‘People should be scared’: convictions in US ‘antifa’ trial set dangerous precedent

The conviction in Texas of nine activists on terrorism and other charges earlier this month sets an alarming precedent: the Trump administration can crack down on leftwing groups and label them “domestic terrorists”.

The case was widely seen as a major test of the Trump administration’s efforts to punish protesters and leftwing views. The charges came after a protest outside of an ICE facility outside of Fort Worth last year. Activists planned to set off fireworks outside of the facility in solidarity with those detained inside, traveling with a cache of automatic weapons and body armor they said was for self-defense against counter-protesters. Once they got there, a small group broke away and began vandalizing cars in the parking lot, spray painting graffiti, slashing tires on a government van, and breaking a security camera. A police officer arrived on the scene and drew his weapon at those in the parking lot, one of the activists opened fire with an AR-15 and hit the police officer in the shoulder. He ultimately survived.

Eight of the protesters were convicted of riot, explosive charges, and providing material support to terrorists. The shooter, Benjamin Song, was convicted of attempted murder and additional firearms charges. A ninth person who was not at the protest was convicted on charges related to moving a box of zines in the days after the protest.

After the killing of Charlie Kirk last year, the Trump administration vowed to crack down on “antifa”, calling it a domestic terror group. That labeling was met with heavy criticism as experts noted that antifa, short for anti-fascism, is not an organization, but rather an idea used to describe a constellation of leftwing beliefs.

The Trump administration was quick to frame the verdict in the Texas case as vindication of its efforts to crack down on antifa – the justice department’s press release touting the verdict uses the word 16 times. “Today’s verdict on terrorism charges will not be the last as the Trump administration systematically dismantles antifa and finally halts their violence on America’s streets,” US attorney general Pam Bondi said in the statement.

But for all the Trump administration’s focus on antifa, the legal issues in the trial had nothing to do with the group. The terrorism charge the defendants faced focused on the narrow issue of whether or not they provided support for specific crimes. It did not require prosecutors to prove anything about the connection to an organization or their ideology. Before giving the jury its deliberation instructions, US district judge Mark Pittman asked prosecutors why he should mention “antifa” at all, suggesting it was irrelevant. “Whether it’s antifa or the Methodist Women’s Auxiliary of Weatherford, why does it matter?” he said. The long instructions he gave to the jury laying out how they should weigh the charges only included the word “antifa” just once, in passing.

“This verdict is not a jury saying antifa exists as an organization and supporting it is support for a terrorist organization,” said Francesca Laguardia, a professor at Montclair State University who studies terrorism. “It will be important for the public to remember that.”

Mike German, a former FBI special agent, compared the prosecution to the cases of hundreds of protesters who were arrested during Trump’s first inauguration for damage caused by a small group.

“Both of these efforts, I think, are less about winning convictions against those defendants and more about sending a message to protesters that you might be in the wrong place at the wrong time. And it’s not worth it to come out and protest because you might get beat up by far-right militants and the police will ignore it, or you might get arrested for something that you weren’t involved in but happened to be present when it occurred,” he said.

Experts said they were alarmed by the way prosecutors pointed to things such as the protesters’ use of Signal to communicate, dressing in dark clothing, and reading leftwing literature in a book club to make the case that the demonstrators were engaged in a coordinated group.

“People are increasingly concerned about surveillance, whether online, at protests or wherever. So people, for a variety of reasons, are going to be more cautious about things they say, things they do,” said Mark Bray, a professor at Rutgers who studies anti-fascism. “The precedent is being set that the more cautious you are, the more that you could potentially be accused of trying to hide something.”

“The government has gone on record as saying that using Signal is a piece of evidence to suggest someone is a terrorist,” added Bray, who consulted as an expert witness for one of the defendants in the case but did not testify.

Seven of the defendants – all but the shooter – were acquitted on attempted murder charges. Those acquittals suggest that jurors did not buy the narrative from prosecutors that law enforcement officials had been ambushed, said Cody Cofer, a lawyer for Autumn Hill, one of the defendants.

Still, the trial underscored how easy the law makes it for prosecutors to create a conspiracy, Cofer said. “People should be scared,” he said.

“There is an online culture, Reddit culture, that these government officials just absolutely know nothing about and only have contact with it through the investigation of crimes. And so when you only have contact with these cultural characteristics through criminal investigation, you just naturally have this sample bias of ‘oh, this is indicative of criminal conduct.’”

The federal government doesn’t currently have any other pending cases alleging terrorism or any other criminal charges against people accused of being Antifa, though that could change. An FBI document obtained by the Guardian in December said the agency had launched “criminal and domestic terrorism investigations” in at least 23 regions. A top justice department official has also urged prosecutors to aggressively go after protesters, telling them to “go big” and “go loud”, according to the New York Times.

“I absolutely think the government is likely to bring more of these cases,” Laguardia said. “There is clearly an interest in prosecuting individuals who the government believes to be associated with antifa. There is clearly an interest in building up the idea that antifa exists as an organization.”