Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…
I think there were two moments that played a big role in the protests gaining the momentum they did, both occurring Friday. One was when Hennepin County declined to charge the other four officers alongside Derek Chauvin. The other was Trump’s inciting cite to racism hall-of-famer Miami police Chief Walter Headley’s infamous ‘looting and shooting’ comment.
Perhaps this weekend plays out precisely as it did regardless, but days later they seem like missed opportunities. Numerous other circumstances contributed to this moment being bigger than the last moment. The video of George Floyd’s murder wasn’t exactly a Rorschach test, unless it was a Rorschach test in which everyone pretty much only saw a white police officer slowly and disinterestedly killing a black man over a suspected forged $20 bill. The country was and continues to be under a tremendous public health stress, not to mention the record unemployment caused by and consequently compounding that stress.
But it’s hard to imagine a president less suited to calm this country at this particular moment — one who reliably spouts racist tropes and often expressly endorses police brutality. It’s nearly to Trump’s credit that he crawled into a bunker this weekend (literally, as it turned out) and charitably refrained from further encouraging police officers to commit extra-judicial killings in response to property crimes.
I think the fact that he’s thus far declined to go on TV and deliver a speech, as most presidents by now would have done, is evidence that this weekend didn’t play out as he expected, and perhaps an awareness that he may have been its catalyst. The size and scope of the protests worry him because the populist in him only fears numbers.
But he’s working on a narrative and it appears it will involve turning Antifa into the single cause terrorist boogeyman. He’s expressed that he’s going to label Antifa a terrorist group despite the lack of any mechanism to do so, as Antifa isn’t a foreign organization. Antifa isn’t even really an “organization” so much as a set of agreed-upon ideas (most of which I and most people agree with), which smaller decentralized groups can and do pick up and run with. Like 4Chan and Anonymous, they’re leaderless. They don’t issue membership cards.
Slapping a terrorist label on any domestic group presents a number of unconstitutional dangers, but especially so when the group is so amorphous as to defy description. If no one is truly a “member,” then, from the state’s point of view, everyone can be a member and prosecuted as a terrorist, entirely circumventing due process.
It’s also worth mentioning that even the most extreme boogeymanned depiction of Antifa falls short of most accepted definitions of “terrorism,” and the eagerness to label them as such raises the obvious question about how domestic white supremacist groups that endorse violence against people could escape similar designation. And take a second to appreciate the meaningful difference between normatively describing a group’s actions as terroristic, which can be fair or not given particular circumstances, and the state designating a domestic group as “terrorists.” Only the latter raises core constitutional concerns.
Whether the president’s intention is to do an end-around on due process, I’ll decline to care because it doesn’t ultimately matter where the effect is the same. Labeling a domestic group (or “group”) as terrorists is a fascist impulse and makes Antifa’s point for them.
