Joining President Trump in Kenosha yesterday was Attorney General Barr, who did not mince words about mounting an aggressive federal response to the violence roiling the country. The AG asserted that “radicals” are crossing state lines and “carrying out, planning a coordinated attack on law enforcement, on public property, and on private property. And that can’t be tolerated.”
It is thus worth making a few observations about the Travel Act.
The Travel Act is codified as a crime in the anti-racketeering chapter of the federal criminal code, specifically, in Section 1952. It has been a staple of organized crime cases since the 1980s. As a prosecutor, I charged it more times than I could hope to remember.
In essence, the Travel Act makes it a crime to travel across state lines, or otherwise to use facilities in interstate commerce (e.g., the U.S. mail and electronic communications devices), to commit acts of violence, or otherwise to promote “unlawful activity” (which Section 1952 broadly defines — a definition that explicitly includes arson and extortion). There is a broad range of penalties. If the offense involves carrying out violent activity, there is a potential 20-year prison sentence; if death results, a defendant can be sentenced to “any term of years or for life.”
The Travel Act is very attractive to federal prosecutors for three reasons.
First, most violent street crime is not federal — it is a state-law matter. But the Travel Act is a route to triggering federal jurisdiction. Consequently, it makes violent-crime conspiracies reachable by federal prosecution. Even a lot of crude gang activity has some plausible connection to interstate commerce (e.g., cocaine trafficking, even on a local, street-level scale, involves a substance that has been shipped in interstate and international commerce).
Second, the Travel Act concerns what’s known as a “predicate crime” or “predicate act of racketeering.” When prosecutors try to neutralize a criminal organization, the objective is to establish the existence of a racketeering enterprise (under RICO, the Racketeer Influenced and Corrupt Organizations Act of 1971). This requires proving a pattern of racketeering activity, which (by statute) means at least two predicate acts. Thus, a single Travel Act violation can get you halfway home. Plus, as a practical matter, many if not most Travel Act cases involve multiple instances of cross-border travel and/or uses of interstate facilities. The Travel Act is a rich vein of racketeering activity.
Third, Travel Act offenses tend to be compelling evidence that a racketeering enterprise exists. In organized crime cases, there are all sorts of conspiratorial arrangements. Some are highly formal (e.g., a corporation or other ostensibly legitimate association that is a front for criminal activity). Some are illegitimate but very regimented (e.g., a mafia family, which is a criminal business but has a formal structure). And, at the other end of the spectrum, there are conspiratorial endeavors that are very loosely organized in time and space. These, too, can qualify as RICO enterprises because the statutory definition is very broad: An enterprise is just an association in fact. When people are traveling across state lines to commit crimes, furtively communicating with or recruiting out-of-town participants, shipping supplies in interstate commerce, transferring funds electronically to back the venture — all of these things can form convincing proof that an enterprise exists. That is so even if its activities appear to be cobbled together ad hoc, without much in the way of prior connections or planning for future operations.
As I’ve observed a number of times, there is neither a legal basis nor a need to “designate” primarily domestic subversives, such as antifa, as terrorist organizations. It is completely appropriate to regard them as terrorist organizations. It makes perfect sense to make terrorism the theory and target of a prosecution (as I did in the Blind Sheikh case, before there was a formal designation process). But federal law’s designation procedure serves purposes that are only germane to foreign terrorist organizations.
By contrast, with domestic terrorism, it is much easier to establish jurisdiction and collect evidence. Therefore, the thing to focus on is the many criminal laws we have on the books that enable the government — and the Justice Department, in particular — to investigate and prosecute domestic terrorism.
The Travel Act is among the most significant of these laws. If I’m hearing AG Barr right, it’s about to get a workout — and that’s excellent news.