Looks like Donald Trump has had enough of the attempts to tear down statues in Lafayette Park. So far Andrew Jackson has managed to survive, but not all such monuments have been so fortunate. This morning, Trump announced that he would “authorize” the prosecution of anyone attacking or vandalizing monuments on federal property, with “no exceptions.”
Is this exceptional? In one way, yes …
Strictly speaking, Congress authorized the arrests of people who attack or vandalize monuments or memorials. The law cited by Trump passed in 2003 and made it a federal felony to do so on federal land at any time, or to cross state lines to attack any other memorial. The only exceptional part about this is the actual political will to enforce the law, which at the moment seems singularly lacking in other jurisdictions.
Trump must have gotten buttonholed by Sen. Tom Cotton (R-AR), who sent a letter yesterday to Attorney General William Barr demanding enforcement of the law. Cotton also raised the issue of the older Anti-Riot Act, which Congress passed in the last era of great social upheaval, and aimed specifically at those crossing state lines to foment violent unrest:
On Friday, this mobocratic spirit reached an absurd conclusion with the tearing down of a statue of Ulysses S. Grant in San Francisco. That would be General Grant, the commander of the Union forces, who destroyed the Confederate Army and whose very initials captured his tenacious, unrelenting approach: “unconditional surrender.” And it would be President Grant, the statesman who smashed the Ku Klux Klan, signed the first major civil-rights legislation, and presided over passage of the Fifteenth Amendment. When the mob tears down a statue of U.S. Grant, it’s not about the Civil War-it’s because they hate America.
And that’s just one example. Elsewhere, mobs have also destroyed monuments to George Washington, Francis Scott Key, Saint Junipero Serra, and Christopher Columbus, among others. It’s past time to stop the mob; these vandals should be prosecuted to the fullest extent of the law. Unfortunately, local authorities, who normally would prosecute such crimes, have proven unwilling in many cases to uphold the rule of law. In some cities, it appears that feckless politicians have directed police to stand idly by while mobs rampage.
Thus, I urge the Department of Justice to bring charges against these criminals. They aren’t exactly criminal masterminds, typically filming their crimes and posting the videos on social media. Federal laws such as the Anti-Riot Act and the Veterans Memorial Preservation and Recognition Act should cover some crimes. Other federal laws may also apply.
Cotton’s point on “criminal masterminds” has already been taken by the DoJ. They’re scouring social media for video evidence of crimes, and have already made a handful of arrests along those lines. Those crimes involved commercial property rather than memorials, for the most part, which means the Anti-Riot Act would apply best — although so far it’s not clear that the DoJ has included it in any indictments yet.
Perhaps the most famous application of the Anti-Riot Act came after the infamous 1968 Democratic convention in Chicago. The seven men accused of organizing the violent demonstrations got convicted under the Anti-Riot Act, but later had their convictions reversed on appeal. The Department of Justice would probably reserve its use for any organized leaders of such riots who cross state lines, but it is a fairly broad statute that doesn’t necessarily include organizing as a sole predicate. Even those who “participate in” or merely “encourage” a riot after crossing state lines could theoretically get convicted under the Anti-Riot Act, although whether a court would uphold it is another matter.
At any rate, the DoJ has been “authorized” to pursue such crimes for almost two decades in one instance and over five decades in the other. Trump’s tweet isn’t an EO — it’s a statement of political will, or at least a declaration of prosecutorial priorities. Unfortunately, the will to enforce the law seems lacking in places like Seattle and in New York, where Andrew Cuomo doesn’t see anything wrong with mob nihilism:
"I don't even know what the president's guidance is. People are making a statement about equality … against slavery. I think those are good statements." pic.twitter.com/FqdzzTQHz5
— TODAY (@TODAYshow) June 23, 2020
The problem isn’t with people making “statements.” “Statements” don’t destroy public property. The problem is with mobs taking upon themselves decisions that should be made by the entire community, and elected officials capitulating to those mobs rather than enforce the law. If we’re now making decisions by mob rule, why do we need governors and mayors at all anymore?
Update: This isn’t much of a surprise, either:
I think that much had already been made clear, but the explicit warning about force is certainly notable. The mayor of Portland would approve, anyway.