One of the odder sidelines of this weekend’s murderous vehicular attack in Charlottesville, which killed a young woman and injured at least 19 others, has been pointed media questioning of Trump-administration officials about terrorism. Attorney General Jeff Sessions was asked about it on ABC’s Good Morning America on Monday morning. Sunday, in appearances on NBC’s Meet the Press and ABC’s This Week, General H. R. McMaster, the White House national-security adviser, was pressed on the matter.
Let’s be clear: This line of inquiry is political, not legal.
As a legal matter, to question whether the attack qualifies as terrorism is akin to asking whether the sky is blue. A 20-year-old neo-Nazi, James Alex Field Jr., plowed a car into a crowd of opposition protesters, killing 32-year-old Heather Heyer. The act easily meets federal law’s definition of domestic terrorism. Codified in Section 2331(5) of the penal code, the concept includes:
activities that (A) involve acts dangerous to human life that are in violation of the criminal laws of the United States or of any State; (B) appear to be intended (i) to intimidate or coerce a civilian population; . . . and (C) occur primarily within the territorial jurisdiction of the United States.
You probably noticed that I used the word concept in explaining the federal criminal law’s take on domestic terrorism. I did not say crime. Domestic terrorism is not a federal criminal offense. Federal law reserves criminalization mainly for international terrorism — which involves the same kind of violent intimidation, but only when it transcends national borders or occurs outside our country.
Given the plethora of activity regulated and criminalized by federal law, the omission of domestic terrorism seems strange at first blush. But there are sound policy reasons for it.
Terrorism is often bound up with dissent against our country and our government’s policies. When this activity is driven by foreign forces, it often implicates the first responsibility of the federal government: to protect against alien threats to our national security.
Yet, when protest is internal, when it is engaged in by Americans against the government and other groups of Americans, it often involves constitutionally protected political speech and assembly. Moreover, our regard for the privacy interests of our fellow Americans — even those who have come to hold their own country in contempt — is considerably higher than it is for foreign actors, and that limits the degree of surveillance and other police intrusion we are willing to abide. After all, the Constitution is a guarantee of the inherent rights of Americans; it does not grant those rights, and therefore the government, in upholding the Constitution, does not get to pick and choose which Americans are protected.
When it comes to national security, then, we do not want the federal government investigating the constitutionally protected activities of Americans unless there are solid grounds to believe they are serving a foreign power (including a foreign or international terrorist organization). This is not just an airy theoretical position. There is a dark history of federal-government excess in investigations of sedition. Probes involving Communist penetration of our government and violent political radicalism in our streets have infamously resulted in domestic spying against innocent Americans who, however misguided their policy preferences may have been, were neither traitors nor insurrectionists.
We do not want the federal government investigating the constitutionally protected activities of Americans unless there are solid grounds to believe they are serving a foreign power.
Obviously, there is a line at which political protest crosses over into crime. The breach occurs when there is violence, or at least incitement to violence. Generally speaking, domestic acts of violent crime are the purview of the states, not the feds. To justify federal jurisdiction, there must be some overarching national interest — i.e., some area of responsibility the Constitution commits to the central government. So, we draw a sensible line here: The state governments are principally responsible for prosecuting violent acts in their territories, but the feds will intervene when the violence involves foreign powers or the use of weapons of mass destruction (which has manifest interstate ramifications).
So, why have a definition of “domestic terrorism” in federal criminal law if there are no such federal crimes? Because the definition, enacted in the Patriot Act following the 9/11 attacks, provides a solid jurisdictional basis for the FBI and other federal agencies to dedicate their highly capable resources to domestic-terrorism investigations, a significant benefit to the states. As noted above, there is no trigger for federal involvement unless crimes dangerous to human life have been committed; therefore, the definition may not legitimately be invoked to investigate peaceful dissenters. It also underscores how seriously our law takes terrorism in the post-9/11 era. For example, while making false statements to investigators has long been a crime, there is now an enhanced penalty if the offense involves terrorism — international or domestic.
Still, violent crime remains primarily a state responsibility. Field committed a heinous intentional homicide, a capital offense in Virginia. The attack resulted in vicious assaults on several others, also serious crimes. The Old Dominion, moreover, is among several states that added domestic-terrorism crimes to their penal codes following 9/11. Virginia’s terrorism provision is a potential death-penalty offense.
For prosecutors, the state crimes are the most straightforward to prove. They prescribe more than adequate punishments, and they do not require juries to wrestle with recondite federal jurisdictional elements — e.g., did the violence in question affect interstate commerce? Consequently, while the Justice Department should be offering Virginia all the assistance it can muster for a prosecution of Field (and any potential conspirators), it should content itself with this support role. Let the state prosecutors and police do the heavy lifting.
Here, alas, we run into the persistent problem of media narratives.
The Obama administration was ostentatiously active in controversial domestic-violence incidents. As with encounters between police and black men, there is much political freight in violence committed by racists during dueling protests by white supremacists (all of them morons, but most of them non-violent) and by left-wingers (many of them peaceful “social justice” activists, some of them violent “anti-fa” thugs).
Plainly, if the Trump Justice Department does not file charges in this case, leftists will claim it is not as committed to civil-rights enforcement as they credit the Obama Justice Department with being. That would be sadly ironic. Ms. Heyer, the racist’s murder victim, happens to have been white — a quirk of the fact that revulsion against racism unites Americans across racial lines. It was against the social-justice presumptions of the Obama Justice Department to enforce the civil-rights laws on behalf of white victims.
In any event, remember the repugnant intimations of racism at Attorney General Sessions’s confirmation hearing? Add to that President Trump’s weak initial statement about the Charlottesville violence — blaming “all sides” and failing to condemn by name the white supremacists who played an instigating and homicidal role. On Monday, the president wisely atoned for this error, slamming “the KKK, neo-Nazis, white supremacists and other hate groups that are repugnant to everything we hold dear as Americans.” Still, there will be pressure on the Justice Department to elbow Virginia prosecutors to the side, lest the Trump administration be seen as uncaring.
That explains why Sessions and McMaster were peppered with questions about terrorism this weekend. It is perfectly obvious that the automotive assault — a tactic jihadists have used for years — is a terrorist crime. The public does not grasp the state–federal division of responsibility between domestic and international terrorism. So, while legal considerations should lead the Trump Justice Department to defer to Virginia’s law-enforcers, it knows that doing so would feed a political narrative that the administration is reluctant to hold white supremacists to account.
There is an additional political dimension. The Left conflates the so-called alt-right (which is radical, racist, anti-Semitic, anti-American, totalitarian in orientation, and thus not remotely conservative) with the political Right. It would love to add terrorism to that indictment.
Terrorism is the right diagnosis for Field’s murderous act. But it is not the same thing as racism. Condemnable in its own right, racism can fuel terrorism, but it is a different abomination. Democrats and their media partners already smear conservatives with the alt-right’s bigotry. We should not tolerate that libel’s expansion to terrorism.