Biden is Expanding Trump’s War on “Domestic Violent Extremism” — and It’s Sweeping Up Black People

With gas masks covering their faces, police officers in Mobile, Alabama, stood guard at the entrance of a highway on-ramp as tear gas wafted in the air. Then, video shows, a woman wearing a red handkerchief around her neck ran up to a police SUV. She shouted something back to the crowd before swinging a red bat into the car’s passenger seat window, shattering it.

Mobile never saw the looting or property destruction that took place elsewhere in the weeks and months after Minneapolis police murdered George Floyd, but 21-year-old Tia Pugh’s single act amid otherwise nonconfrontational protests captivated the community — and the police, who tracked her via Facebook to her apartment. Two days after the protest, on June 2, 2020, they hauled her, handcuffed, in front of press cameras. Pugh, a Black woman who’d never been arrested before, was born in Mobile but grew up in Minnesota. “Genocide is happening, we’re being murdered in the streets,” Pugh said while she was being arrested, her voice muffled by a mask.

Local law enforcement officers weren’t the only ones interested in the case. The FBI interviewed Pugh the same day that Mobile police arrested her. After leaving her to wait in a cold room without a lawyer, two FBI agents and a police officer, none wearing masks, walked in and told her they just wanted to talk, according to video of the interview. They said they were not considering new charges on top of the two misdemeanors she was facing in municipal court, but statements she made during this interview were ultimately used to charge her under federal law and used by prosecutors as a confession.

Pugh was part of a breakaway march that had gone toward the highway. During the interview, she said that she’d never been to a protest before and had intended to demonstrate peacefully. But police had penned in protesters at both the front and the back; she feared officers would escalate force against the crowd, so she smashed the window to draw attention to herself while others escaped.

“We were attacked first. I was getting my people out of there … before anything escalated,” Pugh said. “We get killed for less.”

It was more than enough for the FBI to charge her with a felony that carried significantly higher penalties than the municipal misdemeanor charges. What made the crime federal, prosecutors later said, was that the highway on-ramp was a vessel of interstate commerce.

Pugh was charged under a federal law — seldom used before the Trump presidency — that was passed in the wake of riots following the assassination of Martin Luther King Jr. The charge specifically criminalizes the act of interfering with police or firefighters during a civil disorder that disrupts interstate commerce.

Federal prosecutors with the U.S. District Court for the Southern District of Alabama pushed for Pugh’s pretrial detention and, according to her lawyer Gordon Armstrong, rejected diversion programs, instead plowing ahead with the prosecution. Pugh remained free on bond but was convicted by a jury on the civil disorder charge this past May. Prosecutors are seeking a sentence of 12 to 18 months in federal prison, and Pugh faces up to $250,000 in fines. A call to the apartment building where Pugh was living was not returned.

The Justice Department didn’t put out a press release when Pugh was convicted, as it did when she was charged, but her case was an important test. The feds had rarely invoked this civil disorder law until last year, when prosecutors charged at least 55 people, most of them involved in protests in support of racial justice. Former President Donald Trump’s reelection campaign leveraged the crackdown in its marketing; by contrast, the Biden administration has made subtler references to prosecuting these cases.

But far from breaking with the Trump administration’s prosecution of civil disorder cases, the Biden administration has doubled down with an expansive view of so-called domestic violent extremism and domestic terrorism.

Under President Joe Biden, cases involving violations of this civil disorder law have been overseen by the Justice Department’s Counterterrorism Section. In the first month of Biden’s presidency, the department was faced with the January 6 Capitol attack, and the anti-riot law proved useful in those prosecutions: At least 163 of the 570 Capitol defendants prosecuted at the federal level were charged with civil disorder offenses between January and August, along with an array of other charges, according to data compiled by the Prosecution Project.

When the Justice Department began prosecuting protesters and other participants in civil unrest last year, public defenders and former U.S. attorneys said that such charging for property offenses and looting was unprecedented because cases would generally be handled at the state level rather than by federal authorities. Capitol attack participants, on the other hand, committed their alleged acts on federal property, where the jurisdiction is clear.

Regardless of whom the Justice Department charges with civil disorder, however, legal experts we interviewed see the use of these once-rare statutes as indicative of a shift that could make it easier for the federal government to intervene when it alleges criminal activity during protests in the future.

As pending legislation aims to bolster federal powers against domestic terrorism, there is political will among congressional Democrats to repress far-right extremism. But the Justice Department’s approach under Biden also appears to be sweeping up people like Pugh, who had no ties to extremist groups or even an activist background.

With prosecutions of both Capitol defendants and protesters for racial justice, this use of the federal court system has become a bipartisan affair.

An Unusual Use of the Federal Courts

The same day as the protest in Mobile, former Attorney General Bill Barr activated the FBI’s Joint Terrorism Task Forces to make arrests across the country, and throughout that summer, he pressed federal prosecutors to intervene in protest cases, even convening a task force “devoted to countering violent anti-government extremists.”

Court records for more than 300 federal cases for rioting and destruction arising from last year’s protests seldom referenced people’s affiliations with any political groups to support the idea that they were extremists, according to an analysis by the Associated Press in October. We found that about 59 cases arose from two civil disorder charges, and another 111 were arson cases in which a link to a federal jurisdiction — such as an attack against federal officers or property — wasn’t immediately apparent. The Intercept and Type Investigations were able to confirm the race of 83 defendants in those two groups. Over half of those defendants were Black.

The Justice Department under Biden has continued many of these civil disorder and arson prosecutions. In March, two months after the Capitol attack, new guidance issued by acting Deputy Attorney General John Carlin instructed all federal prosecutors to take a broad view of domestic violent extremism “and include all violent criminal acts in furtherance of ideological goals stemming from domestic influences, such as racial bias and anti-government sentiment.”

In testimony to the Senate Appropriations Committee on May 12, Attorney General Merrick Garland affirmed the department’s priority of prosecuting domestic violent extremism, emphasizing “those who advocate the superiority of the white race.”

But when the committee’s vice chair, Alabama Republican Sen. Richard Shelby, asked about the attorney general’s stance on prosecutions for last year’s urban “rioting and pilfering,” Garland insisted that the department was indifferent about the ideologies undergirding federal crimes.

“Anything that breaks the law is subject to prosecution,” Garland said. “It may not be subject to federal prosecution — there has to be a federal crime involved. But if it breaks the law, of course it’s subject to prosecution.”

In a National Security Council strategy document released in June, the Biden administration declared that while the U.S.’s main domestic terror threats were militia groups and “racially or ethnically motivated violent extremists (principally those who promote the superiority of the white race),” federal authorities would also “disrupt and deter those who launch violent attacks in a misguided effort to force change in government policies that they view as unjust.”

Because the Trump administration disproportionately targeted protesters supporting the racial justice movement, maintaining these prosecutions is concerning, according to Lauren Regan, executive director of the Civil Liberties Defense Center.

“Under Trump, we were seeing an unusual use of the federal court system,” Regan said, but that’s still the case. “We’re not seeing a big change in the Biden administration with regard to the prosecutions of Black Lives Matter activists as compared with the previous administration.”

But the Justice Department has a legitimate interest in maintaining prosecutions across presidential administrations, said Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University and formerly the Justice Department’s acting assistant attorney general for national security from 2016 to 2017.

It may even have more of a reason to do so after the Capitol attack; choosing only or mostly to prosecute those defendants could raise allegations of political bias or selective prosecution.

“It’s not helpful in the long term for the institution to zing back and forth between administrations,” McCord said. “My suspicion is that the department is trying to take a holistic look: How are we applying these statutes across the board so that we’re not only applying them to one instance of ideologically driven civil disorder and not another? Because that would lose credibility in the courts.”

The Department of Justice did not respond to questions from The Intercept and Type Investigations.

Anti-Protest Roots

In the late 1960s, U.S. legislators were seemingly obsessed with two young Black leaders of the Student Nonviolent Coordinating Committee. Their names, Stokely Carmichael (Kwame Ture) and H. Rap Brown (Jamil Abdullah Al-Amin), were frequently mentioned in the Congressional Record as legislators debated passing a federal anti-riot law and the FBI pursued them relentlessly.

After King was assassinated, cities across the nation burned, and Washington, D.C., erupted into rioting that came within blocks of the White House. One week later, President Lyndon B. Johnson signed into law the Civil Rights Act of 1968, which outlawed discrimination in housing. It was part of a large legislative package that included a set of laws criminalizing civil disturbances that stemmed from conservative legislators’ anxieties over activists like Brown and Carmichael.

This included the “H. Rap Brown Law,” which broadly criminalizes inciting a riot and was famously used against the Chicago Seven. At least 14 people from last year’s uprisings have been charged under the law. One, Shamar Betts, has been in detention since June 2020 for calling for a riot on Facebook; he pleaded guilty to the charge in February 2021. Betts faces a five-year prison sentence and more than $2 million in fines and restitution. The incitement charge hasn’t been deployed against any Capitol defendants, according to data from the Prosecution Project.

The Civil Rights Act of 1968 also included the civil disorder law under which Pugh and about a quarter of Capitol defendants were charged. At least 55 people were charged under the law following last year’s uprising, with 19 of those cases based in Portland, Oregon.

For one of those Portland defendants, lawyers in the Office of the Federal Public Defender in Oregon collaborated on a motion to dismiss the charges that called attention to the late Sen. Russell B. Long — the architect of the civil disorder law, who disdained the civil rights movement — as evidence of the law’s anti-protest roots. They shared the motion’s language with other defense lawyers, including Armstrong, Pugh’s attorney, who filed a motion to dismiss Pugh’s indictment in January.

In response to Pugh’s motion, the Justice Department sent prosecutor Michael Dittoe from the department’s National Security Division, normally assigned to the division’s Counterterrorism Section, to one of her pretrial hearings in April. It was an unusual move; The Intercept and Type Investigations reviewed six other anti-rioting cases in which nearly identical motions to dismiss were filed, but only in Pugh’s case did the federal government file a notice of attorney appearance for a prosecutor who specializes in counterterrorism.

The law is “racially neutral,” argued Dittoe, who didn’t respond to multiple messages seeking comment. The District Court in Southern Alabama agreed and denied Pugh’s motion. It became a useful ruling for the department, which then submitted the court’s opinion to the U.S. District Court for the District of Delaware to bolster its case against a person accused of violating the law by throwing a brick into a police car the weekend following George Floyd’s murder.

It’s possible that the Justice Department saw Pugh’s case as one that could establish a legal precedent, according to McCord. She pointed to the memo sent to prosecutors in March calling for a broad view of domestic violent extremism as a possible reason why the National Security Division intervened in Pugh’s case, as opposed to letting the local U.S. attorney’s office handle it.

“If in the course of its new and expanded authority over domestic violent extremist-related cases it has been doing some research behind challenges to [the law], it could have just been bringing in the person who had expertise [in that argument],” McCord said.

A Rhetorical Cudgel

In closing arguments at Pugh’s trial, federal prosecutors made it clear that they viewed Pugh as a violent actor. But it’s not clear whether they saw her as a domestic violent extremist, in part because the Justice Department hasn’t provided clarity on what its newly broad view of domestic violent extremism includes.

Internal FBI documents from 2019 indicated that the bureau was tracking what it labels “Racially Motivated Extremism,” which generally includes “White Racially Motivated Extremism” and “Black Racially Motivated Extremism” — the latter including attacks against law enforcement due to “perceptions of police brutality against African Americans.” The designation was an updated version of an earlier one, “Black Identity Extremist,” which had been used since at least 2015, according to Myaisha Hayes, campaign strategies director at MediaJustice.

The Biden administration has affirmed its focus on “racially or ethnically motivated violent extremists” but hasn’t publicly declared how it divides this designation into subcategories. In response to questions, the FBI sent a document on domestic terrorism from last November. It acknowledged using the category for Black people as late as May 2020 in a letter to the House Committee on Homeland Security.

The Justice Department has sometimes been loose with the phrase “domestic terrorism,” particularly after January 6. The memo from March directs prosecutors to designate any cases that fit the legal definition of domestic terrorism as domestic violent extremism and tasks the Counterterrorism Section with closely following all DVE-designated cases.

The Justice Department’s tool of choice for prosecuting terrorism cases involving international groups like Al Qaeda or ISIS, the material support statute, has been used sparingly against domestic terror suspects since September 11. The vast majority of the people charged in last year’s unrest, of any ideology, have not been prosecuted using the statute.

Instead, the designation was used as a rhetorical cudgel. Trump called perpetrators of property destruction in the week after Floyd’s murder “terrorists.” And according to data from the Transactional Records Access Clearinghouse, a data-gathering organization at Syracuse University, individual U.S. attorneys labeled their own cases as domestic terrorism in record numbers last year, with some heated rhetoric showing up in court proceedings.

“A violent, extreme act of domestic terrorism was committed,” argued a U.S. attorney last November at a pretrial hearing for Delveccho Waller, a man in Georgia who pleaded guilty in federal court to conspiracy to burn a police car after one of his co-conspirators confessed and said Waller was in on the plan.

Flaming police cars and buildings emerged as potent symbols following Floyd’s murder and spread quickly across the country. The Justice Department responded by bringing at least 111 arson cases in which it said it had an interest; at least 58 have resulted in some sort of conviction, while at least 38 are still awaiting trial. Arson is a federal charge stemming from a 1970 anti-racketeering law; only 0.004 percent of the U.S. Marshals Service’s arrests from October 2010 to September 2020 were for arson charges.

Court documents for dozens of arson cases arising from the racial justice protests reveal virtually no references to extremist or domestic terror groups. Some of the defendants were simply down and out, swept up by a collective fury throughout the spring and summer.

The FBI arrested Shawn Jenkins nearly five months after he threw a Molotov cocktail at some police cars while high on PCP in the Bronx. Jenkins, a father of five, was living on a friend’s couch and struggling with substance use after losing a job during the economic shutdown and missing a stimulus check. He’s serving a 40-month sentence after pleading to a lesser firearms charge. While in pretrial detention, Jenkins contracted Covid-19, as did Waller.

Like Waller and Jenkins, Victor Devon Edwards in Minneapolis was sent to pretrial detention after being charged with arson for allegedly setting a fire inside Target headquarters after mistakenly believing that police had killed a Black man. On August 12, a jury found Edwards guilty of arson as well as inciting a riot, a violation the H. Rap Brown Law. He faces a maximum of 25 years in prison. High potential sentences are a huge reason 97 percent of federal cases are resolved by plea, according to a 2018 report by the National Association of Criminal Defense Lawyers.

The Intercept and Type Investigations confirmed the race of approximately half the people charged with either civil disorder or arson against nonfederal targets in connection with the protests. Of those defendants, more than half are Black. Several legal advocacy groups have alleged racial bias in the federal government’s charging decisions.

In early June, the National Lawyers Guild sent a letter to the White House on behalf of 90 other organizations, mostly criminal justice reform-oriented, asking Biden and Garland to drop 350 cases against “Black Lives Matter protesters” filed under Trump, arguing that they “would amount to little more than perpetuating the racism that you repeatedly spoke out against on the campaign trail and during your confirmation hearings, respectively.”

The White House had yet to respond to the guild’s letter at publication time.

Bolstering Federal Authority

In the wake of the January 6 attack, legislation introduced in the House and Senate by Democrats would create a domestic terrorism office within the Justice Department’s Counterterrorism Section charged with prosecuting such acts. Counterpart offices would also be housed in the FBI and Department of Homeland Security to collect intelligence. The Biden administration has said it is “examining” the need for such laws but hasn’t endorsed either.

The legislation appears motivated by January 6 and the threat of far-right violence, but there are indications that if a bill reached the president’s desk, there would be enormous pressure to amend it beforehand to explicitly acknowledge perceived left-wing attacks.

“We’re not serious about tackling domestic extremism if we only focus on white supremacy movements, which isn’t the only ideology that’s responsible for murders and violence,” said Sen. Chuck Grassley, R-Iowa, the ranking member of the Senate Judiciary Committee, during a hearing in March. Several times, he suggested that protests and unrest from 2020 were more threatening than January 6.

The comparison is in line with federal law enforcement’s priorities. The FBI has a long history of ignoring threats from the hard right while devoting significant resources to other ideologies with far lower body counts, according to Michael German, a fellow with the Brennan Center for Justice’s Liberty and National Security Program and a former FBI agent.

“If Congress passes a broad new statute, the FBI will continue prioritizing less violent groups and less violent people, and nothing will change — just that they would have more success in prosecuting individuals for protest activity and other nonviolent civil disobedience,” German said.

Pugh’s case seems to neatly capture these fears. Though she had no known ties to any political or extremist groups, her case received significant attention from the same office that would be empowered by a new domestic terrorism law.

Armstrong, her attorney, had hoped to avoid a trial. He initially thought she would make a good candidate for a diversion program.

“We have a 21-year-old Black female client with no record, she’s never been arrested, this was less than a week after George Floyd died,” Armstrong said in March.

This past June, Pugh was arrested for public intoxication and disorderly conduct. The federal judge allowed her to remain released on bond, but she spent three weeks in a Mobile jail after a municipal judge revoked the bond that court had granted after her arrest in May 2020. She was released on July 12 with time served on an array of municipal charges.

Pugh still faces federal prison time for breaking the police car window; her sentencing is August 19. Meanwhile, the FBI appears set on pursuing similar cases in the future.

During an April House hearing on domestic violent extremism and terrorism, the FBI’s executive assistant director for the National Security Branch, Jill Sanborn, referencing January 6, said that the bureau would continue to “aggressively pursue those who engage in violent criminal activity carried out under the guise of a protest.”

This story was produced with support from the Puffin Foundation.