The Lawfare Podcast – Tom Brzozowski on Domestic Terrorism Investigations and Prosecutions

Episode Date: December 30, 2025
Host: Michael Feinberg (Senior Editor, Lawfare)
Guest: Tom Brzozowski (former head of domestic terrorism prosecutions at DOJ)

Episode Overview

This episode of The Lawfare Podcast focuses on the DOJ’s shifting approach to domestic terrorism, particularly in light of recent directives to investigate ANTIFA as a domestic terrorist organization. Host Michael Feinberg interviews Tom Brzozowski, who until recently led domestic terrorism prosecutions at the DOJ. Together, they discuss the implications of the Attorney General’s “Bondi Memo,” the anatomy of domestic terrorism investigations, the differences between ANTIFA and traditional terrorist organizations, risks of policy overreach, and lessons from history about government surveillance and civil liberties.

Key Discussion Points & Insights

1. ANTIFA as a Domestic Terrorist Organization

• Vagueness and the Paradox of “ANTIFA”
  • Brzozowski emphasizes that ANTIFA is not an organization with hierarchy or structure (“not in the sense of what we would typically assume when we’re talking about organizations like... Al Qaeda... Atomwaffen or the base... where there’s a clear command and control”).
  • The guest argues that the label is nebulous, potentially allowing authorities to project almost anything onto it, which is both technically accurate and fundamentally meaningless (02:33, 08:15).
  • Quote: “You can really sort of project anything you want onto that and technically be accurate because it's sort of a catch all for everything you want it to be, but it's actually nothing at the same time. So it's a bit of a paradox.” — Tom Brzozowski (02:33, repeated at 08:15)

2. Recent Policy Shifts: The “Bondi Memo” and Context

• What Led to the Bondi Memo:

  • A series of executive actions starting with an order to designate ANTIFA as a domestic terrorist organization.
  • Follow-on actions included National Security Presidential Memoranda (NSPM 7), public rhetoric, and roundtables that conflated ANTIFA with international threats—sometimes comparing it to groups as significant as Hamas (05:06–10:39).
  • Use of foreign terrorist organization (FTO) designations for loosely affiliated European groups, expanding the risk of applying “international” counterterrorism methods to domestic concerns.

• Operational Impact:

  • Designations allow law enforcement to potentially use powerful surveillance tools (e.g., FISA) for domestic cases if any link to an FTO is alleged, significantly broadening investigatory powers (14:46).
  • Quote: “Now all of a sudden the aperture is indeed opened. And now if you have an investigation... on an antifa individual... per the other guidance... agencies... can now onboard their authorities in that effort because that's what they've been tasked to do.” — Tom Brzozowski (15:52)

3. What the Bondi Memo Changes

• From Policy to Operational Order:
  • The Bondi Memo stands apart from previous, more rhetorical executive orders; it functions as an operational directive, telling agents precisely what to build and prioritize—namely, focusing on antifa-aligned extremism (18:36).
  • Institutes machinery around building secret lists, directing funding, tip lines, and specific grants for “antifa-related” work—without transparent, statutory criteria (18:36–23:37).
  • Quote: “It tells agents and analysts and grant makers, notably with specificity what to build and what to prioritize. And the effect of that is that it... translates into hitting people in real time very quickly.” — Tom Brzozowski (18:36)

4. Blurring Legal and Investigative Standards

• Predication and Guidelines:
  • FBI agents are not supposed to investigate purely based on First Amendment-protected activity; there must be predicate indicating a threat of violence.
  • The memo's structure and incentives, including tip lines and ambiguous “anti-fascist” criteria, risk eroding these safeguards in practice (22:06–28:17).
  • Quote: “This is the insidious work that operates over time to erode the integrity of an organization. Not like that in a wink, but over time. Because incentives dictate where the institutional inertia of an organization is going to go.” — Tom Brzozowski (28:17)

5. Systemic Effects: Incentives, Tip Lines, and Bureaucratic Pressure

• Organizational Incentives:
  • Field office leaders are evaluated and compensated based on how well they meet DOJ priorities, which now include antifa-aligned investigations.
  • These directives “roll downhill” and affect agents’ day-to-day focus, crowding out investigations into arguably more pressing violent threats (30:15–31:25).
  • Quote: “Those priorities roll downhill to the line personnel. So it's not just a matter of incentives, it's going to be a matter of direction.” — Michael Feinberg (30:15)

6. Mechanics of Investigation Escalation

• Low Bar for Opening Investigations:
  • The threshold for opening certain levels of investigations (e.g., “assessments” or “preliminary investigations”) is alarmingly low—a mere allegation or tip may suffice, particularly when statutes like 18 USC 2385 are invoked.
  • Even if an investigation goes nowhere, a record is created and persists in government databases, potentially impacting individuals' future opportunities (32:49–37:51).
  • Quote: “Even if that organization goes nowhere, it's closed in six months for lack of predication, the entity or the individual is still indexed in a secret government database... which sentinel is forever.” — Tom Brzozowski (37:06)

7. Consequences for Individuals and Civil Society

• Spillover to Private Sector and Society:

  • Banks, compliance officers, and tech platforms—seeking to avoid regulatory risk—may “over-rotate,” flagging or debanking people or groups based on vague antifa associations.
  • “Joe Smith” scenario: a mere tip leads to banking issues (SARs), social media deplatforming, and entry into opaque watchlists (38:05–40:57).
  • Quote: “You're going to over rotate and load that thing up. And so what you're effectively doing is you are debanking any individual or entity who might be engaged in whatever activity might be even tangentially aligned with... your interpretation of what antifa is. It's so Kafkaesque, it's bizarre.” — Tom Brzozowski (39:17)

• Protest and Law Enforcement Response:

  • Protesting ICE operations or other actions, even if lawful, could lead to an investigation under the new broad criteria (40:57–44:53).
  • Adding local and federal agencies into joint task forces (JTTFs) increases risk of overreach, especially when those agencies lack experience with First Amendment boundaries.

8. Resource Misallocation and Policy Dilution

• Diverting Focus:
  • With finite resources, prioritizing antifa pulls agents away from violent domestic or international threats, potentially increasing risk elsewhere (47:22–48:44).
  • Overuse of tools like FTO designations weakens their power for genuine international threats.

9. Historical Echoes and Warnings

• Reflections on the Church Committee:
  • Both guest and host reference the Church Committee and the dangers of unchecked surveillance in the 1970s, emphasizing how incentive structures, mission creep, and opaque directives are repeating themselves, risking civil liberties (52:40–53:53).
  • Quote: “If a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny and there would be no way to fight back. And that's we're inching in that direction, I fear.” — Senator Frank Church, quoted by Tom Brzozowski (53:23)

Notable Quotes & Memorable Moments

• “When you have such a vague, nebulous concept such as antifa, you can really sort of project anything you want onto that and technically be accurate because it's sort of a catch all... but it's actually nothing at the same time. So it's a bit of a paradox.”
  — Tom Brzozowski (02:33, 08:15)

• “Ambiguity is itself a policy tool.”
  — Tom Brzozowski (10:39)

• “In every other possible signal that's being sent to the workforce... is telling them in no uncertain terms what the new priorities are going to be, what the incentive structure is going to look like...”
  — Tom Brzozowski (23:53)

• “This flies in the face of all of that and would suggest, as I said before, an institutional realigning of kind of doing it, skirting the regulatory and statutory provisions that are enshrined in those documents...”
  — Tom Brzozowski (32:30)

• “History is rewriting itself here.”
  — Tom Brzozowski (48:44)

• “If a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny and there would be no way to fight back.”
  — Senator Frank Church, quoted by Tom Brzozowski (53:23)

Timestamps for Major Segments

| Timestamp | Segment / Topic | |---------------|--------------------------------------------------------------------------------------------------| | 02:33 | Brzozowski on the paradox of ANTIFA as a label | | 03:32–07:16 | Evolution of domestic terrorism investigations and background to the Bondi memo | | 08:15–10:39 | (Mis)characterization of ANTIFA as a terrorist organization | | 14:46–18:14 | FISA and the implications of FTO designations | | 18:36–23:53 | What operationally changes with the Bondi Memo | | 28:17–31:42 | How incentives and DOJ priorities affect daily practice | | 32:49–37:51 | Low thresholds for opening investigations and the consequences for affected individuals | | 38:05–40:57 | How private sector compliance processes are impacted—and “debanking” risks | | 40:57–44:53 | JTTFs, local law enforcement, and the risk to protestors | | 47:22–48:44 | Impact of resource reallocation and agency focus | | 52:40–53:53 | Lessons from the Church Committee and warnings from history |

Tone and Takeaways

The tone throughout is serious, foreboding, and steeped in concern for civil liberties and institutional integrity. Both speakers repeatedly warn of the dangers in allowing ill-defined labels and executive priorities to drive sweeping changes to investigative practice—changes historically checked by law, policy, and the bitter lessons of government overreach.

The episode’s central message: Policy ambiguity and operational directives like the Bondi Memo risk turning broad swathes of legitimate political activity into targets of federal investigation, undermining constitutional protections, misallocating scarce resources, and recreating historical patterns of dangerous government surveillance.