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Speaker 1: As media. Hey everyone, it's James here. We promised that

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Speaker 1: we would get you something on the changes or lack

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Speaker 1: thereof after Donald Trump's series of executive orders targeting certain groups,

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Speaker 1: and we reached out to a lawyer, Moe, who is

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Speaker 1: a fantastic lawyer, and we asked her into you them.

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Speaker 1: They said they had just done an interview with Final

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Speaker 1: Store Radio, which is an excellent show, and they suggested

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Speaker 1: that I take listen to that. I took listen to that,

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Speaker 1: and I think it's a fantastic interview and I don't

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Speaker 1: think as much as that we can add to it.

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Speaker 1: So we're going to re air that interview in full.

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Speaker 1: The one thing I would add to it is that

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Speaker 1: there have been a number of cases recently where grand

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Speaker 1: juries have not returned an indictment. That's relatively rare, but

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Speaker 1: we are seeing that more frequently, and that just enforces

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Speaker 1: everything that Moe says here, which is that at this

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Speaker 1: time we still have sep of powers, and at this

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Speaker 1: time the executive cannot simply make law. One still has

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Speaker 1: to be prosecuted according to a statute by a district

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Speaker 1: attorney or a USA attorney. Right they president cannot just

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Speaker 1: make law in this instance pertaining to the First Amendment

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Speaker 1: by executive order, that doesn't mean that they will not

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Speaker 1: be harassment. And as you're here here, those two are

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Speaker 1: distinct things, and I think MO gives an excellent outline

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Speaker 1: on how we should think about and conceive this moment

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Speaker 1: in American history. So, without any more of me taking

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Speaker 1: your time, this is an excellent interview that bursted with MO.

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Speaker 1: I hope you enjoy it, and if you would like

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Speaker 1: to check out Final Store Radio, you can do so

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Speaker 1: using the link that I will put below this episode.

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Speaker 2: Could you please introduce yourself for the audience with any name, pronouns, location,

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Speaker 2: or other contexts that would help us understand who you are.

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Speaker 3: Good morning. I'm more a Meltzer Cohen. Everybody calls me MO.

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Speaker 3: My pronouns are they are MO. I'm an adultists and

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Speaker 3: educator and an attorney in New York. Primarily I represent

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Speaker 3: people who are arrested in the course of justice struggles

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Speaker 3: and do advocacy for incarcerated people and movements.

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Speaker 2: So we're here to talk about the recent White House

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Speaker 2: statements following the assassin I mean, I mean following the

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Speaker 2: reelection of Trump, but more recently the assassination of Charles Kirk,

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Speaker 2: that Antifa is a domestic terrorist organization.

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Speaker 4: Can you talk about what.

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Speaker 2: Legally changed with the executive order of September twenty second

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Speaker 2: of this year or yesterday? Is from when we're recording

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Speaker 2: this National Presidential Security Memo number seven titled Countering Domestic

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Speaker 2: Terrorism and Organized Political Violence. Again, it came out on

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Speaker 2: September twenty fifth. What changed with those Well.

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Speaker 3: Before I answer that question, the first thing I want

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Speaker 3: to say is nothing that I say on this program

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Speaker 3: is legal advice is in information. If you want legal advice,

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Speaker 3: I vigorously encourage you to have a privileged conversation with

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Speaker 3: a human attorney who is admitted to practice in your jurisdiction.

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Speaker 3: As to your overall question, what changed legally is essentially nothing.

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Speaker 3: I think the top level takeaway here is that these

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Speaker 3: executive orders are frightening. They are a frightening contribution to

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Speaker 3: an already dangerous political discourse, and they may very well

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Speaker 3: end up being quite disruptive to left movements, including I

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Speaker 3: think primarily centrist liberal movements. But nothing that was legal

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Speaker 3: last week is illegal this week, certainly not because of

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Speaker 3: those statements, and the state cannot prosecute you for things

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Speaker 3: that were legal when you did them. So yeah, I

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Speaker 3: mean I can't see the future, but as of right now,

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Speaker 3: the law and the constitution have So if this administration

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Speaker 3: wants to in any meaningful legal way designate anyone, any

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Speaker 3: group as domestic terrorists, they can change the law, which

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Speaker 3: is not going to be quick or easy, or they

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Speaker 3: can dispense with the law. But under the current legal regime,

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Speaker 3: there is no mechanism that would make it illegal to

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Speaker 3: be and to whatever that means, or to hold anti

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Speaker 3: fascist values, or to assemble or to petition the government.

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Speaker 3: And you know, to be clear, not that doing any

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Speaker 3: of those things or being any of those things are

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Speaker 3: necessarily effective at creating social change right now, but my

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Speaker 3: point really is they're not illegal.

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Speaker 2: Just to sort of throw this back your way, So

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Speaker 2: there was when you were responding to that, it made

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Speaker 2: me think of there's a veteran who lost a bunch

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Speaker 2: of his property during the Aleen hurricane that is about

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Speaker 2: a year ago hit this region. He was recorded, like

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Speaker 2: he went pretty viral, calling out and shouting down a

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Speaker 2: state politician who had a like public meeting here in

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Speaker 2: the area, just saying there's been like total like lack

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Speaker 2: of support after the storm, and here are all the

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Speaker 2: needs and you're just allowing politician this sort of thing.

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Speaker 2: The same man, right after the executive order that Trump

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Speaker 2: made about burning US flags, went out and burned one

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Speaker 2: across from the White House and then he got arrested

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Speaker 2: for it. Like, I thought that there was a Supreme

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Speaker 2: Court decision back in the eighties that said it's not

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Speaker 2: actually illegal to burn a flag. So does that make

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Speaker 2: his executive orders now law?

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Speaker 3: No, there is a Supreme Court decision. It's called Texas d. Johnson,

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Speaker 3: and it is still law. And in fact, after Texas d. Johnson,

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Speaker 3: Congress actually tried to make a federal statute criminalizing burning

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Speaker 3: the American flag and it was found unconstitutional. It is

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Speaker 3: astonishing and illuminating that that man was arrested for burning

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Speaker 3: an American flag, which is absolutely constitutionally protected conduct. I

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Speaker 3: will say, I'm not sure what he was actually charged with.

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Speaker 3: Right If he was charged with, you know, creating a

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Speaker 3: fire hazard, I suppose that, apart from the fact that

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Speaker 3: it's clearly First Amendment retaliation, I suppose that you could

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Speaker 3: be criminally charged with creating a fire hazard in a

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Speaker 3: public place or something like that, but no flag burning

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Speaker 3: remains protected regardless of what the President or Congress says

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Speaker 3: about it. It would take either an amendment to the

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Speaker 3: Constitution or a very serious change and Supreme Court jurisprudence

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Speaker 3: to make five burning illegal.

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Speaker 2: Okay, Yeah, so this is the distinction I'd love for

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Speaker 2: us to get back to in a moment between like

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Speaker 2: legality versus what, you know, the sort of like box

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Speaker 2: that that powers decide to put a thing into. Like

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Speaker 2: I know, I've I've definitely been detained not for being

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Speaker 2: an annoyance to the cops, but within my legal rights.

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Speaker 2: But they'll say, ah, but your shoes untied on a

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Speaker 2: Tuesday whatever, and then waste my time.

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Speaker 3: Let's talk about that, And because I do want to

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Speaker 3: talk with more specificity about these specific executive orders and

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Speaker 3: statements and also about what legal mechanisms do exist that

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Speaker 3: are and can be and have long been used to

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Speaker 3: surveil and disrupt and target the left. But actually, before

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Speaker 3: we do that, why don't we talk about sort of

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Speaker 3: some of the categories that are playing in playing here

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Speaker 3: and be really clear about definitions or at least understand

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Speaker 3: that there are differences between these categories, right, because there

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Speaker 3: is a difference between the law and political discourse. And

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Speaker 3: there is a difference importantly between law and power. And

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Speaker 3: there's certainly at least some daylight between the legal constraints

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Speaker 3: on state power and the state's power to ignore those constraints.

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Speaker 3: And then I think what will be significant to this

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Speaker 3: discussion is there is a significant difference between antifa, which

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Speaker 3: is a set of practices or beliefs that are not

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Speaker 3: necessarily even all that well defined, and what this administration

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Speaker 3: refers to when it uses or deploys the word antifa.

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Speaker 3: And there is yet more difference between the booking man

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Speaker 3: that is being invoked by that and the individuals and

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Speaker 3: organizations that the administration actually intends to target. There's a

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Speaker 3: difference between political targeting, surveillance, disruption, and prosecution, right, those

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Speaker 3: things are all different, And there's a difference between prosecution

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Speaker 3: and conviction. And there is an important difference between someone's

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Speaker 3: political beliefs and associations which are and remain protected by

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Speaker 3: the First Amendment, and politically motivated conduct that means illegal.

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Speaker 3: So you know, executive orders and these kinds of statements

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Speaker 3: on national security are policy statements. They don't in and

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Speaker 3: of themselves make things happen, they don't in and of

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Speaker 3: themselves change the law, and an executive order that is

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Speaker 3: inconsistent with the constitution or the existing law at least

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Speaker 3: ought to be unenforceable.

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Speaker 2: Okay, but yeah, but recognizing that that distinction, you know,

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Speaker 2: cops are going to cop, investigators are going to investigate,

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Speaker 2: and those processes are disruptive for people whose lives they're affecting.

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Speaker 2: They can affect your job prospects, they can affect your

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Speaker 2: housing stability, they can affect whether or not some unhinged

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Speaker 2: person decides to attack you because they've heard some conspiracy

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Speaker 2: theory about you. But so that distinction of like, well,

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Speaker 2: you might get exonerated by a court after you've been

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Speaker 2: held in pre trial for a year, I guess that

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Speaker 2: is an important distinction, right, because it means you're not

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Speaker 2: spending you know, an extra thirty years or twenty years

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Speaker 2: or whatever behind bars.

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Speaker 4: With the terrorism enhancement.

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Speaker 3: Well, I mean that is also called comfort. I'm really

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Speaker 3: not trying to be dismissive. I think it's important to

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Speaker 3: recognize what these distinctions are and the primarily because I

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Speaker 3: want people to understand what exactly we need to be

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Speaker 3: prepared for and what we need to be worried about

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Speaker 3: and what tools we have and what tools are effective

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Speaker 3: at resisting what's coming down the pike. And in order

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Speaker 3: to do that, we need to know what's coming down

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Speaker 3: the pipe. We need to know who actually has power

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Speaker 3: in this situation. The fact that an executive order doesn't

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Speaker 3: change the law does not mean an executive order will

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Speaker 3: not result in a lot more state repression, or that

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Speaker 3: it won't disrupt movements or even ruin lives. It doesn't

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Speaker 3: mean that Trump is not going to accomplish the thing

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Speaker 3: that I think he's actually trying to accomplish here in

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Speaker 3: the immediate short term, which is broadcasting to his base

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Speaker 3: that non state action against people identified as or perceived

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Speaker 3: to be part of the despised group you know is

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Speaker 3: desirable by this administration will be condoned by this administration.

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Speaker 3: I think that is important to recognize. Saying that it

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Speaker 3: doesn't change the law does not mean it isn't dangerous.

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Speaker 3: I just want to be very precise about I think

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Speaker 3: the ways in which it is likely to be dangerous

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Speaker 3: and some of the ways that it might not might

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Speaker 3: not be. And again I'm not trying to be dismissive

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Speaker 3: but state repression exists all the time. State repression against

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Speaker 3: leftists and anarchism in particular has been ongoing the whole time.

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Speaker 3: This is not a Trump thing. And in fact, I

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Speaker 3: think it's important to note that the executive who's probably

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Speaker 3: most responsible for having laid this groundwork is Biden, who

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Speaker 3: set forth a policy strategy that focused on funding the

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Speaker 3: federal targeting of what at that point he was calling

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Speaker 3: political extremists, which was a label that was being applied

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Speaker 3: to groups on the left as well as neo Nazis

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Speaker 3: and all right groups. So this administration has already been engaged,

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Speaker 3: and not just this administration, right, we have centuries at

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Speaker 3: this point of targeted disruption of left movements. The way

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Speaker 3: that it's currently being rationalized is a little bit different,

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Speaker 3: the way that it's being broadcast normalized is a little

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Speaker 3: bit different, but it's I will say, I don't think

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Speaker 3: this is actually anything all that new or different, And

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Speaker 3: the difference in how dangerous it is is one of

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Speaker 3: scale maybe rather than it's a difference in scope rather

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Speaker 3: than nature.

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Speaker 2: I think, yeah, I think that's an important distinction. I

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Speaker 2: think that like sometimes people in the center and even

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Speaker 2: sometimes people on the left, will look at in particular

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Speaker 2: things that Trump administrations do because they are obfuscatory, they're

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Speaker 2: like confusing, and they're bombastic, and there's a part of

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Speaker 2: us that that we'll say like, no, but that's that's

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Speaker 2: not what's actually happening. That's not what actually was the

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Speaker 2: motivation for that person or like that person voted you know,

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Speaker 2: Republican in the last election.

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Speaker 4: Whatever.

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Speaker 2: And so I think that that distinction that you're making

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Speaker 2: of you know this, this may not this may be

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Speaker 2: like an approach to motivate the base, it may prove

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Speaker 2: not to be legally like standing, but that doesn't mean

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Speaker 2: that it doesn't have an impact on people. Yeah, and

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Speaker 2: what we should be able to looking for out of

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Speaker 2: this is a projection of not only like a call

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Speaker 2: to action or red meat for the base or whatever,

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Speaker 2: but also like a clear proposition of that's meant to

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Speaker 2: chill us and chill some society, that these are the

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Speaker 2: intentions moving forward. This is the narrative, and this is

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Speaker 2: the story that they're going to be going with.

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Speaker 3: Right absolutely, And I think it is important to point

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Speaker 3: out right now we're seeing a lot of people pointing

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Speaker 3: out the hypocrisy and sort of the fact that these

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Speaker 3: rationales are really untethered from factual reality. And I suppose

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Speaker 3: that's true and important to note, but pointing out the

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Speaker 3: hypocrisy is not going to be particularly useful. I mean,

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Speaker 3: I think it's part of the point, right. Manipulating the facts,

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Speaker 3: making narrative claims that are totally unsupportable, and muddying the

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Speaker 3: waters in this really fundamental way is part of the project.

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Speaker 2: There was a German jurist I guess who became the

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Speaker 2: highest jurist during the Nazi regime in Germany, but continued

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Speaker 2: writing theory like was writing it before as a member

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Speaker 2: of the Conservative Revolution that they called it, and then

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Speaker 2: afterwards he survived the war and continued living in Germany

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Speaker 2: writing Karl Schmidt, who talks a lot about like the

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Speaker 2: limits of liberal approaches towards legality and liberal governance, with

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Speaker 2: a belief that it makes sense to push it to

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Speaker 2: its limits and beyond break it and recognize that governance

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Speaker 2: is about the imposition of power and the sheltering of

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Speaker 2: those who are under the controller or in the protected

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Speaker 2: community of the state, with a consideration of war through

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Speaker 2: the state's power against internal enemies as well as external enemies.

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Speaker 2: And this is the devil's bargain that we make. It's

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Speaker 2: like Hobbes on steroids. And it feels like a lot

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Speaker 2: of the stuff that the Heritage Foundation and Project twenty

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Speaker 2: twenty five has been pushing was that they have this.

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Speaker 2: I know that there are some theocrats in that movement.

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Speaker 2: There's the unitary executive theory that a lot of them

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Speaker 2: have been pushing, and they'll play with this idea like

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Speaker 2: the Trump administration will play with this identity of the

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Speaker 2: King King Trump or whatever the Dawn as it were,

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Speaker 2: like making these executive decisions and being unbeholden to anything else.

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Speaker 2: And they've actually been, like you know, saying to courts,

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Speaker 2: you can't stop us from deporting these peoples who with

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Speaker 2: unsafe third country whatever, stop us. I wonder if, like

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Speaker 2: I wonder if you have any comments on this, if

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Speaker 2: I'm coming out of left field or what.

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Speaker 3: Well, look, I'll say it is for Karl Schmidt as

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Speaker 3: opposed to the Heritage Foundation, he was at least intellectually honest. Yeah,

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Speaker 3: I think that.

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Speaker 5: We are in this moment where they're trying to normalize

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Speaker 5: what we Schmidt would have called like a state of exception,

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Speaker 5: where they're sort of unbridled executive power, the sort of

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Speaker 5: suspension of any constraints on state power.

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Speaker 3: Right. And it's funny because I've been in conversations over

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Speaker 3: the last months where and talking with a bunch of

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Speaker 3: my friends, none of them are particularly enamored of the

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Speaker 3: current legal regime, and we're talking about how dangerous it

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Speaker 3: is that the administration is dispensing with the rule of law,

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Speaker 3: you know, And it's sort of amusing for a bunch

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Speaker 3: of anarchists to be like, oh, no, the rule of

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Speaker 3: laws collapsing. But when I'm talking about the rule of

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Speaker 3: law in this way, I'm really talking about constraints on

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Speaker 3: state power, and those are what's collapsing. And that's exactly

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Speaker 3: what Schmidt envisioned and argued for Frankly, and I do

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Speaker 3: think we're seeing that. I think one of the things

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Speaker 3: that I've noticed in some of these eos, especially the

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Speaker 3: couple of statements from the last few days, is he

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Speaker 3: keeps talking about things like love of God and Christian

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Speaker 3: anti Christian sentiment, which is I mean, you know, this

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Speaker 3: is entirely incompatible with the First Amendment, which provides no

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Speaker 3: state shall establish our religion, right. I mean, we really

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Speaker 3: are outside the contours of recognized you know, legal norms,

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Speaker 3: constitutional norms, and I think a lot of this stuff

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Speaker 3: is functioning and is meant to normalize this kind of

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Speaker 3: discourse and to inject it not only into the exercise

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Speaker 3: of government power, but to normalize it in terms of

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Speaker 3: what people understand to be legitimate legal discourse.

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Speaker 2: Kind of shifting a bit like let's get into some

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Speaker 2: of the implications of this. So if it hasn't changed law,

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Speaker 2: but we recognize that practices and culture are being shifted.

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Speaker 2: I've heard of a bunch of people getting fired and

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Speaker 2: getting docxing attention. There's a website now I think called

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Speaker 2: like who Killed Charlie Kirk? The People who Killed Charlie

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Speaker 2: Kirk or something like that, and maybe an app. It's

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Speaker 2: kind of like the post Charlie Kirk assassination version of

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Speaker 2: Canary emission. Does this mean that police are coming after

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Speaker 2: people for sharing memes? Is that happening? Is that what's

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Speaker 2: happening in these cases?

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Speaker 3: I mean police have always been coming after people for

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Speaker 3: sharing memes. I would say I get calls at least

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Speaker 3: every month from people who have been visited by federal

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Speaker 3: agents because they said something on the Internet that was

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Speaker 3: upsetting to somebody else and then they reported it, and

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Speaker 3: the FBI is just following up on a tip. But

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Speaker 3: that said, this doesn't vitiate the First Amendment. Let me

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Speaker 3: say that in human language, thank you. This does not

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Speaker 3: undermine the First Amendment. The First Amendment still exists, and

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Speaker 3: all of the legal framework around having the right to

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Speaker 3: say things as long as those things are not true threats,

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Speaker 3: that still exists. So it is not unusual for people

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Speaker 3: to be targeted or monitored or visited by law enforcement,

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Speaker 3: but typically that stuff doesn't actually really go anywhere. I

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Speaker 3: am concerned about people being subject to doxing and having

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Speaker 3: negative social consequences and fallout from this kind of stuff,

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Speaker 3: and it certainly is you know, can be life ruining. Again,

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Speaker 3: I don't mean to trivialize the effects of this kind

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Speaker 3: of retaliation social retaliate, but it is not the same

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Speaker 3: thing as a criminal prosecution or a criminal conviction. It's

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Speaker 3: a different set of mechanisms. Now, one thing that I

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Speaker 3: do think is interesting is that these eos and the

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Speaker 3: statement that came out on the twenty second and yesterday

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Speaker 3: particularly identify certain modes of that kind of social conduct

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Speaker 3: that you're talking about, like doxing swatting rag, which is

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Speaker 3: making false report of like an ongoing violent crime, so

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Speaker 3: that a swap team shows up and raids somebody's.

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Speaker 2: Home, which can be deadly right, this is very.

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Speaker 3: Dangerous and interestingly to me anyway, there are these specific

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Speaker 3: behaviors that are identified and condemned in those statements, and

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Speaker 3: those specific behaviors are largely tools of the right. People

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Speaker 3: on the left are not notably interested in sending law

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Speaker 3: enforcement to someone's house. So there is a perverse way

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Speaker 3: in which this may end up being sort of protective,

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Speaker 3: I suppose, because I think it would be very difficult

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Speaker 3: for the government to go after the people who are

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Speaker 3: exposing ICE agents, which again is not illegal right now.

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Speaker 3: Even if it were to become illegal, it isn't right now,

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Speaker 3: and it would be very hard for them to go

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Speaker 3: after those folks and not also go after the folks

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Speaker 3: who are running that silly website about people who say

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Speaker 3: something mean about Charlie Kirk.

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Speaker 2: Yeah, I guess to me, And this is the speculation

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Speaker 2: outside of like legal advice or anything. Not that we're

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Speaker 2: giving legal advice, but outside of like the legal framework.

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Speaker 3: Definitely not giving legal advice.

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Speaker 2: I mean, it kind of points to a thing that

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Speaker 2: already this this hypocrisy or this difference between what it's

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Speaker 2: called when one party does it versus what it's called

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Speaker 2: when another party does it, like outside of the fact

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Speaker 2: that the government gets to do what it wants to

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Speaker 2: until the government stops itself from doing a thing. I mean,

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Speaker 2: it feels like it's a part of the creation of

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Speaker 2: a differentiated subjectivity. Like there's the subject of the state

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Speaker 2: that falls under the values that are being attacked Christianity, whiteness, heteronormativity,

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Speaker 2: these like patriotism in these certain ways versus the people

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Speaker 2: that are doing these same things but are corrupt, are dirty,

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Speaker 2: are outside our internal enemies, are Soros funded. However we

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Speaker 2: want to like yeah that, but yeah, I guess that's

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Speaker 2: not I mean, that's this is nothing new.

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Speaker 4: It's just an amplification of that same right.

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Speaker 3: Yeah, very much. And you know what is changing a

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Speaker 3: little bit, although all of these threads have been present,

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Speaker 3: is that this administration is rationalizing this particular kind of

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Speaker 3: targeting with respect to in particular Palestine solidarity movements, gender

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Speaker 3: nonconforming people and what they're calling anti buzz. So you know,

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Speaker 3: we're seeing we've been see congressional investigations, the allocation of

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Speaker 3: funds to federal law enforcement, purging not just individuals, but

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Speaker 3: whole agencies that the administration feels are insufficiently aligned with

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Speaker 3: its priority replacing federal law enforcement. That and I mean

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Speaker 3: ranging from FBI agents on the ground to doj with

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Speaker 3: people who will enthusiastically and blindly pursue these priorities, and

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Speaker 3: using a lot of resources to target the nonprofit text

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Speaker 3: status and funding of groups identified as being aligned with

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Speaker 3: any of the disfavored movements. And one of the things

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Speaker 3: that they're doing is kind of it's this real spaghetti,

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Speaker 3: you know, throwing everything at it, and it's very overwhelming.

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Speaker 3: It's overwhelming for movement infrastructure, it's overwhelming for legal for

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Speaker 3: people on the ground, and it's all happening at once,

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Speaker 3: and I think it's all being it's mutually compounding, it's

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Speaker 3: mutually reinforcing, it's demoralizing, and in particular, the stuff that's

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Speaker 3: happening with immigration is so devastating. And because immigration is

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Speaker 3: so wholly under the control of the executive that is

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Speaker 3: an area where he's able to sort of make a

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Speaker 3: policy and make it so and have it be carried

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Speaker 3: out by FIAT, and he has made his own private

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Speaker 3: army with ICE. And I think one of the effects

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Speaker 3: that I in just in my observation, that that has

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Speaker 3: had is that people see that happening and assume that

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Speaker 3: he has that level of control over everything else. And

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Speaker 3: I do want to point out again it's absolutely devastating

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Speaker 3: to see what's happening in the immigration space, but in

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Speaker 3: fact he does not have that level of control over

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Speaker 3: the rest of government and over non immigration laws, and

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Speaker 3: I think that's really important to remember.

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Speaker 2: Yeah, it seems about pushing boundaries and experimenting. There's a

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Speaker 2: lot of people that have talked and not to get

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Speaker 2: too far down the road with this, but like with

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Speaker 2: the like attempt to normalize sending national guard or sending

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Speaker 2: active military to different states, or federalizing national guards to

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Speaker 2: be present from different states in these places. Almost like

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Speaker 2: if it's constant and overlapping enough, then eventually just military

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Speaker 2: being on the streets, generally rousting houseless folks is going

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Speaker 2: to be a normal thing.

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Speaker 3: Man, I'm in New York. There's military people in all

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Speaker 3: sub price like that got very normalized post nine to

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Speaker 3: eleven in certain places, and so you know, again this

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Speaker 3: is not to say that it's okay, but it isn't new.

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Speaker 2: So take it back to antifa. Sure, Antifa, Antifa. How

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Speaker 2: is the administration identifying Antifa and the left and what

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Speaker 2: are they actually dismantling and attacking. I'm thinking, like, let's

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Speaker 2: talk about bilfunds or like lgbt QI, a youth advocacy

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Speaker 2: organization's secularist groups, like yeah, what's going on?

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Speaker 3: Yeah, well this is this is where things get really fun.

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Speaker 3: Most of the groups that are actually being targeted are

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Speaker 3: not remotely related to antifa. George Soros is not Antifa,

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Speaker 3: the various legal defense funds are not Antifa. Antifa is

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Speaker 3: the rationale, but not the reality. So one of the

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Speaker 3: interesting issues here is that a significant group of the

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Speaker 3: people who really need to be very worried are people

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Speaker 3: who work in the nonprofit sector, in extremely normal and

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Speaker 3: liberal community advocacy organizations and NGOs. And these are people

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Speaker 3: who have nothing whatsoever to do with Antifa, by any

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Speaker 3: stretch of the imagination, who are being attacked, whose funding

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Speaker 3: is being attacked, who are primarily I would say at risk,

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Speaker 3: not because they have engaged in anything approaching unlawful conduct.

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Speaker 3: And frankly, I think the biggest risk for many of

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Speaker 3: those people is the anticipatory compliance of their funders. We

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Speaker 3: have seen a really similar thing happen with universities, where

435
00:27:44,720 --> 00:27:47,800
Speaker 3: universities have been targeted by the state, by the federal

436
00:27:47,840 --> 00:27:52,280
Speaker 3: government and have been accused in particular of anti Semitism,

437
00:27:52,840 --> 00:27:55,439
Speaker 3: and frankly, I think it would be the work of

438
00:27:55,480 --> 00:28:00,000
Speaker 3: an afternoon for general counsel at any of these universes

439
00:28:00,040 --> 00:28:04,080
Speaker 3: cities to point out that in fact, there is a

440
00:28:04,680 --> 00:28:10,840
Speaker 3: legally established difference between anti Semitism and anti Zionism, that

441
00:28:11,000 --> 00:28:16,000
Speaker 3: criticism of the nation state of Israel is in fact

442
00:28:16,680 --> 00:28:22,199
Speaker 3: entirely legally distinct from criticism of or threats against Jewish people,

443
00:28:22,760 --> 00:28:28,480
Speaker 3: And if any of these universities actually bothered to challenge

444
00:28:29,119 --> 00:28:34,120
Speaker 3: these allegations, I think that they would win in court

445
00:28:34,400 --> 00:28:38,040
Speaker 3: on the law. And what we're seeing instead is the

446
00:28:38,240 --> 00:28:44,840
Speaker 3: universities declining to challenge these allegations, settling out of court,

447
00:28:45,200 --> 00:28:49,800
Speaker 3: paying large amounts of money to the allegedly aggrieved parties,

448
00:28:50,320 --> 00:28:59,120
Speaker 3: and capitulating in ways that are unnecessary, unwarranted, not legally justified, irrational,

449
00:28:59,600 --> 00:29:04,240
Speaker 3: and seed more ground, not just more ground than is

450
00:29:04,440 --> 00:29:08,640
Speaker 3: legally called for, but more ground than is even being

451
00:29:09,080 --> 00:29:13,560
Speaker 3: asked for in these cases. And so you know, this

452
00:29:13,760 --> 00:29:16,880
Speaker 3: is to me one of the great dangers of normalizing

453
00:29:16,920 --> 00:29:21,400
Speaker 3: these discourses is that these large institutions are engaged in

454
00:29:21,480 --> 00:29:26,960
Speaker 3: acts of self preservation that actually undermine civil society, when

455
00:29:27,440 --> 00:29:31,160
Speaker 3: even a small amount of courage would go a very

456
00:29:31,240 --> 00:29:32,560
Speaker 3: long way to preserving it.

457
00:29:33,000 --> 00:29:34,960
Speaker 2: I think we also sort of saw this in the

458
00:29:35,000 --> 00:29:38,080
Speaker 2: early days of the administration, with legal firms that had

459
00:29:38,120 --> 00:29:41,360
Speaker 2: brought challenges to the administration in the past backing down

460
00:29:41,960 --> 00:29:46,600
Speaker 2: or refusing to offering their fealty or whatever to the administration.

461
00:29:47,120 --> 00:29:49,280
Speaker 2: And we're seeing it now also with some of these

462
00:29:49,400 --> 00:29:54,200
Speaker 2: large media corporations silencing some of their pundits or whatever,

463
00:29:54,560 --> 00:29:56,640
Speaker 2: or in some cases, I mean it's clearly quid pro

464
00:29:56,760 --> 00:30:01,520
Speaker 2: quo because they've got, you know, a merger that's being

465
00:30:01,560 --> 00:30:04,280
Speaker 2: discussed by the FCC at the moment.

466
00:30:04,600 --> 00:30:07,240
Speaker 3: Well, what we've seen, though, we have seen a lot

467
00:30:07,280 --> 00:30:11,280
Speaker 3: of that sort of craven capitulation. But what we've also

468
00:30:11,320 --> 00:30:14,560
Speaker 3: seen is when we fight, we win. Now, I'm not

469
00:30:14,640 --> 00:30:17,440
Speaker 3: trying to be a Pollyanna about this. What I'm trying

470
00:30:17,480 --> 00:30:19,640
Speaker 3: to say is the demands that are being made by

471
00:30:19,720 --> 00:30:23,880
Speaker 3: this particular administration are actually so far beyond the pale

472
00:30:24,360 --> 00:30:27,280
Speaker 3: that based on our legal regime as it currently is,

473
00:30:27,520 --> 00:30:30,160
Speaker 3: when we fight, we win, and so I think it

474
00:30:30,240 --> 00:30:36,800
Speaker 3: is very worth reminding people that, however imperfect the law, is,

475
00:30:37,400 --> 00:30:41,080
Speaker 3: the current state of the law forbids much of what

476
00:30:41,200 --> 00:30:45,440
Speaker 3: this administration is doing, and it is actually worth standing

477
00:30:45,520 --> 00:30:48,800
Speaker 3: up to it. There are other groups of people similarly

478
00:30:48,880 --> 00:30:52,000
Speaker 3: who are not related to Antifa, and one of those

479
00:30:52,000 --> 00:30:57,160
Speaker 3: groups is coasters, like including boomers, who are on Facebook

480
00:30:57,160 --> 00:30:59,600
Speaker 3: and Twitter making jokes about how the right it's so

481
00:30:59,680 --> 00:31:03,680
Speaker 3: hip critical, and those people are getting targeted, and I

482
00:31:03,720 --> 00:31:06,760
Speaker 3: would just gently remind everyone that the First Amendment does

483
00:31:06,840 --> 00:31:09,880
Speaker 3: still exist and that the solution to repression is not

484
00:31:09,920 --> 00:31:14,479
Speaker 3: self censorship but courage. And also, as I have said

485
00:31:14,600 --> 00:31:19,000
Speaker 3: many times, including to you on this program, discretion is

486
00:31:19,000 --> 00:31:21,160
Speaker 3: the better part of valor, and not everything needs to

487
00:31:21,240 --> 00:31:23,880
Speaker 3: be said on the internet, So maybe think about it

488
00:31:24,040 --> 00:31:26,200
Speaker 3: before you post something that you would not like to

489
00:31:26,240 --> 00:31:29,280
Speaker 3: hear read back to you by a humorless prosecutor. Then

490
00:31:29,320 --> 00:31:31,600
Speaker 3: we have these other groups that are engaged in exposing

491
00:31:31,680 --> 00:31:34,280
Speaker 3: law enforcement, which I referred to a minute ago, and

492
00:31:34,360 --> 00:31:38,040
Speaker 3: I think the groups that are you know, exposing ice

493
00:31:38,400 --> 00:31:42,120
Speaker 3: are definitely going to be targeted have already been targeted

494
00:31:42,120 --> 00:31:44,800
Speaker 3: for that activity, but it sort of remains to be

495
00:31:44,880 --> 00:31:50,280
Speaker 3: seen how that can happen while also protecting Canary mission.

496
00:31:50,640 --> 00:31:54,440
Speaker 3: Right then, we have groups that are being perceived as

497
00:31:54,520 --> 00:31:57,680
Speaker 3: or identified as Antifa. Who are the people who are

498
00:31:57,720 --> 00:32:00,760
Speaker 3: like doing food not bombs and community gardening and cooperative

499
00:32:00,760 --> 00:32:04,560
Speaker 3: bookstores and prisoner letter writing, all of which are extremely

500
00:32:04,680 --> 00:32:08,320
Speaker 3: First Amendment protected activities and all of which are not

501
00:32:08,360 --> 00:32:12,320
Speaker 3: only likely to be highly surveiled, are already highly surveiled.

502
00:32:12,360 --> 00:32:14,160
Speaker 3: And this is the group of people who I think

503
00:32:14,200 --> 00:32:16,840
Speaker 3: are actually probably most used to this and best prepared

504
00:32:16,880 --> 00:32:19,680
Speaker 3: for it, and also might be really hard to prosecute

505
00:32:19,680 --> 00:32:25,080
Speaker 3: effectively because they're not doing crimes and you know, like

506
00:32:25,160 --> 00:32:28,000
Speaker 3: the NGOs that we were talking about. The biggest point

507
00:32:28,000 --> 00:32:30,280
Speaker 3: of exposure for all of these groups is likely to

508
00:32:30,320 --> 00:32:33,280
Speaker 3: be financial. We can certainly anticipate that the state is

509
00:32:33,560 --> 00:32:36,400
Speaker 3: highly interested in looking at all of our bank records,

510
00:32:36,480 --> 00:32:40,280
Speaker 3: to the extent that our bank records exist with all

511
00:32:40,280 --> 00:32:44,200
Speaker 3: the money we have, right Like, we're all handing around

512
00:32:44,240 --> 00:32:51,040
Speaker 3: the same staff of twenty singles to each other. But hey,

513
00:32:51,240 --> 00:32:54,840
Speaker 3: you know wirefraud. What I can say is that you know,

514
00:32:54,960 --> 00:32:58,080
Speaker 3: something like a bail fund, and you know, community support

515
00:32:58,120 --> 00:33:01,320
Speaker 3: funds do need to be very cautious. That has already

516
00:33:01,640 --> 00:33:04,800
Speaker 3: always been the case, and this is a really good

517
00:33:04,880 --> 00:33:08,080
Speaker 3: time to hire a CPA to go over your books

518
00:33:08,120 --> 00:33:10,960
Speaker 3: and to make sure that you have kept really meticulous records,

519
00:33:11,200 --> 00:33:14,720
Speaker 3: to make sure that if you have raised money for something,

520
00:33:15,080 --> 00:33:17,760
Speaker 3: you have only used it for the thing that you

521
00:33:17,800 --> 00:33:20,320
Speaker 3: said it was going to be used for. And this

522
00:33:20,360 --> 00:33:25,360
Speaker 3: is once again something that largely is a feature of

523
00:33:25,680 --> 00:33:28,479
Speaker 3: far right organizing. Right. I don't know if you remember,

524
00:33:28,520 --> 00:33:33,040
Speaker 3: but Steve Bannon was actually prosecuted for wire fraud because

525
00:33:33,080 --> 00:33:35,440
Speaker 3: he was raising money to do something.

526
00:33:35,200 --> 00:33:36,560
Speaker 4: Build the wall, Build the wall.

527
00:33:38,360 --> 00:33:40,719
Speaker 3: He was raising money to build the wall, but not

528
00:33:40,840 --> 00:33:43,320
Speaker 3: using it for that purpose, which is wirefraud. Right. So

529
00:33:43,360 --> 00:33:46,320
Speaker 3: if you run a bail fund, presumably you already know

530
00:33:47,000 --> 00:33:49,920
Speaker 3: that you have to be very careful about how you

531
00:33:50,000 --> 00:33:52,440
Speaker 3: raise that money and how you monitor and track and

532
00:33:52,560 --> 00:33:54,960
Speaker 3: use that money. So most of the people, I would say,

533
00:33:54,960 --> 00:33:57,600
Speaker 3: the overwhelming majority of people who are sort of going

534
00:33:57,640 --> 00:33:59,800
Speaker 3: to be subject to this kind of monitoring A have

535
00:33:59,840 --> 00:34:03,320
Speaker 3: already been subject to it, and b haven't actually done

536
00:34:03,320 --> 00:34:06,680
Speaker 3: anything unlawful. And you know that doesn't mean this won't

537
00:34:06,680 --> 00:34:09,920
Speaker 3: be disrupted. It just means, look, I'm not naive enough

538
00:34:09,960 --> 00:34:12,359
Speaker 3: to say that your innocence will protect you, but it's

539
00:34:12,400 --> 00:34:14,840
Speaker 3: a good start. And then we have folks who maybe

540
00:34:14,880 --> 00:34:19,279
Speaker 3: actually do engage in unlawful conduct or revolutionary action, or

541
00:34:19,560 --> 00:34:23,759
Speaker 3: people about whom that claim could somewhat credibly be made.

542
00:34:23,880 --> 00:34:27,000
Speaker 3: And that's actually just a different a different group, right,

543
00:34:27,160 --> 00:34:30,439
Speaker 3: And those things were illegal last week and they're illegal now,

544
00:34:30,520 --> 00:34:33,719
Speaker 3: and they're not more illegal because they're politically motivated. Right,

545
00:34:33,760 --> 00:34:37,400
Speaker 3: Although you know there are terrorism enhancements and sentencing enhancements

546
00:34:37,440 --> 00:34:40,239
Speaker 3: and things like that, the fact is, like, you know,

547
00:34:40,280 --> 00:34:44,040
Speaker 3: it can't be more illegal to spray paint Free Gaza

548
00:34:44,480 --> 00:34:46,880
Speaker 3: on the side of a building than it is to

549
00:34:47,040 --> 00:34:49,799
Speaker 3: spray paint I Love Trump on the side of a building. Right.

550
00:34:50,360 --> 00:34:52,759
Speaker 2: I mean, what whether or not this like pans out

551
00:34:52,760 --> 00:34:54,799
Speaker 2: in the courts, right is one thing. But I know

552
00:34:54,840 --> 00:34:57,279
Speaker 2: that like, say, for the library case that happened here

553
00:34:57,320 --> 00:35:00,880
Speaker 2: where people were arrested because some people were filming in

554
00:35:01,480 --> 00:35:07,719
Speaker 2: this like Palestine related workshop in a public library and

555
00:35:08,200 --> 00:35:11,240
Speaker 2: they were asked to stop filming and then a scuffle

556
00:35:11,280 --> 00:35:13,160
Speaker 2: broke out and a phone got knocked to the ground

557
00:35:13,160 --> 00:35:16,560
Speaker 2: and people got apparently dragged outside. Again, I was not

558
00:35:16,640 --> 00:35:19,960
Speaker 2: there for this, but like now the people are facing

559
00:35:20,120 --> 00:35:21,600
Speaker 2: like people who were in the crowd, who are not

560
00:35:21,640 --> 00:35:24,600
Speaker 2: the people who were filming or facing charges of ethnic intimidation.

561
00:35:25,239 --> 00:35:27,520
Speaker 2: That's a very specific case in a different jurisdiction from

562
00:35:27,560 --> 00:35:31,800
Speaker 2: where you are practicing law. But it's not just about

563
00:35:31,840 --> 00:35:35,080
Speaker 2: like what's being charged against them isn't about assault per se.

564
00:35:35,239 --> 00:35:41,200
Speaker 2: It's this enhanced, politically driven statement based on the rhetoric

565
00:35:41,320 --> 00:35:43,160
Speaker 2: that's based on the politics.

566
00:35:43,200 --> 00:35:46,319
Speaker 3: Right. Absolutely, And I'm glad you pointed that out because

567
00:35:46,480 --> 00:35:49,719
Speaker 3: I certainly do not want to suggest that politically motivated

568
00:35:50,000 --> 00:35:57,680
Speaker 3: prosecutions don't happen. They absolutely happen. These reset statements don't

569
00:35:58,120 --> 00:36:01,680
Speaker 3: change the way in which they happen, right, And there

570
00:36:01,760 --> 00:36:06,960
Speaker 3: are ways of targeting people for prosecution based on their politics,

571
00:36:07,360 --> 00:36:11,760
Speaker 3: and those have those are again not new. I think

572
00:36:11,560 --> 00:36:14,640
Speaker 3: the point that I'm trying to make is that I

573
00:36:14,719 --> 00:36:19,640
Speaker 3: don't think this has changed substantively. Yeah, like the fact

574
00:36:19,640 --> 00:36:24,320
Speaker 3: that the President said Antifa is a domestic terrorist organization

575
00:36:24,520 --> 00:36:28,040
Speaker 3: just doesn't really change the legal landscape. This has been

576
00:36:28,560 --> 00:36:32,320
Speaker 3: the targeted surveillance of the left, whether you call it Antifa,

577
00:36:32,400 --> 00:36:35,439
Speaker 3: whether it's the Green scare, whether it's the Black Liberation Army.

578
00:36:35,920 --> 00:36:39,719
Speaker 3: This has been a priority for decades of administrations. More

579
00:36:39,760 --> 00:36:43,400
Speaker 3: and more legislation has been developed to criminalize garden variety

580
00:36:43,440 --> 00:36:46,640
Speaker 3: protest conduct. We saw that a lot around Standing Rock

581
00:36:46,680 --> 00:36:50,840
Speaker 3: and BLM. More and more resources are allocated to testing

582
00:36:50,960 --> 00:36:56,240
Speaker 3: creative strategies for monitoring and criminalizing political activities. You know, again,

583
00:36:56,320 --> 00:36:58,400
Speaker 3: state repression and the tools that are used in the

584
00:36:58,440 --> 00:37:01,640
Speaker 3: service of state repression are just not new. And the

585
00:37:01,680 --> 00:37:04,840
Speaker 3: fact that you put out these statements is maybe a

586
00:37:04,880 --> 00:37:09,160
Speaker 3: good reminder that we should be circums fact and aware

587
00:37:09,200 --> 00:37:11,719
Speaker 3: of repression and prepared to bear up under it.

588
00:37:22,719 --> 00:37:26,320
Speaker 2: So is the RICO sixty one Atlanta case a model

589
00:37:26,440 --> 00:37:28,720
Speaker 2: for what we see moving forward at a federal level

590
00:37:29,080 --> 00:37:34,120
Speaker 2: in relation to these domestic terrorism charges conspiracy, racketeering, the

591
00:37:34,239 --> 00:37:38,680
Speaker 2: focus on bail funds, and other abolitionist infrastructure, civil liberties organizations.

592
00:37:38,920 --> 00:37:43,840
Speaker 2: Section H of that September twenty fifth statement refers to

593
00:37:43,880 --> 00:37:48,160
Speaker 2: the Attorney General pursuing quote, politically motivated terrorist acts such

594
00:37:48,160 --> 00:37:53,120
Speaker 2: as organizing docs and campaigns, swatting, rioting, looting, trespass, assault,

595
00:37:53,280 --> 00:37:57,640
Speaker 2: destruction of property, threats of violence, and civil disorder like

596
00:37:57,680 --> 00:37:59,480
Speaker 2: I know, those are all things that you know, they've

597
00:37:59,480 --> 00:38:02,839
Speaker 2: already got charges attached to them. It's just these are

598
00:38:02,880 --> 00:38:06,240
Speaker 2: now being framed within the framework of being terrorist acts.

599
00:38:07,000 --> 00:38:10,400
Speaker 2: But you know, you said, like these practices of attacking

600
00:38:10,440 --> 00:38:16,200
Speaker 2: adjacent like supportive movement and civil society organs. It's not

601
00:38:16,239 --> 00:38:18,920
Speaker 2: in and of itself new, but it seems like the framing,

602
00:38:19,040 --> 00:38:22,840
Speaker 2: especially with the Atlanta case, where the prosecutors brought up

603
00:38:22,880 --> 00:38:25,320
Speaker 2: at the beginning ernark like they gave a Merriam Webster

604
00:38:25,440 --> 00:38:29,399
Speaker 2: Dictionary definition of anarchism and then said, all these people

605
00:38:29,440 --> 00:38:32,040
Speaker 2: fall under this umbrella because they all have this ideology.

606
00:38:32,400 --> 00:38:36,160
Speaker 2: Therefore they are a conspiracy. Is that what the administration

607
00:38:36,360 --> 00:38:38,919
Speaker 2: is trying to do? And is that different from what

608
00:38:39,000 --> 00:38:40,600
Speaker 2: they've already done at a federal level.

609
00:38:41,080 --> 00:38:43,600
Speaker 3: So, first of all, I do think that that's very

610
00:38:43,719 --> 00:38:46,480
Speaker 3: likely that they will try. I think this is signaling

611
00:38:47,239 --> 00:38:50,359
Speaker 3: a real interest in that. I don't think that's particularly new,

612
00:38:50,440 --> 00:38:54,000
Speaker 3: but I think that it's clearly being prioritized. So let's

613
00:38:54,000 --> 00:39:00,239
Speaker 3: talk about RICO. RICO, let's talk about RIGO. Briefly, is

614
00:39:00,320 --> 00:39:05,000
Speaker 3: the Racketeer, Influenced and Corrupt Organizations Act, and it was

615
00:39:05,239 --> 00:39:09,520
Speaker 3: enacted in I think nineteen seventy to go after the mob. Right,

616
00:39:09,560 --> 00:39:12,719
Speaker 3: it was to go after crime families, but it's been

617
00:39:12,840 --> 00:39:17,520
Speaker 3: used against so called gangs and other politically motivated prosecutions

618
00:39:17,520 --> 00:39:20,239
Speaker 3: for a long time, and so RICO has really used

619
00:39:20,239 --> 00:39:24,239
Speaker 3: to kind of criminalize whole communities. But it requires that

620
00:39:24,320 --> 00:39:30,440
Speaker 3: an actual crime has happened. Right, association or ideology in

621
00:39:30,520 --> 00:39:34,080
Speaker 3: itself is not sufficient. So it requires an actual crime

622
00:39:34,080 --> 00:39:38,120
Speaker 3: has happened. And it also requires an quote an enterprise,

623
00:39:38,280 --> 00:39:42,560
Speaker 3: like a coordinated enterprise. And because the first Amendment for

624
00:39:42,680 --> 00:39:47,560
Speaker 3: text association and a large diffuse group of people sharing

625
00:39:47,680 --> 00:39:51,760
Speaker 3: values is not an enterprise, you know, I'm not sure.

626
00:39:52,680 --> 00:39:55,239
Speaker 3: It's not a straightforward path to say we want to

627
00:39:55,360 --> 00:39:58,600
Speaker 3: use rego in a politically motiv motivated way and to

628
00:39:58,719 --> 00:40:02,160
Speaker 3: actually be able to have I'm sure this group under

629
00:40:02,160 --> 00:40:05,839
Speaker 3: a net. Right. That's like, you know, saying we want

630
00:40:05,840 --> 00:40:08,920
Speaker 3: to go after Antifa is like saying we want to

631
00:40:08,920 --> 00:40:13,400
Speaker 3: go after people who like cats. Right, there are people

632
00:40:13,400 --> 00:40:17,799
Speaker 3: who like cats, but they certainly aren't coordinating together. I

633
00:40:17,800 --> 00:40:21,319
Speaker 3: suppose that there are actually people who would say, like, yes,

634
00:40:21,440 --> 00:40:25,439
Speaker 3: I identify strongly with this set of values, but it's

635
00:40:25,440 --> 00:40:29,239
Speaker 3: not a membership organization, and it would I think be

636
00:40:29,360 --> 00:40:33,560
Speaker 3: very difficult to mount a prosecution or to mount a

637
00:40:33,600 --> 00:40:37,839
Speaker 3: successful prosecution on the basis of what are clearly First

638
00:40:37,880 --> 00:40:41,640
Speaker 3: Amendment protected beliefs and associations. And there's pretty good law

639
00:40:41,640 --> 00:40:45,440
Speaker 3: on this point, actually, and it comes from an effort

640
00:40:45,520 --> 00:40:50,600
Speaker 3: to prosecute a bunch of anti abortion protesters under RICO

641
00:40:51,080 --> 00:40:53,239
Speaker 3: and the court said you can't do that. The fact

642
00:40:53,280 --> 00:40:55,360
Speaker 3: that there's a large group of people who happen to

643
00:40:55,360 --> 00:40:57,200
Speaker 3: believe the same things does not mean that they are

644
00:40:57,680 --> 00:41:01,399
Speaker 3: an enterprise. So look, get me wrong again, this would

645
00:41:01,400 --> 00:41:04,960
Speaker 3: be hugely disruptive, but it would be very difficult to

646
00:41:04,960 --> 00:41:08,239
Speaker 3: sustain an effective prosecution or obtain a conviction if there

647
00:41:08,320 --> 00:41:13,000
Speaker 3: was one competent investigator, prosecutor judge or jury member anywhere

648
00:41:13,040 --> 00:41:17,719
Speaker 3: along the way. But yes, hugely disruptive if if they

649
00:41:17,760 --> 00:41:21,120
Speaker 3: managed to do it. I would like to note something

650
00:41:21,120 --> 00:41:25,000
Speaker 3: about the stop coup City Rico. That's important. So first

651
00:41:25,040 --> 00:41:29,920
Speaker 3: of all, yay, those all those charges, those ricos were

652
00:41:29,960 --> 00:41:34,000
Speaker 3: dismissed for legal reasons of being utter bolts. And I

653
00:41:34,080 --> 00:41:37,480
Speaker 3: know that you know there's some concern that that will

654
00:41:37,520 --> 00:41:41,160
Speaker 3: be appealed, but I think it is worth noting and

655
00:41:41,200 --> 00:41:44,160
Speaker 3: celebrating that when we fight, we win. But sort of

656
00:41:44,160 --> 00:41:46,680
Speaker 3: more to the point in this context, I do want

657
00:41:46,680 --> 00:41:49,799
Speaker 3: to note that Georgia's RIGO statute is different from the

658
00:41:49,840 --> 00:41:52,840
Speaker 3: federal reco statute, and it's actually even worse than the

659
00:41:52,880 --> 00:41:56,640
Speaker 3: federal RICO statute, and it still couldn't be effectively used

660
00:41:56,640 --> 00:42:00,120
Speaker 3: in this way. And also federal RICO has often failed.

661
00:42:00,520 --> 00:42:03,880
Speaker 3: Right efforts to use federal RICO in a politically motivated

662
00:42:03,920 --> 00:42:06,320
Speaker 3: way have also failed. So if you look up like

663
00:42:06,360 --> 00:42:09,120
Speaker 3: the Ohio seven, which was a fairly early effort to

664
00:42:09,160 --> 00:42:12,120
Speaker 3: bring a politically motivated RICO that did not go great

665
00:42:12,120 --> 00:42:15,200
Speaker 3: for the government. So yeah, I think that's important to

666
00:42:15,239 --> 00:42:16,000
Speaker 3: note about RICO.

667
00:42:16,360 --> 00:42:21,279
Speaker 2: So you mentioned this like FBI designation earlier, it had

668
00:42:21,360 --> 00:42:24,400
Speaker 2: been for a while. I think under I thought this

669
00:42:24,480 --> 00:42:27,719
Speaker 2: came up under Obama, but maybe it came up under

670
00:42:27,719 --> 00:42:31,520
Speaker 2: Biden for the prosecution of January sixth. But anti government extremists,

671
00:42:31,600 --> 00:42:36,240
Speaker 2: which included militia movements and also anarchists, it's been shifted

672
00:42:36,280 --> 00:42:39,760
Speaker 2: to far left extremists in the verbiage of the DOJ

673
00:42:39,960 --> 00:42:44,040
Speaker 2: and who they're pursuing. Anti law enforcement and anti conservative

674
00:42:44,560 --> 00:42:48,960
Speaker 2: attacks have been framed as you know, of considered effort

675
00:42:49,080 --> 00:42:54,279
Speaker 2: by far left extremists in the media, and also like

676
00:42:54,400 --> 00:42:57,879
Speaker 2: by these institutions as they're you know, moving forward before

677
00:42:57,920 --> 00:42:59,600
Speaker 2: they actually make any arrests or whatever, and through their

678
00:42:59,600 --> 00:43:03,480
Speaker 2: prossecutution sometimes using terms like you know, antifa or trantifa

679
00:43:03,640 --> 00:43:07,440
Speaker 2: or whatever sort of motivations they're giving. I also wonder

680
00:43:07,440 --> 00:43:10,640
Speaker 2: if you could say a thing specifically about this sort

681
00:43:10,680 --> 00:43:13,040
Speaker 2: of framing that is being given.

682
00:43:13,560 --> 00:43:15,920
Speaker 4: Again, that is like.

683
00:43:15,200 --> 00:43:19,439
Speaker 2: Like I was thinking about this before more recent mass

684
00:43:19,440 --> 00:43:23,760
Speaker 2: shooting events that have happened, or before the hullabaloo around

685
00:43:24,120 --> 00:43:28,719
Speaker 2: Charlie Kirk's assassination and the shooter the alleged shooters relationships

686
00:43:28,719 --> 00:43:31,680
Speaker 2: to other people, that there seems to be this concidered

687
00:43:31,719 --> 00:43:38,520
Speaker 2: effort around clinically framing and politically framing transness as a

688
00:43:38,560 --> 00:43:42,960
Speaker 2: mental health issue but also as a political extension of

689
00:43:43,040 --> 00:43:47,640
Speaker 2: woke gender ideology that's coming for your children. And it's like,

690
00:43:47,680 --> 00:43:50,839
Speaker 2: it's it's interesting because like, in order for people in

691
00:43:50,840 --> 00:43:52,960
Speaker 2: a lot of cases in the US to be able

692
00:43:52,960 --> 00:43:57,279
Speaker 2: to gain access to medical care that they desire or

693
00:43:57,360 --> 00:44:01,799
Speaker 2: need around maybe gender dysorio or some some other experience,

694
00:44:02,080 --> 00:44:05,400
Speaker 2: they often have to use these like clinical terms for

695
00:44:05,719 --> 00:44:08,480
Speaker 2: what they are experiencing and why they need medication for it,

696
00:44:09,200 --> 00:44:12,480
Speaker 2: and not faulting people for making that approach because you

697
00:44:12,560 --> 00:44:13,719
Speaker 2: need the medicine that you need.

698
00:44:14,120 --> 00:44:15,200
Speaker 4: But now this is.

699
00:44:15,160 --> 00:44:20,359
Speaker 2: Being turned around and reframed as therefore, if people need

700
00:44:20,360 --> 00:44:22,520
Speaker 2: this stuff and they're making this argument, therefore they have

701
00:44:22,960 --> 00:44:26,000
Speaker 2: some sort of mental deficiency or some sort of issue

702
00:44:26,480 --> 00:44:29,439
Speaker 2: which is being used in order to challenge people's right

703
00:44:29,560 --> 00:44:32,719
Speaker 2: to keep in bear arms under the Second Amendment, or

704
00:44:32,880 --> 00:44:35,520
Speaker 2: saying that people are like because of their transnits being

705
00:44:35,560 --> 00:44:37,880
Speaker 2: motivated towards this attacks like, I don't know if you

706
00:44:37,880 --> 00:44:42,200
Speaker 2: have anything to again, not exactly like, not exactly a

707
00:44:42,280 --> 00:44:43,080
Speaker 2: legal issue.

708
00:44:42,840 --> 00:44:44,600
Speaker 4: But I don't know if you have any observations.

709
00:44:44,760 --> 00:44:47,880
Speaker 3: Well, I mean, I guess when it comes down to it.

710
00:44:48,000 --> 00:44:50,640
Speaker 3: Just to be very clear, the DSM makes it very

711
00:44:50,640 --> 00:44:55,480
Speaker 3: clear that or that being trans is not a mental illness.

712
00:44:55,840 --> 00:45:02,720
Speaker 3: That gender dys for you is distress cause by discrepancy

713
00:45:03,080 --> 00:45:08,160
Speaker 3: between the assigned gender and your actual gender, which would

714
00:45:08,200 --> 00:45:13,920
Speaker 3: exist if any cisperson were being treated as a gender

715
00:45:13,960 --> 00:45:16,719
Speaker 3: that they didn't identify with right that would be a

716
00:45:16,719 --> 00:45:19,920
Speaker 3: distress that would arise for any person. I think that

717
00:45:19,960 --> 00:45:22,840
Speaker 3: there are real problems with the sort of clinicization or

718
00:45:22,880 --> 00:45:27,920
Speaker 3: medicalization of gender affirming care. But I do want to

719
00:45:27,960 --> 00:45:31,719
Speaker 3: be very clear that that does not have to and

720
00:45:31,840 --> 00:45:38,520
Speaker 3: does not formally or officially include pathologizing trans identity. That's

721
00:45:38,560 --> 00:45:42,160
Speaker 3: something that's being imputed and being imposed, but it has

722
00:45:42,200 --> 00:45:47,680
Speaker 3: no basis in clinical practice. Not that that necessarily matters

723
00:45:47,719 --> 00:45:50,440
Speaker 3: to the government, but I do think it's important to

724
00:45:50,480 --> 00:45:54,280
Speaker 3: point that out. I think given that previous efforts to

725
00:45:54,520 --> 00:45:58,959
Speaker 3: restrict gun ownership on the basis of previously diagnosed mental

726
00:45:59,000 --> 00:46:02,880
Speaker 3: illness have not been super successful, I don't know that

727
00:46:02,920 --> 00:46:05,600
Speaker 3: this one will be either. But again, this is an

728
00:46:05,640 --> 00:46:09,160
Speaker 3: issue of power and less an issue of law or

729
00:46:09,600 --> 00:46:12,719
Speaker 3: logical coherent legal philosophy.

730
00:46:13,160 --> 00:46:15,480
Speaker 2: So this term has been coming up a lot of

731
00:46:16,200 --> 00:46:20,640
Speaker 2: you know, with Trump or the administration talking about domestic terrorists,

732
00:46:21,040 --> 00:46:23,360
Speaker 2: there's been a lot of pushback from the legal community

733
00:46:23,800 --> 00:46:27,200
Speaker 2: or from civil libertarians, saying, what the hell are you

734
00:46:27,239 --> 00:46:29,880
Speaker 2: talking about? Can you talk about like what it means

735
00:46:29,920 --> 00:46:34,239
Speaker 2: to be called domestic terrorists? What changes that makes in

736
00:46:34,360 --> 00:46:36,000
Speaker 2: like how the law approaches he or how you can

737
00:46:36,040 --> 00:46:36,560
Speaker 2: be convicted?

738
00:46:36,880 --> 00:46:40,719
Speaker 3: Yeah, gladly. So, at this point, what it means to

739
00:46:40,760 --> 00:46:44,239
Speaker 3: be called a domestic terrorist is actually nothing. There is

740
00:46:44,400 --> 00:46:50,120
Speaker 3: no legal procedure for designating a domestic terrorist group, for

741
00:46:50,520 --> 00:46:54,880
Speaker 3: designating a domestic group a terrorist organization, and given the

742
00:46:54,880 --> 00:46:57,680
Speaker 3: current law on the matter, even with this Supreme Court,

743
00:46:57,719 --> 00:47:00,800
Speaker 3: I think it would be very, very difficult to change

744
00:47:00,840 --> 00:47:02,480
Speaker 3: the law in the way it would have to be

745
00:47:02,600 --> 00:47:07,040
Speaker 3: changed in order to make that designation. There are ways

746
00:47:07,360 --> 00:47:12,120
Speaker 3: to freeze the assets of a domestic group. There are

747
00:47:12,239 --> 00:47:17,680
Speaker 3: ways to posit or show a connection between a domestic

748
00:47:17,719 --> 00:47:21,920
Speaker 3: group and a designated foreign terrorist organization, which is a

749
00:47:21,960 --> 00:47:25,440
Speaker 3: real thing that has legal effect. There is a way

750
00:47:25,680 --> 00:47:31,839
Speaker 3: to financially designate a group or an individual, as you know,

751
00:47:32,400 --> 00:47:36,600
Speaker 3: having this kind of relationship to foreign terrorist organization or

752
00:47:36,640 --> 00:47:42,520
Speaker 3: an FTO. So, but there's no legal mechanism for designating

753
00:47:42,760 --> 00:47:46,600
Speaker 3: a domestic terrorist group. That's not a thing. So this

754
00:47:46,760 --> 00:47:49,120
Speaker 3: is a place where the government could simply dispense with

755
00:47:49,239 --> 00:47:51,320
Speaker 3: the law. But I do not think this is a

756
00:47:51,360 --> 00:47:55,280
Speaker 3: place where the government can use the law to create

757
00:47:55,400 --> 00:48:01,440
Speaker 3: a category of domestic terrorist organizations. Just to like explain

758
00:48:01,840 --> 00:48:06,600
Speaker 3: ftos a little bit, there is a category of organization

759
00:48:07,480 --> 00:48:11,800
Speaker 3: that are designated by the State Department as quote, foreign

760
00:48:11,880 --> 00:48:15,759
Speaker 3: terrorist organizations ftos are designated by the State Department, and

761
00:48:15,800 --> 00:48:19,080
Speaker 3: they are listed on the State Department website. Right, it's

762
00:48:19,120 --> 00:48:20,960
Speaker 3: not a secret who they are. You're not going to

763
00:48:21,200 --> 00:48:23,319
Speaker 3: suddenly find out that you know, you gave money that

764
00:48:23,880 --> 00:48:27,799
Speaker 3: to I don't know the Greek equivalent of the ACLU,

765
00:48:27,880 --> 00:48:30,400
Speaker 3: and now it's you know, it turns out it's an FTO.

766
00:48:31,040 --> 00:48:35,880
Speaker 3: There are certainly cases where the government has successfully claimed

767
00:48:36,680 --> 00:48:42,799
Speaker 3: that a connection between a domestic group and an FDO exists,

768
00:48:43,440 --> 00:48:46,719
Speaker 3: even in the face of overwhelming evidence to the contrary.

769
00:48:46,960 --> 00:48:49,960
Speaker 3: And if you have a connection to an FTO, you

770
00:48:50,080 --> 00:48:54,239
Speaker 3: can be prosecuted for what's called material support for terrorism.

771
00:48:54,719 --> 00:48:57,720
Speaker 3: And it's a very serious charge. It's a very frightening charge,

772
00:48:58,040 --> 00:49:00,880
Speaker 3: and it does criminalize a lot of things that most

773
00:49:00,920 --> 00:49:05,120
Speaker 3: people understand to be protected by the First Amendment.

774
00:49:05,360 --> 00:49:05,560
Speaker 5: Right.

775
00:49:06,040 --> 00:49:11,280
Speaker 3: It criminalizes providing things like medical care to certain groups.

776
00:49:11,360 --> 00:49:15,280
Speaker 3: It criminalizes providing education or legal support to certain groups

777
00:49:15,280 --> 00:49:20,600
Speaker 3: that are designated foreign terrorist organizations. And frankly, this is

778
00:49:20,760 --> 00:49:25,200
Speaker 3: the idea that underpins material support for terrorism charges is

779
00:49:25,239 --> 00:49:28,200
Speaker 3: offensive to many people because it does feel very much

780
00:49:28,320 --> 00:49:33,440
Speaker 3: incompatible with constitutional norms under the First Amendment. It's an

781
00:49:33,480 --> 00:49:36,120
Speaker 3: important thing to be aware of, but it would be

782
00:49:36,239 --> 00:49:38,719
Speaker 3: very surprising to me if the government were able to

783
00:49:38,760 --> 00:49:46,640
Speaker 3: successfully make broad claims connecting quote Antifa to foreign terrorist organizations.

784
00:49:47,560 --> 00:49:49,200
Speaker 2: I was when you were saying that that had me

785
00:49:49,880 --> 00:49:52,319
Speaker 2: thinking a little bit about the Holy Land five case.

786
00:49:52,360 --> 00:49:55,880
Speaker 2: I was trying to remember that example. I guess like

787
00:49:56,520 --> 00:50:00,320
Speaker 2: to belabor this. Can we talk about the distinction between

788
00:50:00,680 --> 00:50:04,520
Speaker 2: domestic terrorist organization, which is a classification that doesn't exist,

789
00:50:05,160 --> 00:50:09,799
Speaker 2: versus the charge of committing terrorism because people who get

790
00:50:09,920 --> 00:50:15,400
Speaker 2: terrorism enhancements at least like the Maryus Mason one example

791
00:50:15,440 --> 00:50:17,399
Speaker 2: that comes to my mind, right, who is a member

792
00:50:17,840 --> 00:50:20,840
Speaker 2: of cell that was associated with the Earth Liberation Front

793
00:50:21,239 --> 00:50:24,840
Speaker 2: like so that that person got over two decades in

794
00:50:24,920 --> 00:50:28,920
Speaker 2: prison based on being convicted of crimes that existed and

795
00:50:28,920 --> 00:50:33,560
Speaker 2: then getting enhancements based on the definition that those were terrorists,

796
00:50:34,160 --> 00:50:35,520
Speaker 2: amplifying the amount of time.

797
00:50:35,600 --> 00:50:40,840
Speaker 3: Right. The difference is the difference between criminalizing conduct or

798
00:50:40,840 --> 00:50:47,200
Speaker 3: defining conduct as being terroristic, and criminalizing a group. The

799
00:50:47,239 --> 00:50:54,200
Speaker 3: First Amendment protects freedom of belief, association, and expression, and

800
00:50:54,200 --> 00:50:58,719
Speaker 3: that means that however much we might be targeted for

801
00:50:58,840 --> 00:51:05,360
Speaker 3: our beliefsciations, and expression, we cannot be prosecuted criminally for

802
00:51:05,520 --> 00:51:10,960
Speaker 3: anything besides our conduct our actions. And so there can

803
00:51:11,040 --> 00:51:17,640
Speaker 3: be terrorist offenses and enhancements for sentencing on the basis

804
00:51:17,680 --> 00:51:21,719
Speaker 3: of conduct that you are convicted of. If you engage

805
00:51:21,760 --> 00:51:25,839
Speaker 3: in certain illegal acts and a judge determines that those

806
00:51:25,920 --> 00:51:31,719
Speaker 3: acts were motivated by desire to do terrorism, that the

807
00:51:31,880 --> 00:51:36,480
Speaker 3: penalty for engaging in those acts can be enhanced. But

808
00:51:36,680 --> 00:51:41,640
Speaker 3: you cannot designate a group of belief or an expression

809
00:51:42,080 --> 00:51:47,120
Speaker 3: as being a crime in itself unless there is conduct

810
00:51:47,480 --> 00:51:52,799
Speaker 3: associated with it, because we don't criminalize people's identities. I mean,

811
00:51:53,040 --> 00:51:59,560
Speaker 3: we do criminalize people's identities, but it's impermissible to prosecute

812
00:51:59,560 --> 00:52:01,919
Speaker 3: people for having those identities.

813
00:52:03,040 --> 00:52:05,600
Speaker 2: I guess I have note as I understand the terrorism

814
00:52:05,719 --> 00:52:09,279
Speaker 2: enhancements that the prosecutors are pursuing in the Luis gim

815
00:52:09,280 --> 00:52:10,960
Speaker 2: Angioni case have been dropped.

816
00:52:11,560 --> 00:52:13,640
Speaker 4: Is a thing that I heard, yes.

817
00:52:14,400 --> 00:52:17,520
Speaker 2: Which I mean at the same time, this is referenced

818
00:52:17,560 --> 00:52:19,360
Speaker 2: in one of those documents that came out from the

819
00:52:19,360 --> 00:52:22,680
Speaker 2: White House as being a terroristic act. So yes, what

820
00:52:22,680 --> 00:52:25,759
Speaker 2: do the courts know? Okay, thank you for making that

821
00:52:25,840 --> 00:52:29,480
Speaker 2: distinction more clear. All right, So how might those of

822
00:52:29,560 --> 00:52:33,120
Speaker 2: us on the left or in justice movements as you

823
00:52:33,160 --> 00:52:37,000
Speaker 2: stated it, conceive of the state's view of us? How

824
00:52:37,040 --> 00:52:40,520
Speaker 2: do we rally support for our identities and positions, what

825
00:52:40,560 --> 00:52:45,279
Speaker 2: are some good practices understanding, Like, having had this conversation,

826
00:52:45,760 --> 00:52:48,440
Speaker 2: the terrain on which we're operating.

827
00:52:48,360 --> 00:52:51,840
Speaker 3: Absolutely, So I guess what I'd say about best practices

828
00:52:52,200 --> 00:52:55,719
Speaker 3: is understand whether you are at risk, even if you're

829
00:52:55,760 --> 00:53:00,440
Speaker 3: somebody who has not traditionally been at risk, even if

830
00:53:00,440 --> 00:53:04,040
Speaker 3: you're someone who has lived your whole life believing that

831
00:53:04,080 --> 00:53:07,719
Speaker 3: the system works and that this particular administration is like

832
00:53:07,760 --> 00:53:12,480
Speaker 3: an aberration. I would say, Look, this administration is preoccupied

833
00:53:13,000 --> 00:53:16,239
Speaker 3: with the funding streams for very mainstream liberal causes, and

834
00:53:16,280 --> 00:53:18,480
Speaker 3: the fact that it's sort of lumping everything under the

835
00:53:18,520 --> 00:53:22,200
Speaker 3: banner of antifa, you know, is probably a big surprise

836
00:53:22,320 --> 00:53:25,040
Speaker 3: for some of these groups, like you know, suburban white

837
00:53:25,040 --> 00:53:28,880
Speaker 3: moms against guns or whatever. But they are very focused

838
00:53:28,960 --> 00:53:32,879
Speaker 3: on things like wirefraud and money laundering and stripping nonprofits

839
00:53:33,160 --> 00:53:37,040
Speaker 3: of their tax status if there's even a whisper of

840
00:53:37,080 --> 00:53:41,640
Speaker 3: the possibility that those nonprofits are pursuing goals that are

841
00:53:41,640 --> 00:53:45,480
Speaker 3: in any way antagonistic to state interests. So, if you

842
00:53:45,520 --> 00:53:48,319
Speaker 3: are in a group that has a bank account or

843
00:53:48,440 --> 00:53:52,799
Speaker 3: raises money, the best practices here haven't changed. Keep very

844
00:53:52,920 --> 00:53:56,640
Speaker 3: precise track of your funds. If you raise money, use

845
00:53:56,680 --> 00:53:57,960
Speaker 3: it for that they knew said you were going to

846
00:53:58,080 --> 00:54:01,080
Speaker 3: use it for. Have an accountant, you know, be very

847
00:54:01,200 --> 00:54:05,200
Speaker 3: very careful about your money. And again, the best practices

848
00:54:05,320 --> 00:54:07,880
Speaker 3: for the rest of us also haven't changed. This is

849
00:54:08,160 --> 00:54:12,279
Speaker 3: political discourse that reaffirms what we already know about targeted surveillance,

850
00:54:12,680 --> 00:54:16,360
Speaker 3: and we have for a long time known how to

851
00:54:16,400 --> 00:54:19,040
Speaker 3: deal with this. If you are approached by law enforcement,

852
00:54:19,600 --> 00:54:23,080
Speaker 3: remember that the Fifth Amendment protects your right not to

853
00:54:23,120 --> 00:54:25,800
Speaker 3: speak to them. You have no obligation to speak to

854
00:54:25,880 --> 00:54:29,440
Speaker 3: law enforcement. It is a crime to light of federal agents,

855
00:54:29,520 --> 00:54:34,120
Speaker 3: and that means that it is safest not to say anything. Besides,

856
00:54:34,320 --> 00:54:37,280
Speaker 3: I'm represented by counsel. Please leave your name a number,

857
00:54:37,320 --> 00:54:40,879
Speaker 3: and my lawyer will call you. There is truly never

858
00:54:40,920 --> 00:54:46,040
Speaker 3: a compelling reason to speak to federal agents before consulting

859
00:54:46,080 --> 00:54:49,400
Speaker 3: with an attorney. The Energy Anti Repression Hotline can be

860
00:54:49,440 --> 00:54:52,600
Speaker 3: reached at two one two six seven nine two eight

861
00:54:52,719 --> 00:54:56,000
Speaker 3: one one. You can call to have a free, privileged

862
00:54:56,080 --> 00:54:59,840
Speaker 3: conversation about your rights, risks, and responsibilities and to be

863
00:55:00,000 --> 00:55:03,719
Speaker 3: connected with appropriate legal resources in your area. And at

864
00:55:03,719 --> 00:55:06,520
Speaker 3: the end of the day, we keep ourselves safe by

865
00:55:06,560 --> 00:55:10,520
Speaker 3: refusing to submit to this fear, refusing to comply in advance,

866
00:55:10,800 --> 00:55:15,960
Speaker 3: refusing to second guess whether we actually have rights, and

867
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Speaker 3: more importantly, we persist by being confident in the fact that,

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Speaker 3: no matter what, our communities are going to rally around

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Speaker 3: and care for each other.

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Speaker 2: I think that would be a great place to tie up.

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Speaker 2: Thank you so much for having this conversation and for

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Speaker 2: the insights that you shared, and for the work that

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Speaker 2: you do.

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Speaker 3: MO. You're very welcome. It's always a pleasure. It Could

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Speaker 3: Happen Here is a production of cool Zone Media. For

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Speaker 3: more podcasts from cool Zone Media, visit our website Coolzonemedia

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Speaker 3: dot com, or check us out on the iHeartRadio app,

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Speaker 3: Apple Podcasts, or wherever you listen to podcasts. You can

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Speaker 3: now find sources for It Could Happen here, listed directly

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Speaker 3: in episode descriptions. Thanks for listening.