question in my mind, as a member of the public not knowing much more, is what classified information is at issue in a case like this, where a group of folks have done this thing at Prairieland with fireworks and firearms and potentially shooting, but no indication from me, you know, in my mind, at least from an outsider, that there are these foreign nexus or an obvious connection to classified information. Again, could be harmless, could be just that. That was A something that prosecutors needed to front for the judge in case it happens in the case. But it was unclear to me how that was related. And that is a potential downstream consequence of having these ill defined parameters around domestic organizations. Okay, now let me answer your, your actual question. One is how does Antifa relate to other groups I've interacted with, know, investigated. That's a hard question. And the reason I think it's hard is because a lot of the groups I investigated and charged membership or activity with it were foreign terrorist organizations, which is different in category. Right. And those foreign terrorist organizations included, you know, the Islamic Revolutionary Guard Corps in Iran, isis. You know, I was investigating somewhat hierarchical entities that had struck strict membership. It had leadership factions. I mean, you talk about the IRGC in Iran, right? It's a faction of the Iranian government. It has offices, it has tiered leadership structures. It is beyond just a thought process, but it is in fact an actual group of folks we have designated to be terrorist organizations that are hell bent on harming American interests and allied interests. That's an unfair comparison because what seemed the White House seems to have done here with Antifa is talk about in a domestic terrorism context. And you know, I sense that Tom is touching on something that's really important here, that it is really hard for any policymaker to navigate domestic groups. And it ought to be hard because it's so closely impacts domestic surveillance and a number of statutes and investigation techniques that are then triggered if you start to designate groups a domestic terrorism threat. And so you would hope that our policymakers and our leadership is thinking very carefully about how to characterize these groups and how to allay civil liberties concerns that are legitimate. And it does not seem that that kind of concern played out by leadership decisions. When that was issued. Those, those policy memoranda were issued just
- [43:23]
Tom Brzozowski
to pick up real quick on one, one thing with regard to the Antifa piece before we kind of pivot back to the how this is playing out in this case. And I think it's worth noting first I indicated that in my view just haven't been privy to a lot of the intel reports that were generated over the years. I'm not an analyst myself, but you know, Antifa is more of a politics. We've established that a little bit. That, that being said, though it should be noted, and I think it's appropriate to note that there are and have been a number of smaller networks loosely connected that could be construed as anarchist collectives, if you will, that have done a fair amount of violence Especially if you might recall 2020, a lot of the riots and protests that occurred post George Floyd's murder in and around the Seattle area, Portland area. There was a, you know, there was a period of time when there was, you know, recurrent violence being directed towards the federal courthouse over many weeks by individuals that were dressed in black that, that broadly, you know, could be, you know, were broadly determined to be sort of members of anarchist collectives, if you will. And I think that there's a danger that folks sort of conflate that with, with antifa. There's a little overlap in terms of like shared, no, a shared tactical set, you know, shared tactics that they typically engage in. But again, the broader point is that even though they, you know, these individuals may at some general level subscribe to the same philosophy, that is no way makes them in any way, man shape or manner connected. And so that's just something to understand is like on the one hand, you know, I fear sometimes that when we spend so much time saying antifa is not a thing, it's just an idea, the rejoinder to that is, well, what do you call, what about all these guys over here that are doing X, Y and Z? And that is true. However, there's no synergy there. There's no connection there. There's no command and control, there's no hierarchy, there's no leadership, et cetera, et cetera. And then moreover, one last point we're going to turn it back to you is that, you know, we spent a lot of time talking about the nature of the antifa threat. These strategic documents issued by the White House, including executive orders NSPM 7, these, these top level memorandums being issued by the Attorney General, all concerning antifa and antifa adjacent activity. Yet, and here's the thing, yet when you look at congressional oversight committees, you know, where you've got sworn testimony by senior department officials, including the Director of the FBI recently and their actual statements for the record, that they generate ahead of these committees where they map out the threat as they see it at that given time. This is the Director of the FBI. You would expect to see some reference to antifa included in that document. And yet you do not. And so there's a dissonance there which is stark as you can possibly make it between what the individuals that are actually undertaking these investigations see and the rhetoric that is coming from senior policymakers in connection with this, with this perceived threat. And explain that. I don't know how you can, but that's always kind of struck me as being a Pretty stark dissonance between the two. And I think that speaks volumes.
- [46:39]
Peter Beck
Steven, could you walk us through some of the kind of individual allegations against these alleged Antiva members?
- [46:49]
Stephen Monticelli
Sure. So the main allegations that stemmed out of this July 4th protest turned violent incident are attempted murder, which is applied to multiple individuals and not just a single alleged shooter. We have the charges that you've already mentioned, materials ported terrorism, and those tend to be related to activities the government has alleged. People have either tried to move evidence. So in one instance, one of the individuals arrested at the protest had made a phone call, and the individual answered that call, went to their home and moved a box of zines. Literature which the government considered evidence in this case. And that individual was charged with, you know, potential evidence tampering. There were individuals who have been charged with helping the alleged shooter, Benjamin Tsong, evade arrest, transporting him to the Dallas area and harboring him. There have been individuals who have been charged for things that stemmed out of interactions that occurred after FBI raids or raids by federal officials. In one instance, an individual that had his home raided and his devices confiscated went to the home of a friend who was also a member of the Socialist Rifle association. And the individual they approached went on to signal and removed the person who had been arrested and their home was raided from some signal group chats. And the government has interpreted that as potentially tampering with evidence, trying to delete evidence. Even though I don't believe the allegation is actually that messages were deleted, simply that an individual who was known to have had their devices confiscated was removed from groups. And, you know, that was in, you know, the defendant has argued that that was a procedure for if anybody had their access to their phone compromised, that's something that they would have done. So, you know, those are sort of the range of activities. We've also had individuals be accused of helping plan this alleged ambush. Benjamin Tsong is alleged to have provided weapons to other individuals. Multiple weapons that he was found to be the owner of were recovered at the scene. But I should also note that I think the majority of the weapons that were recovered were either in backpacks, disassembled, or had even been found in cars and were not necessarily in the hands of the individuals ready to be fired. So, you know, there's, there's a range of activities, roles, alleged roles in this alleged ambush that the government has, you know, sought to charge individuals. And in, in several of these instances, as, as we've mentioned, folks have taken guilty pleas and you know, have, have taken guilty plea for the material Support to terrorism charges. Some of them are reportedly going to testify against the alleged shooter. Two of them described, I believe it was two described him, his role as either to intimidate police officers or to, you know, sort of keep watch for police officers. But the government has construed that and other messages from these signal group chats as an indication that the individual actually intended to commit violence. The defense has put forward a theory that basically alleges, you know, that argues that Benjamin Song, the alleged shooter, was seeking to defend another protester who was running away after the police officer arrived on the scene, drew his weapon. Whether that's convincing, I won't be able to say. But that's kind of the long and short of what the government is looking at and what they believe these individuals have done.
- [50:34]
Peter Beck
So to draw it out a little bit, the government thinks that that group of people went to the Prairieland Detention center in order to attack a government building, basically to be disruptive, as disruptive as possible. While the defense says that it was a protest. Could you. Could you talk a little bit more about those two arguments?
- [50:56]
Stephen Monticelli
So the government, early on in press releases and in the indictments, has described this as a planned attack, an alleged ambush, and has argued intent to commit terrorist activity here and that these individuals were intending to commit violence and that they all knew that this could happen or would happen. The defense has argued that is not the case. Most of the defense lawyers are making arguments that essentially say the majority of the defendants were unaware of any intention to commit violence, that they believe that they were simply going to commit a noise demonstration, which perhaps could have been described as a form of criminal mischief, but not violence. And, you know, they. The defense has brought up, you know, the fact that two unarmed federal officers came out of the building, interacted with some of these individuals, and were not harmed as a part of that argument. And one defendant who was nearby in her car, but not actually present for any of the events that actually panned out and the violence that occurred has also been charged. So there's basically a criminal conspiracy argument here that the federal government is making. And the defense is alleging that if anyone had an intention of violence, it was only one of them. And a couple defense attorneys have even made public statements to the press, effectively singling out the alleged shooter as having their own agenda.
- [52:35]
Peter Beck
So. Lt, I'll start with you, but Tom, you're welcome to jump in as well. Why is this case so different? You know, 2339 is a pretty broad statute the government has prosecuted. I'm thinking of one case that's also from Texas, I believe, of a man who allegedly did graphic design for isis. And the government says that that was an instance of material support to provide terrorism. What about this case makes it so different from you for you? Yeah.
- [53:04]
LT Edwards
So I'll caveat this with. I tried to pour through the docket to kind of get a better sense of the government's case, and there actually was not a ton of pretrial litigation. There was not a lot of heavily motioned, you know, written out motions to suppress, motions for pretrial detention, pretrial motions to dismiss, you know, for any kind of 12B motions. Normally, those areas would be places that we, the public, could learn. All right, here's the government's theory. You know, here's the weaknesses, the defense perspective. It moved pretty quickly, and there was not a ton of that. And so anything I say here is a little bit caveated that I've tried to glean it from some arguments that the government's making and what we do have and in the speaking indictment. But what makes this case different, I think, is just the lower amount of planning and violence that occurred. And again, that's not to diminish the violence that did occur. But here's what I mean by that. The planning. When I open the indictment to and see and, you know, a topic that we could have another podcast on is this rioting charge under 18 USC 2101, which is the lead charge, and the number of First Amendment problems that some courts have flagged with that statute. When I saw that the interstate rioting and the material support to terrorists, I anticipated to see a lot of evidence about intent. And so maybe we should take one moment to say what the government's allegation is for this material support charge. The material support charge is that these defendants provided material support knowing or intending that that support would be used to facilitate one of three statutes that the government has listed out. One is 844F, which is maliciously damaging government property with an explosive device. One is providing material support, knowing it would be used to support damage to government property. 18 USC 1361. And the third is support to aid in an attempt or actual killing of a federal Law Enforcement Officer. 18 U.S.C. 1114. And in reading through the jury instruction debates, they seem to have landed on the right outcome, which is the jury has to agree that the material support was intended to support one of those. They have to be unanimous as to one, but they don't have to be unanimous as to all, meaning they don't have to find the government, prove the support was all three, as long as one of those is met. And what's really interesting to me is, as I read through the indictment, what makes this different is I anticipated seeing a lot of planning to support those three crimes. We aim to damage this property. We're going to tear down this facility. We are going to shoot officers in our way. We are going to wreak havoc and damage across this federal center because, and this is the terrorism part, later at sentencing, should they get guilty convictions, we wanted to intimidate, coerce, or retaliate for government action and change government policy. I anticipated seeing commentary like that in the speaking indictment. I didn't see that. What I saw was some concerning statements regarding bringing firearms and making sure we have somebody with a rifle to intimidate law enforcement officers to not stop us from our noise protest. But I did not see statements about even causing intentional damage. I mean, I think that there were statements about the graffiti. And so that lack of evidence of planning ahead of time will, I think, be a weakness for the government unless there's more. Right. This is just from the indictment, but it'll be a weakness for the government to prove the intent that I intended to provide material support myself, my supplies, my training to do these things intentionally. And the second difference is the violence, what happened was no doubt extreme and a violation of law. Someone shot at an officer. There are charges for that, and that person could have been charged for that, both federally and locally. To charge material support to commit that crime, I think is going to require a lot more from the. A lot from the government to show that there was this intent while they were carrying out their provision of material support or the intent of others to help Benjamin Song shoot that officer. And I did not see a lot of that in the speaking indictments. And so I think there's some weaknesses there the government has to catch up on at trial.
- [57:33]
Tom Brzozowski
I would obviously echo everything that. LT had to say, for sure. But at a broader kind of more basic level, I think there are a couple things that concern me with this particular case. And first, it's kind of a showcase for the power and reach of this particular statute. I mean, if you couple it, and as LT rightly noted, there is a world in which you may have charged it this way that you can conspire to actually provide material support to, you know, I mean, you can back up by a bunch of ticks activity before it even gets to some sort of actual kinetic endpoint. So there's that. And then when you Couple that with some of the predicates that are in play here, specifically 1361, you know, damaging a government facility. What does that mean? Like, what are we talking about here? Like, what does that damage have to look like? It's a powerful statute and it can reach a lot of activity. That's number one, because it's so powerful. All those institutional guardrails and oversight mechanisms that I noted earlier that were cabin like, were enshrined in the Justice Manual provisions, that requirement to come to main justice to get that charge looked at, to get it approved before it's deployed in the field by a U.S. attorney or an Assistant U.S. attorney, that they're there for a reason. It's because the statute is so powerful. And when you remove that institutional, you know, those institutional elements and that, that oversight mechanism, you're going to get something less than the uniform and judicious application of that statute over time. And that in turn will ultimately possibly degrade the efficacy of the statute when you really need it, because it's. You're subjecting it to litigation risk. If you capriciously deploy it in circumstances where. I'm not suggesting that this case is inappropriate. I'm with LT on the fact that someone got shot. This is a legit case. However, the next case, when they kind of roll this thing out under circumstances that are a little specious, it could subject this statute to litigation risk and erode its efficacy over time because it has been deployed recently in connection with real legit domestic terrorism cases. That nihilistic violent extremism thing. Lt was talking about the DOJ charged one of the ringleaders of 7, 6, 4, which is one of these networks with, guess what, providing material support to terrorists, this very same charge as they should have. That's what it's built for. And then finally, I kind of think that this case, as important as it is, actually is not and shouldn't be viewed as some kind of bellwether for how the Department's going to move forward or how the administration's going to move forward to target antifa. It might, but I think you're missing the real fundamental issue, which is that the architecture that allows for a wide range of investigative activity targeting viewpoints associated with, again, anti Americanism, anti capitalism, anti Christianity. That's in place. So whatever the verdict is on this case, obviously it's important for the folks that are out there, but that's not going to change that superstructure that has already been erected. And then there's been all kinds of press just recently in terms of the information sharing environment in connection with this sprawling deployment of both JTTFS and Homeland Security and their homeland Security corollary and how they're sharing information, some of which might again implicate things like, as LT kind of hinted at, some national security tools that typically are not used in a domestic context. That's the real story and that is ongoing. That's not getting this case is not going to change any of that. So I would just caution that whereas this case certainly is important for all the reasons we've talked about today, the superstructure's already in place and the wheels are turning already.
- [61:35]
LT Edwards
And another part of that real story Tom's pointing out here is there is a lot of discussion in public forums about the need for a domestic terrorism statute. Do we need one? Don't we need one? Should we have one? I think what people should recognize, and it's something that I've talked about previously and while I was in the department, is the government has the tools available to charge and dissuade folks from committing violent acts under the lens of domestic terrorism. We're seeing it play out in this case, and whether rightly or wrongly we can discuss. But 2339A is a tool to stop folks who are hell bent to commit acts of what we call kind of publicly domestic terrorism, because 2339 A can be used to stop folks from supporting certain acts regardless of affiliation with a group, foreign or domestic. And so people ought to realize that when they see this trial play out, they should be thinking themselves, particularly people on the Hill. Oh, we may have that statute now, should we shrink it? Should we grow it? That's a question. But we have a domestic terrorism statute. It's just a statute that's not been used historically in that way.
- [62:43]
Peter Beck
So on that note, what will both of you be looking for as this trial unfolds? Tom, we can start with you.
- [62:49]
Tom Brzozowski
Yeah, of course. I just want to see what the government is able to put on, you know, in connection, and I'm not entirely sure the manner in which this would, would actually transpire. But now, do these defendants self identify as antifa? Like where, where are they getting that? Like, I, I'm just curious to see where they're, how and under what circumstances they cobble together this definition and how it relates to the actual, how the actual defendants understand or conceive of themselves. I mean, are they characterizing themselves like this and what have you? I mean, it's a small thing, but given this is the government's first crack at defining this cell as antifa. I'd certainly be interested in that component of it.
- [63:29]
LT Edwards
I'd be really interested in a couple things. One, how do these folks who pled guilty play into the government's case in chief? I went and grabbed their plea documents to read the statements of fact to see because when I read that at least five had pled guilty to the material support charge, I thought again, oh boy, there's the meat, right? They, they must be laying out that, you know, this was intended and there was a plan and they had talked about it for weeks. I didn't see it, you know, in the statement of facts for some of these cooperators. What was telling to me was including how the government described these cooperators in their witness list. A lot of them were going to testify about how they helped Benjamin Song after the fact. And something that we haven't Talked about here is 2339A also prohibits concealing or evading capture for and I don't remember the language off top of my head, but concealing the material support or the evidence of that material support for those acts. And so as a former national security prosecutor, I raise my eyebrows a little bit. You're, you're hanging your terrorism theory on a case that is that leadership is bragging about this first terrorism charge of its kind. For antifa on threads that kind of focus on the ex post conduct, not necessarily the defendants intending and knowing and planning to do this thing, but afterward then concealing this person or concealing the evidence and calling it terrorism, I would be skeptical to bring that case and at least I would be pushing hard for more evidence of the intent and the planning. And so there was one defendant, Nathan Brahman, and his was a little meatier and I would encourage the public to look at it. It's interesting. His did involve discussions about planning the day before or two days before. But when you look at the statement of facts, which again I think educates a little bit where the government's going to start to shift its case in chief. There are scratch outs and handwritings on the statement of facts. And that's not crazy, right, that defendants have to get through a Rule 11 colloquy and when they plead guilty, they hear the facts out loud. They can either panic or realize maybe it was worded differently and that's not true and they want to tell the truth under oath in that hearing. And so the parties in the court scratch it out and write what's true. What this defendant changed it to was anytime there was a reference in the statement of facts to knowing about the affiliation with Antifa and knowing about the firearms ahead of time. All of that was each time that was brought up, that was scratched out and written on top. Learned at the site on July 4, you know, learned that folks may have an affiliation with Antifa, learned that somebody might have a firearm. I think that's telling. They also scratched out a predicate for the 2339A. They scratched out the 844F use of an explosive to maliciously damaged government property and only left the 1361, which is the lighter charge of damage to government property. And so I as a outsider, I'm looking at that and I'm wondering if the defense may hone in on that as a roadmap to the government's case in chief, that if one of their cooperators who was on the ground floor, right, allegedly, you're going to tell the jury that this person was there. If that person can't even bring themselves to testify to facts about plain planning and preparation and intending to use the explosives to damage property, where the government might be pivoting here and start to focus its theory of its case to okay, look, it's just a plan to commit destruction of property 1361 and a lot of folks learned a lot of these facts on seeing July 4th. That's going to be a chance for the defense counsel to jump up and down and say, see? No plan, no intent for my client. And I'd like to see how that plays out.
- [67:18]
Peter Beck
That seems like a good place to stop. Thank you all so much. We'll continue to follow the North Texas antifa trial here at lawfair.
- [67:26]
LT Edwards
Thanks so much.
- [67:27]
Tom Brzozowski
Thank you. Appreciate it.
- [67:31]
Peter Beck
The lawfare Podcast is produced by the Lawfair Institute. If you want to support the show and listen ad free, you can become a LawFair material supporter@lawfaremedia.org support supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoy the podcast, please rate and review us wherever you listen. It really does help. And be sure to check out our other shows, including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. You can also find find all of our written work@lawfaremedia.org the podcast is edited by Jen Patya with audio engineering by Hazel Hoffman of Goat Rodeo. Our theme music is from Alibi Music and as always, thanks for listening.
- [68:32]
LT Edwards
Guys. It's no use putting it off. The best time for an underwear refresh
- [68:36]
Tom Brzozowski
is now Tommy John Underwear is designed for a perfect fit that stays put all day.
- [68:41]
LT Edwards
There's zero chafe, thanks to four times more stretch than competing brands and their
- [68:46]
Tom Brzozowski
innovative horizontal quickdraw Fly is a game changer.
- [68:49]
LT Edwards
With over 30 million pairs sold, there
- [68:51]
Tom Brzozowski
are thousands of men out there more comfortable than you. Don't settle for less. Go to tommyjohn.com today for 25% off your first order with code comfort. That's tommyjohn.com comfort Tommy John comfort perfected.