Trump’s Attempt to Brand Anti-Fascism as Terrorism Is on Trial

FORT WORTH, Texas — The verdict in a trial now underway in Texas has stakes that go well beyond the fate of nine defendants: whether or not the Trump administration can brand self-identified anti-fascists as “terrorists.”

If the Justice Department prevails at trial, the results could be sweeping, potentially allowing the department to punish protesters en masse if a demonstration suddenly turns violent.

The case itself didn’t start as something so momentous, or even clearly tied to any kind of terrorism at all. It began with fireworks outside an immigration jail on July Fourth in the small city of Alvarado.

Demonstrators shouted into a bullhorn outside of the Prairieland Detention Center, while one spray-painted “fuck you pigs” on a guard shack and another slashed the tires of a detainee transportation van. When a police officer arrived and drew his gun on one of the fleeing protesters, Benjamin Song, a Marine-turned-activist toting an AR-15, allegedly shot first. The officer fired his pistol three times in the dark, hitting nothing. Song kept shooting — then escaped, only to get caught weeks later in Dallas.

Police arrested nine protesters on the scene as they tried to flee on foot and by car. The federal case originally filed against all but one was straightforward: “attempted murder of a police officer.” But the case took on a completely different path after an unrelated event some 1,000 miles away: the assassination of right-wing influencer and organizer Charlie Kirk.

On Sept. 22, days after blaming the assassination on anti-fascists, President Donald Trump classified Antifa as a “domestic terror organization.” That legal designation led to the national security presidential memorandum known as NSPM-7, which deployed the nation’s powerful joint terrorism task forces against anti-fascists and ordered the attorney general to crack down on “civil disorder” as “domestic terrorism.”

Weeks later, on Oct. 15, the U.S. Attorney’s Office filed an indictment accusing the Prairieland Detention Center protesters of “providing material support to terrorists,” which carries a 15-year prison sentence. By December, nine of the protesters were hit with terrorism charges along with rioting, using explosives and attempted murder of federal officers.

Six who either showed up at the protest, helped hide Song, or participated in a Signal chat have pleaded guilty to terrorism charges.

Court filings describe the group as an “antifa cell.”

“This wouldn’t be a terrorism case if it weren’t for that memo,” said one defense lawyer involved in the case who spoke on background, citing the ongoing trial, which is expected to stretch into mid-March. Four other defense lawyers on the case echoed the sentiment.

****

The federal government has described what happened last summer as a “coordinated attack” against an Immigration and Customs Enforcement detention facility and “attempted murder” of two private contractor corrections officers and the city police officer who raced to the scene. They point to Song allegedly yelling “get to the rifles!” just before gunfire broke out, with a bullet tearing into Lt. Thomas Gross’ upper left shoulder. (He has since returned to duty and testified at the trial last month.) Prosecutors say Song was the only shooter that night aside from Gross, who returned fire.

The defense is arguing a different story: one of a loud protest gone wrong.

The group had planned through texts and meetings to set off fireworks on July Fourth on the residential neighborhood street outside the Prairieland Detention Center — intended as a show of solidarity for the estimated 1,000 migrants held there.

Speaking on the phone from behind bars in solitary confinement at the Tarrant County jail, defendant Autumn Hill told NOTUS she and her friends wanted to light fireworks for immigrants who “don’t necessarily get to be seen by other people as Americans.”

“We wanted them to understand that, ‘You belong here. … You’re one of us, you’re part of us,’” she said. “I would describe what happened on July Fourth as a protest that ended in tragedy for what seems to me — now that I’ve seen more of the evidence at trial — for totally avoidable reasons. I don’t think anybody had to get hurt on the night of July Fourth. And it certainly wasn’t our intention to hurt anybody.”

Meagan Morris, also speaking on a phone call from the jail, where she is held separately, said she “hopes the jury sees through that it’s just a political prosecution.” Morris was criminally charged for participating in the protest, but didn’t leave her van that night.

“If we win, I think it shows that Trump’s mandate is not working, that the people understand that you can’t criminalize, you know, First and Second Amendment-protected activities. And I think if we lose, then … a lot of the country is OK with what’s going on. And it will be a much darker time, it’ll just signify a much increased crackdown on political opposition and free speech,” she said.

*****

Matt Rourke/AP

The political tension in this trial is at a fever pitch.

U.S. District Judge Mark Pittman ruled last month that defendants can’t claim self-defense against an officer who pulled his gun on them. Activists monitoring the case are convinced that Pittman — who is tied to the Federalist Society and was the Trump-appointed judge who initially struck down the Biden administration’s student-loan debt-forgiveness plan — is sharply tilted toward the prosecution.

Pittman held a previously unreported private meeting last week with former Attorney General Bill Barr, who has railed against “far left extremist groups and anarchic groups using Antifa-like tactics” in 2020. Speaking to NOTUS hours after the meeting, Barr said he knew about the antifa case but claimed he was merely “getting a tour of the courtroom” and hadn’t discussed the trial with the judge.

Those on the protesters’ side call the case a return of the anti-communist Red Scare, pointing to the way the FBI immediately focused on the group’s shared ideology — seizing their printing press and anarchist zines, making much of their anti-Nazi stickers and political slogans — and the way a SWAT team stormed their house in suburban Dallas. According to the four remaining house occupants, FBI agents repositioned the occupants’ transgender pride flag before snapping an evidence photograph that made their living room look like an underground paramilitary base of operations.

NSPM-7, the national security memorandum, specifically targeted what it called an antifa “rallying cry” of “anti-Americanism, anti-capitalism” and “extremism on migration, race, and gender.” To the Prairieland defendants, three of whom are transgender or nonbinary and several of whom come from immigrant families, the words seemed to be aimed directly at them — a sentiment shared through interviews with family members and friends.

“It’s like the communism scare,” said Robert Keating, a local defense lawyer monitoring the case. “But the difference there is that there was actually an organization, rather than just an ideology. And now it’s just anybody who doesn’t agree with the administration.”

The crux of the case hinges on “Pinkerton liability,” the notion that everyone in a group can be blamed for the violent action of a single member.

“Strict liability based on ideology is new,” Keating said. “These are not people who are part of a militia or some organization. These are all just people who think ICE is doing some fucked-up stuff.”

To make their case, prosecutors at the trial are pointing to two chats on the encrypted messaging app Signal. In one chat, the protesters widely shared their general plans in a flyer to 200-plus participants; in the other, smaller one, a core group spoke more freely about the night’s plans.

Some of the texts appear damning. An unidentified person who went by “Sasha” wrote, “Normalize violent resistance.” Song, who goes by “Champagne” in the chat, suggested bringing rifles in a hand-drawn wagon, because, they reasoned, “Cops are not trained or equipped for more than one rifle so it tends to make them back off.”

Other texts show that some in the group, particularly those who didn’t bring any weapons or left them in their cars, were more interested in less dramatic tactics.

“Noise demos outside of jails are really dope for folks inside and low risk,” wrote Ines Soto, who went by “N” and is now among those on trial.

Responding to some cross-talk about people getting the jitters, Nathan Baumann wrote, “So if you’re going to go out be prepared so you can be confident.”

In November, Baumann pleaded guilty to the terrorism charge and is now one of five cooperating witnesses. Another is Lynette Sharp, a 57-year-old accused of helping hide Song while they were on the run from police. Her friend James Barker-Murphey said she chose to give up fighting because “she doesn’t want to die in jail” and needs to get back to caring for her autistic child.

****

There’s nothing new about the idea that the government can charge every protester with taking part in some kind of vast conspiracy.

Steven Cash, a national security professional who was a lawyer for the Senate Judiciary and Intelligence committees after 9/11, points to half a millenium of Anglo-American jurisprudence — and an equally long history of scholars warning about that prosecution method’s threat to public speech.

Cash described his own experience in government as “wrestling” over “how to equip the government to attack terrorism without letting it be abused against those merely criticizing the government.”

“What we’re seeing now is an administration that has embraced the abusive side,” he told NOTUS.

What’s novel now is that federal prosecutors in Texas are taking the model used against al-Qaida and ISIS and deploying it on Americans. To convince jurors that Islamists were guided by an overarching ideology, Cash said, prosecutors in those cases pointed to literature like the Islamic State’s English-language magazine “Dabiq” or al-Qaida’s “Inspire.” Under the explicit directives of NSPM-7, the DOJ can target anything deemed “anti-Americanism.”

“That’s what’s so scary here. This is the first time I know of that the executive branch has said, ‘We’ll use this charge if you disagree with the president,’” Cash said. “We’re on untried ground.”

Early in the Texas case, prosecutors separated the dozen-plus arrested into distinct groups: “printers and publishers,” “agitators and instigators” and identified Song as the so-called “leader” of the bunch.

Assistant U.S. Attorney Shawn Smith, the lead prosecutor in the case, told a magistrate judge last fall that protesters’ chants are “not just words.”

“It’s not a sign that ‘All Cops Are Bastards.’ That’s not where they stop,” he said. “They actually believe that. They truly believe that ‘Blue Lives Don’t Matter.’”

Smith questioned why protesters would show up with individual first aid kits meant to stop rapid bleeding from gunshot wounds and stuff their phones in special bags meant to block all signals.

“They were all wearing black. They had rifles. They had body armor. They had IFAKs. They left their phones, put it in a Faraday bag. They’re using walkie-talkies to communicate. Why on Earth would they do that?” Smith asked.

These are questions he now hopes will convince a jury of 12 Texans that the nine defendants were revolutionaries on a mission to kill.

The government’s chosen expert on antifa isn’t one of the many domestic extremism analysts at the FBI or Department of Homeland Security, but Kyle Shideler, who works at the Center for Security Policy — an anti-Muslim think tank. He was a 2017 fellow at the Claremont Institute alongside conservative activists Christopher Rufo and James O’Keefe. The bulk of Shideler’s published work on antifa is contained in a single book, “Unmasking Antifa,” published by his current employer in 2020.

When the government drew jurors’ attention to Maricela Rueda’s jail call to her mother in Spanish after she was arrested at the protest, prosecutors relied on Ulysses Avalos, an FBI agent who admitted he’s not a certified translator. Spanish speakers in the pews reeled when he admitted he couldn’t accurately assess a traditional rhyme sung to children, “Sana, sana, colita de rana.”

“I’m not sure I can answer that,” he said. “I recognize the word ‘frog,’ yes.”

In court, jurors heard about SWAT raids on half a dozen homes belonging to protesters and their friends. Investigators seized anarchist leaflets freely available online with titles like “Insurrectionary Anarchy – Organizing for Attack” and “Direct Action: A Guide.” FBI Special Agent Rebeccah Chen testified that her search of a home turned up “anti-ICE, anti-police things.” Kasey Bennett, an FBI agent on the counterterror squad, acknowledged that the literature isn’t illegal but argued that “it shows a joint ideology.” Smith, the prosecutor, said the reading collection “demonstrates motive and intent.”

But FBI agents on the case have struggled in the trial to show an understanding of that ideology. Half a dozen agents claimed they never even read the pamphlets they picked up.

Every FBI agent, police officer and crime scene technician has conceded on cross-examination by defense lawyers that it’s not illegal to own the guns, handheld radios, medical kits and leftist literature the prosecution has spent weeks presenting in hundreds of evidence photos. And the at-times thorny probing of ideology during the trial keeps returning to variations of an exchange between defense lawyer Patrick McLain and the evidence-collecting FBI Agent Megan Woodruff.

“Do you see anything bad about an image of someone throwing a Nazi symbol in a waste basket?” he asked.

“Personally? No,” she smiled.