Lawfare Daily: The Trial of the North Texas Antifa Cell

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However, you know, the next case when they kind of roll this thing out under circumstances that, you know, a little species, you know, it could subject the statute to litigation risk and erode its efficacy over time. It's the Laugh Fair podcast. I'm Peter Beck, an associate editor at Laugh Fair, with Tom Brzowski, who up until very recently

had domestic terrorism prosecutions at the Department of Justice. Healthy Edwards, Laugh Fair's public service fellow, and Stephen Monashelli, a special investigative correspondent at the Texas Observer. You're hanging your terrorism theory on a case that is that leadership is bragging about

this first terrorism charge of its kind for antifa on threads that kind of focus on the

exposed conduct, not necessarily the defendants intending and knowing and planning to do this thing, but afterward then concealing this person or concealing the evidence and calling it terrorism. Today, we're talking about domestic terrorism prosecutions and the ongoing trial of an alleged antifa cell in North Texas.

“Stephen, let's start with you, can you take us back to the event of July 4th, 2025?”

Sure. So on July 4th, 2025, what exactly happened is somewhat contested as we're hearing in the testimony in the case and the differences between prosecutions view and the defenses view. But what I think we can confidently say happened on that day is that around a dozen people

converged on the Prairie Land Ice Detentioned Facility in Alvarado, Texas, according to defendants and the defendants' attorneys, they believe they were there for what they

call a noise demonstration, which if you're not familiar with that is basically a protest

intended to create distracting noises and loud noises as a way to show displeasure. And what transpired was that this group of about a dozen people all wearing black wearing masks on their faces, some of them possessing firearms began to make noise, shoot off fireworks in the direction of this facility, a couple of them also spray painted cars in a guard facility and made statements and yelled things at their officers who came out of the facility briefly

and from there things quickly escalated. A 911 call was made from the facility, a loading local authorities to a disturbance that was occurring, and a police officer from allvarado police department showed up, his name is Lieutenant Gross, he actually recently testified in the case. And according to his recent testimony, it actually provided some new details as to what

happened, but he arrived, he saw an individual running away and he quickly pulled his weapon thinking that he was in a danger of situation. And what happened after is, you know, up for debate between the prosecution and defend, but what we know is that shots were fired. Lieutenant Gross was hit, Lieutenant Gross also managed to return fire, but did not strike

anyone and the dozen protesters and one of them who was found to have fire shots and is the alleged shooter in this case, they fled shortly after 10 of them were arrested. And the one who was not arrested evaded arrest for several days, that is the alleged shooter

“in the case of Benjamin Somme, and a lot has transpired since then, but I think we can”

save that for the rest of this discussion. So Tom, I'll pivot to you next. Originally, a lot of these protesters alleged and Tifa members, they were charged under other statutes, such as attempted murder on a federal official, and then since then, over the course of the months after there's been kind of a trickle of charges under the statute

called providing material support to terrorism. Could you talk about the trickle of those charges and what exactly providing material support to terrorism means?

one, but for sure, you know, I think the timing on this is interesting, it's put it that

way.

“So as you rightly note, as I understand it, the case, you know, the individual defendants”

were initially charged with a series of federal offices, some of which included, as you noted, you know, like attempted murder of a federal official and things of that nature. And then, and I'm just saying that that occurred in the July time for him to stop stake. But then, of course, you know, we had the assassination of Charlie Kirk, and in short order thereafter, the issuance of an executive order, reporting to designate Antifa,

followed quickly on its heels by the issuance of a national security presidential member and him seven, which was styled as an organizational plan for combating political violence and domestic terrorism. Shortly after that, we have a super seating indictment in which two things occurred of

note, first a charge related to providing material support to terrorists, which is 18 USC,

2339, capital A for those that are interested, was brought. And it was tied to a definition of these defendants as belonging to a cell or network related to Antifa. So those two things are not done by mistake, because what you have, of course, is a flurry of activity and rhetoric issued by the administration in the form of actual strategic

documents like the executive order, like NSPM7, that specifically concerned Antifa and Antifa aligned activity, and then on its heels, you have a super seating indictment characterizing these defendants as surprisingly, Antifa, or Antifa aligned, coupled with what is broadly understood to be a terrorism related charge.

“And so of course, as you might expect, I think the day or after maybe the very same day,”

you're going to have senior DOJ officials and the FBI director pointing to that charging

document saying, "Look, the government is taking this seriously, this is the first time

we're charging," we charged Antifa with terrorism, of course, just sort of hand waving all the specifics associated with that, and the timing, which is peculiar to say the least. So we can get into the specifics of 2339A, I don't know, maybe else he wants to cover the elements and the men's ray and all that, and how it's kind of qualitatively different than most of the other charges we typically see.

I will hasten to add, and maybe we can pick up on this later, that this particular charge, obviously, the title of it, kind of signals pretty strongly that it is a terrorism-related charge, it is construed as a federal crime of terrorism under the code, however technically speaking, and it does not require proof of a terroristic intent, let's put it that way. So it's slightly misleading that respect, but I'll turn it over to LTE to maybe give

it a rundown on what it does, I'm the nut-pachon spotty, but kind of figure, well, I know you did actually remember you doing a Prost Nemo on this back in the day, and I know you've done the deepest of deep dives on this particular statute, so I'll let you take it from here. Yeah, so Tom and I used to work at the counterterrorism section together at the National

Security Division, and, you know, while there, and then afterward, when I left, to go B&A, you would say, in DC and EDBA, I charged 2339A, both in domestic and international

“contexts, and I think that broader backdrop matters here to talk about, because historically”

2339A was used in a lot of international cases, where we would be, we being the Department of Justice would be able to charge folks, you know, one, two, maybe three clicks before something goes boom, and if it's unclear whether or not it's affiliated with something that's a designated foreign terrorist organization, which would warrant a sister charge 2339B, then you could still charge A, and so in the international context, and then there have

been a smattering of cases domestically charging 2339A, but I think to talk about why that matters might require even a further step back, which is to say, how 2339A structured and implemented in Tom was hinting at this. 2339A does not require a defendant to be intending to support a particular group at all. It is titled in the statute as material support to terrorists,

But the title of the statute is a little bit of a misnomer in that the way it actually plays

out is it's prohibited to provide material support to particular acts that are enumerated in that statute. And so there are all these other federal crimes of terrorism and other statutes that Congress has kind of wedged into 2339A and says, hey, if you provide material support to others,

“committing one of these many acts, then you can be charged under this statute. And that's what”

I mean by one to two clicks before something goes boom. There are these particular kinds of very dangerous acts that Congress wanted to say, hey, we don't want to wait until you've committed that act. We want to prosecute and stop it when people are even just providing support to those acts before they occur. And so that's how 2339A generally functions. And so I hope that's someone

helpful here and happy to then talk a little bit about how it plays out in this case,

but I'll go wherever you want to go. Yeah, of course. So could you talk a little bit about how the Department of Justice previously in the National Security Division, how they approached material support cases in the domestic counterterrorist and context and kind of the norms and practices around bringing that charge? Yeah, and Tom can jump in here too,

“because I think this is a really important question. When we're talking about domestic terrorism,”

and we're talking about 2339A, those are not complete overlaps, but they supplement one another. And so what I mean by that is domestic terrorism, and when we're talking about these policy moves by the White House to designate an organization like Antifa as a domestic terrorism organization,

that is not necessarily impacting how the government ought to use this statute 2339A.

As I said, 2339A can apply anywhere around the world, domestic international, it's not tied to a group. And so that ought to talk something in your mind when you read this indictment in this case, and I'm sure we're going to get more specific of it to the case. When you read Antifa over and over and over again, you have to ask why is the government including that if these statutes don't require there to be an affiliation or an intent to support

a particular group? And I have some thoughts about why, but that should be a question in your mind, and certainly a question from the defense mind, and it was in some other filings saying that Antifa shouldn't even be uttered by the government or its witness as a trial.

“So now to answer your question, how is the government historically charged with this statute?”

We've typically charged it, again, when there has not been a clear affiliation with something that's been designated, a foreign terrorist organization. One example is the counterterrorism section charged, and I was a full disclosure affiliated with this, we charged a group of defendants who kidnapped children in Georgia and took those 12 children to New Mexico and trained some of those children to prepare to attack FBI agents while they were pulled up in a desert compound in

New Mexico. And so we charged 2339A because we thought there are two things that every prosecutor's mind, right, can we and should we? But can we, was clear, right, these people were providing material support training children to kill federal law enforcement officers, which is a statute that is actually in play in this case. And then the should we mattered, and we thought it was relevant, it was important to have the word terrorism in this case because these defendants were

training specifically to kill government agents, and part of the backdrop in context was one of the children died when they engaged in this kidnapping, it was a parental kidnapping, and when they, the theory was from these defendants, is that that child would be resurrected. And when that child resurrects, it would call upon the other children to kill in the name of this religious sect, kill these agents, right? So there's no foreign terrorist organization element there,

you're not going to charge 2339B, you could just charge some gun crimes, but the penalties may not be significant enough. So the point is part of what the government thinks through is should we charge this, does it require maybe the discussion of terrorism and what that looks like in a broader context, and should we be using that word before the jury? So part of that would be playing out, I would think in the government's mind when they look at a case like this, right, do we want to use the

word terrorism, do we want to charge terrorism statutes? And then as the public, we should be asking, why is the government answering that question, yes, in a fact pattern? And before we go into the case, I do think it's important to say, it is a bad case, right? Someone shot at these federal law enforcement officers, and so when we engage in some critiques of whether the statutes make sense or the policy decisions from leadership, we shouldn't be diminishing, and I don't think

significance of the case. I mean, someone shot at a federal law enforcement officer and struck them.

“Yeah, I'll just make a couple points to kind of cover some ground that's been covered before”

in previous podcasts, but just to maybe eliminate some of the concepts that LT was without learning.

In the first instance, you know, it should be understood that although, you know, there was this

executive order that purported to designate again, antifa as a foreign, or like as a domestic terrorist organization, it's not really a, it's not really a thing. There's no statutory vehicle to actually do that. And so it's legal impact is diminimists, but it does muddy the water is considerably, because most folks aren't going to necessarily appreciate that. They see an executive order. It suggests that this entity is designated as a domestic terrorist organization. They take that

as face value, but it's not a thing. So it doesn't have any legal force is what I'm getting at. And so in that place into charging just determinations, along the lines of what we're probably seeing

“at Periland, in the sense that deploying the word designation suggests that there is a mechanism”

with which to actually do that. But, you know, there is a sharp distinction between what the government

can do and a foreign context, namely, designating foreign entities as foreign terrorist organizations, there's no corollary to that on the domestic side of the house. So there's no, there's no way to do it. With regard quickly to, you ask about guardrails, about like how, what process within the National Security Division when it comes to charging these types of cases. Within the department, there was and still is things called just as manual provisions. And these are really just

internal guidelines that direct U.S. attorneys or U.S.A.s on, you know, the process they need to follow in connection with, you know, doing certain things, you know, either prosecutions or whatever

the case might be. But as it relates to this particular charge, this is because it is a terrorism-related

“charge in the main that will require AUSA's and U.S. attorneys to effectively get their work reviewed”

by main justice before they bring that statute before they charge it. That is to say, did that happen here? It's not clear. I'm not going to speculate, but it's not immediately clear that that did happen. And then I will note one other justice manual provision that should have been followed. It's still in the justice manual right now as we speak, but it's specifically concerns undertaking investigations and prosecutions related to domestic terrorism specifically.

So for example, if an AUSA or U.S. attorney intends to bring a charge and in the pleading document, it references a named group organization that's related to domestic terrorism, they are required to get that reviewed and approved by main justice. So one or two things is happening here. Either that process is sort of no longer being undertaken. That's one possibility. Or number two, it is being undertaken and this particular language, a with regard to this definition of

antifa that was deployed in the charging document, has been and was reviewed and approved by main justice. So those are the two things that are going on right now. And those are the guard rules that typically are in place in connection with bringing this type of charge. So diving into the specifics of the case a little bit more Steven, who exactly are these defendants and how did they come together? So there are a total of 19 people who have been arrested

and charged the various crimes in relation to this case, but those that are on trial this week are nine that have not pled guilty to any charges and they were all in attendance of this protest. The group of folks that gathered outside of Prairie Land on July 4th, they are from this sort of activist Milo in the North Texas area. So folks that had ties to leftist organizing of one form or another, some had been members of the Socialist Rifle Association, some had been affiliated with

an organization that believed it's not defunct, calling it an organization may not even be the correct way, but a group called the Elmford John Brown Gun Club, which is a part of the sort of decentralized movement of organizations similar to that across the country that are leftist in nature and have sort of engaged in this practice of bringing firearms when legal to protests or sort of drag shows, for example, that have been targeted by protests in places like Texas and other states.

And the individuals that have been charged, they kind of are across the board in terms of backgrounds. There's a teacher, there's a teacher, a UPS employee, a variety of sort of

activist environment that has responded to things like these drag protests and other things over

“the past few years. And I've reported on a number of protests in the past where members of the”

Elmford John Brown Gun Club or others had shown up with weapons and there had never been violence.

There's one instance in Dallas where individuals with weapons dressed similarly actually kind of had to stand off with local authorities regarding a planned homeless encampment suite that didn't end up happening that day and there was no violence. So, you know, understanding kind of their perspective as individuals, it's folks that had seen this sort of thing happening over several years without incident and then arriving, you know, together as a group on July 4th. You know, from what we

understand from indictments and court filings, you know, they were in signal group chats together,

signal being an encrypted messaging platform that has been cited as evidence of sort of their

quote unquote criminal enterprise as it's described in some of these filings. I should also note that signal is widely used to tool by journalists and even members of the United States federal government, which has happened not without controversy. So, these individuals are, you know, broadly speaking, a part of leftist activism in North Texas and, you know, some had also been involved in what you could call like an anarchist book club where they would discuss, you know, reading group,

you know, they would act as a reading group and discuss zines and essays and books and those sorts of

things which also are factoring into the government's argument that those sort of zines or pieces

of the literature were insurrectionary in nature and evidence of intent to commit an act of terrorism. Some of the individuals had sort of prior arrests relating to things like what I would call civil disobedience and, you know, the Elmfork John Brown gun club there had been a prior case in Territ County here in North Texas where there was a protester in a drag show that had drawn right-wing protesters and there was a confrontation in which a member of the Elmfork John Brown

gun club had pepper sprayed one of these individuals and that resulted in a number of proceedings.

“I believe one of those individuals that's charged and ended up being found not guilty and a trial”

not the case for all of them. So, you know, to answer your question, these are folks that, you know, would probably be described as left-wing activists of various stripes but none of them had really had any past records with regard to actual sort of violence or terrorist activity. Tom, you've written some from law fair about the designation of Antifa as a terrorist group. I'm curious taking the kind of descriptions of these protesters and how they came to be

there at the detention center in Texas that day. I'm curious how you kind of taking that definition as the Department of Justice sees it, how that definition applies to this case and broader circumstances. Yeah, and a lot of that I am out alone and noting that the manner in which, again, Antifa has been defined as is so broad that it kind of sweeps in a lot of activity that could be construed is, again, following under the maximalist definition of

Antifa, which of course is short for antifascism. And then the language in some of these other instruments, separate from the executive order that actually purported to designated Antifa, specifically NSPM7, also eludes to Antifa adjacent activity that covers a range of viewpoints that on a spectrum from anti-Americanism to anti-capitalism to those that hold extreme views about

“gender rights. So the broader point here is that I think most security experts would understand”

Antifa to be more about politics, sort of an ideology, if you will, as opposed to a discreet entity or organization or even a network. It's like it's like designating Marxism just writ large, which of course makes no sense because you can't designate an idea as it were. And so what this does though, unfortunately, because in the manner in which the language has been deployed and in very official, you know, official pronouncements, again, an executive order, isn't a small thing.

A national security president, my mirror, and a no small thing. And then on the heels of Act, this December, the Attorney General issued internal guidance to all the components of the

that specifically related to, again, a small slice of threat vector that typically would

fall under the broader scope of what we understand to be domestic terrorism. And that slice, of course, specifically related to Antifa and Antifa aligned activity. However, the memo itself was styled, like suggested, that that small slice sort of swallowed up the entirety of what we understand to be domestic terrorism. And the problem with the memo is it went far beyond simply characterizing this threat in the manner that it did, as I said before, viewpoints that

that incorporated Antifa capitalists on anti-Americanism, whatever that is. But it went further and it directed internal components within the Department of Justice to do things like

create a tip incentive line where the broader public can call in and get money for providing tips

to the federal government about this sprawling threat vector that is ill-defined or the establishment of an actual domestic terrorist organization list, where entities presumably would be

“nominated to be included on that list, the list itself is secret, the criteria for being”

on the list is secret. There's no means, obvious means of address, should you find yourself on that list. And there are a number of other things that directly incentivize prosecutors and agents in the Department to focus their efforts on Antifa or Antifa aligned elements. Not to the entire Dutchman of the other domestic terrorism arena, there's nowhere in that in these directed

steps that specifically says Dow shall not investigate other types of domestic terrorism, but it does

create an incentive structure that is going to necessarily trickle down and have an impact on folks that are in those offices doing that work on a day-to-day basis. So, Altique, I'm curious how the organization of Antifa compares to some of the other terror groups that you've interacted with as a prosecutor. Yeah, so before I answer that two quick things just to jump on what Tom was saying

“because I think it's a really good point. These downstream consequences of ill-defined”

vague parameters around a threat prioritization can run a real risk, both impacting the law enforcement intelligence agencies that are investigating and the prosecutors who charge cases. One risk is the direction from Attorney General Bondi to have some intelligence reports created and analysts creating reports on this Antifa movement or activity around the country. The risk there is that now that's going to water down the broader public opinion of legitimate domestic

extremism or domestic terrorism investigations. So, what I mean by that is, there are Tom was saying this, right? There are legitimate domestic violence threats across the country, nihilistic violent extremism, racially motivated violent extremism. The FBI has historically characterized these kinds of threat matrices that occur in the United States and that we should be focused on to reduce the threat of violence to populations across America. When the Attorney General or an

Administration focuses loudly on one, it's not to say that prosecutors and investigators shouldn't investigate these others, but it's the only one that the country and the public will now hear about. And if it is ill-defined and vague, then it might cause the public to lose confidence that we've got our eye on the right ball here, right? And it might be worse. It might cause concerns that those ill-defined vague concepts now will bleed into everyday American life and if the powerholders

are not responsible, then we have reason to be alarmed as a public as opposed to be comforted that law enforcement agencies are looking at the right targets. So, that's a concern. Another concern,

“which I think is relevant to this case is if intelligence agencies start to collect domestic”

information, right? This is a topic that's written in the news in the last few weeks, if they start to collect information, what information are they collecting? How are they collecting it? How are they organizing it? Structuring it when they start to find membership in the groups they care about? We should be concerned by that just as a fundamental to our American history, right? Is these civil liberties and we care deeply about individualism? But we should be concerned even

in cases like this where I don't want to cause a alarm, I'm not sure what's going on, but the government and seeking to make this case complex, specifically articulated a need to potentially deal with classified information in the classified information procedures act, and that they may

much more, is what classified information is that if you in a case like this where a group of

folks have done this thing at Ferryland with fireworks and firearms and potentially shooting, but no indication from me, in my mind, at least from an outsider, that there are these foreign nexus or an obvious connection to classified information. Again, could be harmless, could be just that that was something that prosecutors needed to front for the judge in case it happens in the case, but it was unclear to me how that was related, and that is a potential damage and consequence of

having these ill-defined parameters around domestic organizations. Okay, now the answer, your actual question, one is how does Antifa relate to other groups I've investigated? That's a hard question,

“and the reason I think it's hard is because a lot of the groups I investigated and charged”

membership or activity with it were foreign terrorist organizations, which is different in category,

right, and those foreign terrorist organizations included, you know, the Islamic Revolutionary

Guard Corps in Iran, ISIS, you know, is investigating somewhat hierarchical entities that had struck strict membership, it had leadership factions, I mean, you talk about the IRGC in Iran, right, it's a faction of the Iranian government, it has offices, it has tiered leadership structures, it is beyond just a thought process, but it is in fact an actual group of folks we have designated to be terrorist organizations that are help Anton, you know, harming American interests and allied interests.

That's an unfair comparison because the White House seems to have done here with Antifa, has talked about it in a domestic terrorism context, and you know, I sense that Tom is touching on something that's really important here that it is really hard for any policy maker to navigate domestic groups and it ought to be hard because it's so closely impacts domestic surveillance and a number of statutes and investigation techniques that are then triggered if you start to

designate groups, a domestic terrorism threat, and so you would hope that our policy makers and our leadership is thinking very carefully about how to characterize these groups and how to delay civil liberties concerns that are legitimate, and it does not seem that that kind of concern played out by leadership decisions when that was issued, those those policies in Iran were issued. Just to pick up a real quick on one one thing with regard to the NTVP's before we kind of

“pivot back to the how this is playing out in this case, then I think it's worth noting.”

First, I indicated that in my view, just having been privy to a lot of the internal reports that

were generated over the years, I'm not an analyst myself, but, you know, Antifa is more of a politics we've established that a little bit. That being said, though, it should be noted, and I think I think it's appropriate to note that there are and have been a number of smaller networks loosely connected that could be construed as anarchist collectors, if you will, that have done a fair amount of violence, especially, like, you might recall the 2020, you know,

a lot of the riots and protests that occurred, you know, post George Floyd's murder in and around the Seattle area, Portland, and there was a period of time when there was, you know, recurrent violence being directed towards the federal courthouse over many weeks. By individuals that were dressed in black, that that probably, you know, could be, you know, were probably determined to be sort of members of anarchist collectives, if you will.

And I think that there's a danger that folks sort of conflate that with Antifa, there's a little overlap in terms of, like, shared, you know, a shared tactical set, you know, a shared tactic, so they typically engage in. But again, the broader point is that even though they, you know, these individuals may at some general level, subscribe to the same philosophy, it doesn't know way makes them in any way, man, shape or manner connected. So that's just something

that I understand is, like, on the one hand, you know, I fear sometimes when we spend so much time saying Antifa's not a thing, it's just an idea. The rejoineder to that is, well, what are you to call? What about all these guys over here that are doing X, Y, and Z? And that is true. However, there is no, there's no synergy, there's no connection, there's no command, there's no controllers, there's no hierarchy, there's no leadership, et cetera, et cetera. And the

moreover, one last point we're going to turn it back to you is that, you know, we spent a lot of time talking about the nature of the Antifa threat, these strategic documents issued by the White House, of a coding executive orders, NSPN70s, these top level memorandums being issued by the attorney

“general, all concerning Antifa and Antifa adjacent activity. Yet, here's the thing, yet,”

when you look at congressional oversight committees, you know, where you've got smart testimony by senior department officials, including the director of the FBI recently, and their actual

as they see it at that given time. This is the director of the FBI. You would expect to see some reference to Antifa, included in that document, and yet, you do not. And so there's a dissonance there, which is stark as you can possibly make it between what the individuals that are actually undertaking these investigations see, and the rhetoric that is coming from senior policy makers in connection with this perceived threat. And like explain that, I don't know how you can,

but that's always kind of struck me as being, you know, pretty, a pretty stark dissonance between

“Antifa and that, and I think that speaks volumes. Stephen, could you walk us through some of the”

kind of individual allegations against these alleged Antifa members? Sure, so the main allegations that stemmed out of this July for protest turned violent incident are attempted murder, which is applied to multiple individuals, and not just the single alleged shooter. We have the charges that you've already mentioned, materials portitarism, and those tend to be related to activities that government has alleged. People have either tried to move evidence, so in one instance,

one of the individuals arrested at the protest have made a phone call, and the individual

answered that call went to their home and moved a box of zines, literature, which the government

considered evidence in this case, and not individuals charged with, you know, potential evidence

“tampering. There were individuals who have been charged with helping the alleged shooter”

Benjamin Tsang of aid arrest, transporting him to the Dallas area and harboring him. There have been individuals who have been charged for things that stemmed out of interactions that occurred after FBI raids, or rates by federal officials, in one instance, an individual that had his home rated in his devices confiscated, went to the home of a friend who was also a member of the social strifeful association, and the individual they approached went on to signal and removed the person

who had been arrested and their home was rated from some signal group chats, and the government has interpreted that as potentially tampering with evidence, trying to delete evidence, even though I don't believe the allegations actually that messages were deleted, simply that an individual who was known to have had their devices confiscated was removed from groups, and, you know, that was in, you know, the defendant has argued that that was a procedure for anybody had their

access to their phone compromised, that's something that they would have done. So, you know, those are sort of the range of activities we've also had individuals be accused of helping plan the alleged ambush, Benjamin Song, alleged to have provided weapons to other individuals, multiple weapons that he was found to be the owner of, were covered at the scene, but I should also note that

“I think the majority of the weapons that were covered were either in backpacks, disassembled,”

or had even been found in cars, and were not necessarily in the hands of the individuals ready to be fired. So, you know, there's a range of activities, roles, alleged roles in this alleged ambush that the government has, you know, sought to charge individuals, and in, in several of these instances, as I speak mentioned, folks have taken guilty police, and, you know, have taken guilty plea for the material supporters and charges.

Some of them are reportedly going to testify against the alleged shooter. Two of them described, I believe it was to describe him as his role as either to intimidate police officers, or to, you know, sort of, keep watch for police officers, but the government has construed that, and other messages from the signal group chats as an indication that the

individual actually intended to commit violence. The defense has put forward a theory that basically

alleges, you know, that argues that Benjamin Song, the alleged shooter, was seeking to defend another protestor who was running away after the police officer arrived on the scene through his weapon, whether that's convincing, I won't be able to say, but that's kind of the long and short of what the government is looking at and what they believe these individuals have done. So, to draw it out a little bit, the government thinks that that group of people

went to the Prairie Land Attention Center in order to attack a government building, basically to be disrupted as disruptive as possible while the defense says that it was a protest.

So, the government early on in press releases in any indictments has described this as

“a planned attack and alleged ambush and has argued intent to commit terrorist activity here, and”

that these individuals were intending to commit violence and that they all knew that this could happen or would happen. The defense has argued that is not the case. Most of the defense lawyers are making arguments that essentially say the majority of the defendants were unaware of any intention to commit violence, that they believe that they were simply going to commit a noise demonstration, which perhaps could have been described as a form of criminal mischief, but not violence.

And the defense has brought up the fact that two unarmed federal officers came out of the building interacting with some of these individuals and were not harmed as a part of that argument. And one defendant who is nearby in her car, but not actually present for any of the events that actually paned out in the violence that occurred has also been charged.

So there's basically a criminal conspiracy argument here that the federal government is making,

and the defense is alleging that if anyone had an intention of violence, it was only one of them. And a couple of defense attorneys have even made public statements to the press, effectively singling out the alleged shooter as having their own agenda.

“So LTL start with you, but Tommy welcome to jump in as well. Why is this case so different?”

You know, 2339 is a pretty broad statute. The government has prosecuted I'm thinking of one case that's also from Texas I believe of a man who allegedly did graphic design for ISIS and the government says that that was an instance of material support to provide terrorism. What about this case makes it so different from you for you? Yeah, so I'll caveat this with I tried to pour through the docket to kind of get a better sense

of a government's case and there actually was not a ton of pretrial litigation. There was not a lot of heavily motioned, you know, written out motions to suppress motions for pretrial detention, pretrial motions to dismiss, you know, for any kind of 12B motions. Normally those areas would be places where the public could learn. All right, here's the government's theory, you know, here's the weaknesses, the defense perspective. It moved pretty quickly

and there was not a ton of that. And so anything I'd say here is a little bit caveat of that. I've tried to glean it from some arguments that the government's making and what we do have

“in in the speaking indictment. But what makes this case different? I think is just the lower”

amount of planning and violence that occurred. And again, that's not to diminish the violence that

did occur. But here's what I mean by that, the planning. When I open the indictment to NC and, you know,

it's a topic that we could have another podcast on is this writing charge under 18USH 2101, which is the lead charge and the number of person under problems that some courts have flagged with that statute. When I saw that the interstate writing and the material support to terrorists, I anticipated to see a lot of evidence about intent. And so maybe we should take one moment to say what the government's allegation is for this material support charge. The material support charge

is that these defendants provided the material support knowing or intending that that support would be used to facilitate one of three statutes that the government has listed out. One is 844F, which is maliciously damaging government property with an explosive device. One is providing material support knowing it would be used to support damage to government property

18USH 1361. And the third is support to aid in an attempt or actual killing of a federal law

forced by officer 18USH 1114. And in reading through the jury instruction debates, this seems to have landed on the right outcome, which is the jury has to agree that the material support was intended to support one of those. They have to be unanimous as to one. But they don't have to be unanimous as to all, meaning they don't have to find the government prove their support was all three, as long as one of those is met. And what's really interesting to me

is as I read through the indictment, what makes this different is I anticipate it seeing a lot of planning to support those three crimes. We aim to damage this property. We're going to tear down this facility. We're going to shoot officers in our way. We are going to wreak havoc and damage

should they get guilty convictions, we wanted to intimidate coercer retaliate for government action and change government policy. I anticipated seeing commentary like that in the speaking indictment. I didn't see that. What I saw was some concerning statements, regarding bringing firearms and making sure we have somebody with a rifle to intimidate law enforcement officers to not stop us from our noise protest. But I did not see statements about

“even causing intentional damage. I think that there were statements about the graffiti.”

Until that lack of evidence of planning ahead of time, will I think be a weakness for the government? Unless there's more, this is just from the indictment. But it will be a weakness for the government to prove the intent that I intended to provide material support myself, my supplies,

my training, to do these things intentionally. And the second difference is the violence.

What happened was no doubt, extreme and a violation of law. Someone shot at an officer. There are charges for that and that person could have been charged for that, both federally and locally. To charge material support to commit that crime, I think is going to require a lot more from the government to show that there was this intent while they were carrying out their provision of material support or the intent of others to help Benjamin Song shoot that officer.

“And I did not see a lot of that in the speaking indictment. And so I think there's some”

weaknesses there. The government has to catch up on it. I would obviously echo everything LT had to say for sure. But you know, at a broader kind of more basic level, I think there are a couple things that concern me with this particular case. And at first, it's kind of a showcase for the power and reach of this particular statue. I mean, if you couple it and ask LT right, they noted, there's a world in which you may have charged it this way that you can conswire to actually

provide materials for it too. I mean, you can back up by a bunch of ticks activity before even gets to some sort of actual kinetic endpoint. So there's that. And then when you couple that with some of the predicates that are in play here, specifically 1361, and now damaging a government facility, what does that mean? Like, what are we talking about here? Like, what does that damage

have to look like? It's a powerful statue and it can reach a lot of activity. That's number one.

Because it's so powerful, all those institutional guardrails and oversight mechanisms that I noted earlier that we're cabin, like we're enshrined in the Justice Manual provisions, on that requirement to come to main justice, to get that charge looked at, to get it approved before it's deployed in the field by U.S. Attorney, U.S. Attorney, U.S. Attorney, they're there for a reason. It's because the statue is so powerful. And when you remove that institutional, you know,

those institutional elements and that that oversight mechanism, you're going to get something less than the uniform and judicious application of that statue over time. And that

in turn will, ultimately, possibly, degrade the efficacy of the statue when you really need it.

Because it's, you're subjecting it to litigation risk. If you capriciously deploy it in circumstances where, I'm not suggesting that this is cases, it's inappropriate. I'm with LT and the fact that someone got shot. This is legit case. However, you know, the next case when they kind of roll this thing out under circumstances that, you know, our little species, you know, it could subject the statue to litigation risk and erode its efficacy over time. Because it has been deployed

recently in connection with real legit domestic terrorism cases that nihilistic violent extremism thing that LT was talking about. The DOJ charged one of the ring leaders of 764, which is one of these networks with, guess what? Providing materials for the terrorists is very same charge,

“as they should have. That's what it's built for. And then, finally, I kind of think that this case,”

as important as it is, actually is not, and shouldn't be viewed as some kind of bell weather for how the department's going to move forward or how the administration's going to move forward to target antif. It might. But I think it's, you're missing that the real fundamental issue, which is that, you know, the architecture that allows for a wide range of investigative activity targeting viewpoints associated with, again, anti-Americanism, anti-capitalism, anti-Christianity,

that's in place. So whenever the verdict is on this case, it's obviously important for the folks that are out there. But that's not going to change that that's superstructure that has already been erected and then, you know, there's been all kinds of press just recently in terms of the

and Homeland Security and their Homeland Security Core Larry and how they're sharing information,

some of which might, again, implicate things like, like, as I'll take kind of hint to that, some national security tools that typically are not used in a domestic context. That's the real story. And that is ongoing. That's not getting, this, this case is not going to change any of that. So I just, I would, I would just caution that, well, as, whereas this case certainly is important for all the reasons we talked about today, the superstructure is already in place and the wheels are

turning already. And another part of that real story, Tom's pointing out here is there is a lot of

“discussion in public forums about the need for a domestic terrorism statute. Do we need one?”

Don't we need one? Should we have one? I think what people should recognize and it's something that I've talked about previously and while I was in the department is the government has the tools available to charge and dissuade folks from committing violence acts and the lens of domestic terrorism. We're seeing it play out in this case and whether rightly or wrongly we can discuss, but 2339A is a tool to stop folks who are hell bent to commit acts of what we call

publicly domestic terrorism because 2339A can be used to stop folks from supporting certain acts regardless of the affiliation with a group for an or domestic. And so people ought to realize that when they see this trial play out, they should be thinking themselves, should we people on the hill? Oh, we may have that statute. Now, should we shrink it, should we grow it? That's a question, but we have a domestic terrorism statute. It's just a statute that's not been used historically

in that way. So on that note, what will both of you be looking for as this trial and false Tom, we can start with you? Yeah, of course, I just want to see what the government is able to put on, you know, connection and I'm not entirely sure the manner in which this would would actually transpire, but you know, do these defendants self-identify as in Tifa? Like, where are they getting at? Like, I'm just curious to see how or under what circumstances they

cobbled together this definition and how it relates to the actual, how the actual defendants

“understand or conceive of themselves. I mean, are they characterizing themselves like this?”

I mean, what have you? I mean, it's a small thing, but given this is, you know, the government's

first crack at defining this, this so as in Tifa, I certainly been interested in that component.

I'd be really interested in a couple of things. One, how do these folks who played guilty play into the government's case in chief? I went and grabbed their plea documents to read the statements of fact to see because when I read that at least five had played guilty to the material support charge. I thought, again, well boy, there's the meat, right? They must be laying out that, you know, this was intended and there was a plan and they had

talked about it for weeks. I didn't see it, you know, in the statement of facts for some of these cooperators, what was telling to me was including how the government described these cooperators in their witness list. A lot of them were going to testify about how they helped Benjamin song after the fact and something that we haven't talked about here is 2339A, also prohibits concealing or evading capture for, and I don't remember the language I thought

my head, but concealing the material support of the evidence of that material support for those acts. And so as a former national security prosecutor, I raised my eyebrows a little bit. You're

hanging your terrorism theory on a case that is that leadership is bragging about this first

terrorism charge of its kind, Frantifa, on threads that kind of focus on the expost conduct, not necessarily the defendants intending and knowing and planning to do this thing, but afterward, then concealing this person or concealing the evidence and calling it terrorism, I would be skeptical to bring that case, and at least I would be pushing hard for more evidence of the intent and the planning, and so there was one defendant Nathan Brahman in his was a

little meteor, and I would encourage the public to look at it. It's interesting. His did involve discussions about planning the day before or two days before, but when you look at the statement

“of facts, which again, I think educates a little bit where the government's going to start to shift”

its case in chief, there are scratchouts and hand writings on the statement of facts, and that's not crazy, right? Defendants have to get through a rule heaven colloquially, and when they plead guilty, they hear the facts out loud, they can either panic or realize, maybe it was worded differently, and that's not true, and they want to tell the truth under oath, in that hearing, and so the parties in the court scratched it out and right what's true. What this defendant

changed it to was any time there was a reference in the statement of facts to knowing about the

each time that was brought out, that was scratched out and written on top, learned at the site

on July 4th, you know, learned that folks may have an affiliation with Antifa, learned that

“somebody might have a firearm. I think that's telling, they also scratched out a predicate for the”

2339A, they scratched out the 844F, use of an explosive, to maliciously damage government property,

and only left the 1361, which is the lighter charge of damage to government property. And so

I as an outsider, I'm looking at that, and I'm wondering if the defense may hone in on that as a road map to the government's case in chief that if one of their cooperators who was on the ground

“floor right allegedly, you're going to tell the jury that this person was there, if that person can't”

even bring themselves to testify to facts about planning and preparation and intending to use the explosives to damage property, where the government might be pivoting here and start to focus its theory of its case to, okay, look, it's just a plan to commit destruction of property 1361 and a lot of folks learned a lot of these facts on seeing July 4th, that's going to be a chance for the defense counsel to jump up and down and say, "See, no plan, no intent for my client."

And I'd like to see how that plays out. That seems like a good place to stop. Thank you all so much. We'll continue to follow the North Texas NTV trial here at Lover. Thanks so much. Thank you, appreciate it. the law fair podcast is produced by the law fair institute.

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