# Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR46829 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** July 2, 2021 - **Citation:** R46829 ## Text Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues July 2, 2021 Congressional Research Service https://crsreports.congress.gov R46829 SUMMARY Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues R46829 July 2, 2021 Peter G. Berris Federal statute defines domestic terrorism to include dangerous criminal acts intended to Legislative Attorney intimidate or coerce a civilian population or to influence or affect government policy or conduct within the jurisdiction of the United States. Despite the federal statutory definition, no federal Michael A. Foster criminal provision expressly prohibits “domestic terrorism.” Nevertheless, numerous federal Legislative Attorney statutes offer prosecutors options in charging violent and destructive conduct consistent with the statutory definition of domestic terrorism. Some of these statutes can be characterized as Jonathan M. Gaffney expressly focused on terrorism, listing criminal offenses to include, among others, providing Legislative Attorney material support or resources to terrorists and engaging in terrorism transcending domestic boundaries. Other generally applicable federal criminal laws may also be relevant to domestic terrorism prosecutions. For example, depending on the defendant’s motive, target, or means, various federal criminal statutes protecting certain property or persons, prohibiting violence motivated by particular biases, or criminalizing possession or use of specific weapons may apply. Depending on the circumstances, prosecutors may also rely on accomplice liability or inchoate offenses such as attempt, conspiracy, or solicitation to charge conduct consistent with the definition of domestic terrorism. Beyond applicable offenses, domestic terrorism may be relevant in federal sentencing, either through specific statutes that authorize additional penalties in the domestic terrorism context or through the United States Sentencing Guidelines, which include an upward adjustment for offenses connected to terrorism. Civil disturbances over the past year have reportedly heightened interest in laws governing domestic terrorism, a topic that has long been a matter of congressional concern. As a number of proposals introduced in the 116th and 117th Congresses reflect, Congress remains interested in additional legislation addressing domestic terrorism, and any legislative action in this area would take place against the backdrop of a broader discussion of potential policy concerns and constitutional considerations. For instance, some observers dispute whether there is a gap in the existing federal domestic terrorism legal regime that leaves some violent or destructive conduct outside the scope of federal jurisdiction, and, if so, what new criminal provisions would be required. Additionally, certain constitutional constraints, such as First Amendment protections, Fourth Amendment restrictions on government searches, and broader federalism-based limitations on federal jurisdiction, may be relevant should Congress consider new domestic terrorism law. Congressional Research Service Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Contents Introduction ..................................................................................................................................... 1 Federal Criminal Terrorism Laws.................................................................................................... 2 Material Support: 18 U.S.C. §§ 2339A & 2339B ..................................................................... 3 Material Support to Terrorists Under 18 U.S.C. § 2339A................................................... 3 Material Support to Foreign Terrorist Organizations Under 18 U.S.C. § 2339B................ 7 Terrorism Transcending National Boundaries: 18 U.S.C. § 2332b ........................................... 9 Remaining Chapter 113B Offenses .......................................................................................... 11 Other Federal Criminal Laws Applicable to Domestic Terrorism ................................................. 14 Substantive Criminal Laws ..................................................................................................... 14 Crimes of Violent Unrest .................................................................................................. 16 Crimes against Government Authority ............................................................................. 19 Crimes against Persons ..................................................................................................... 22 Crimes Involving Infrastructure or Federal Property ........................................................ 26 Hate Crimes ...................................................................................................................... 28 Crimes Involving Specific Weapons ................................................................................. 32 Crimes Involving Threats.................................................................................................. 37 Crimes Involving Computers ............................................................................................ 39 Inchoate and Accomplice Liability ......................................................................................... 41 Conspiracy ........................................................................................................................ 42 Attempt ............................................................................................................................. 42 Solicitation ........................................................................................................................ 43 Accomplice Liability ........................................................................................................ 44 Domestic Terrorism at Sentencing ................................................................................................ 45 Statutes with Terrorism-Related Sentence Enhancement Provisions ...................................... 45 Terrorism under the U.S. Sentencing Guidelines .................................................................... 47 Considerations for Congress.......................................................................................................... 49 Is there a Gap in Current Law? ............................................................................................... 49 Differences in Offenses and Sentences ............................................................................. 49 Differences in Intelligence Gathering ............................................................................... 51 Need for a Separate Domestic Terrorism Law .................................................................. 53 Constitutional Issues ............................................................................................................... 54 Federalism......................................................................................................................... 54 The First Amendment ....................................................................................................... 55 Fourth Amendment ........................................................................................................... 60 Legislative Proposals .............................................................................................................. 62 117th Congress.................................................................................................................. 62 116th Congress.................................................................................................................. 63 Tables Table 1. Comparison of Domestic Terrorism Legislation.............................................................. 66 Congressional Research Service Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Contacts Author Information........................................................................................................................ 67 Congressional Research Service Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Introduction Domestic terrorism has been an issue of longstanding congressional concern.1 Occurrences such as the events of January 6, 2021, at the U.S. Capitol—which involved some conduct that federal law enforcement described as domestic terrorism2—have reportedly heightened congressional interest in the federal statutory regime governing domestic terrorism.3 Federal statute defines domestic terrorism as: [A]ctivities that-(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B) appear to be intended-(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States.[4] Although defined in federal law, there is no federal criminal provision expressly prohibiting “domestic terrorism,” as the terms defining domestic terrorism are not elements of criminal offenses.5 Conduct consistent with the definition of domestic terrorism may still be a federal 1 See, e.g., Domestic Terrorism Prevention Act of 2017, S. 2148, 115th Cong. (2017); Establishing the Select Committee on White Supremacy and Domestic Terror Movements, H.R. 515, 115th Cong. (2017); Animal Enterprise Terrorism Act, P.L. 109-374, 120 Stat. 2652 (2006); Antiterrorism Act of 1993, H.R. 1438, 103rd Cong. (1993); Terrorism Prevention and Protection Act of 1993, H.R. 1301, 103rd Cong. (1993); see also infra, § “Legislative Proposals.” 2 See, e.g., FBI Oversight/Current Security Threats: Hearing Before the Senate Judiciary Committee, 117th Cong. (Mar. 2, 2021) (statement of Christopher Wray, Dir., FBI) [hereinafter FBI Oversight Hearing] (describing some conduct committed during the events of January 6 as domestic terrorism). 3 See, e.g., Greg Myre, An Old Debate Renewed: Does The U.S. Now Need A Domestic Terrorism Law?, NPR (Mar. 16, 2021), https://www.npr.org/2021/03/16/976430540/an-old-debate-renewed-does-the-u-s-now-need-a-domesticterrorism-law; Karoun Demirjian, Bipartisan Support Emerges for Domestic-Terror Bills as Experts Warn Threat May Last ‘10 to 20 Years’, WASH. POST (Feb. 4, 2021), https://www.washingtonpost.com/national-security/capitol-riotdomestic-terror-legislation/2021/02/04/f43ec214-6733-11eb-8468-21bc48f07fe5_story.html; Raquel Martin, Renewed Push in Congress to Pass Bill Targeting Domestic Terrorism, ABC NEWS (Jan. 27, 2021), https://www.abc27.com/news/renewed-push-in-congress-to-pass-bill-targeting-domestic-terrorism/. Such events have also prompted additional focus on domestic terrorism by the Executive Branch. See Attorney General Merrick B. Garland, Remarks: Domestic Terrorism Policy Address (June 30, 2021), https://www.justice.gov/opa/speech/attorneygeneral-merrick-b-garland-remarks-domestic-terrorism-policy-address (describing DOJ strategy for countering domestic terrorism as an “effort” that “comes on the heels of another large and heinous attack – this time, the January 6th assault on our nation’s Capitol”); see generally U.S. DEP’T OF JUSTICE, NATIONAL STRATEGY FOR COUNTERING DOMESTIC TERRORISM (June 2021). 4 18 U.S.C. § 2331(5). Unless noted otherwise, the term “domestic terrorism” as used in this report refers to conduct consistent with this definition. Law enforcement also use a number of other terms in contexts similar to domestic terrorism, such as “homegrown violent extremism.” Additional clarification on such terminology may be found in another CRS product. See generally CRS Insight IN10299, Sifting Domestic Terrorism from Hate Crime and Homegrown Violent Extremism, by Lisa N. Sacco. Various state laws may also prohibit domestic terrorism but are beyond the scope of this report. See Shirin Sinnar, Separate and Unequal: The Law of "Domestic" and "International" Terrorism, 117 MICH. L. REV. 1333, 1353-54 (2019). 5 CRS Legal Sidebar LSB10340, Domestic Terrorism: Some Considerations, by Charles Doyle. Congressional Research Service 1 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues crime, however, under numerous statutes prohibiting terrorism6 and other types of violent or destructive conduct.7 In addition, domestic terrorism may be relevant to the sentencing of those convicted of federal crimes.8 Any congressional consideration of additional legislation in the area of domestic terrorism—such as a criminal statute expressly prohibiting acts of domestic terror—would necessarily involve a broader discussion of potential policy concerns and constitutional constraints.9 For example, some observers have debated whether a gap exists in federal criminal law leaving certain acts of domestic terrorism beyond the scope of federal jurisdiction.10 Legislation seeking to address domestic terrorism also may implicate certain constitutional considerations, such as First Amendment protections of speech and association, Fourth Amendment restrictions on government searches, and broader federalism-based restraints on federal jurisdiction in general.11 This report provides an overview of federal criminal terrorism laws and analyzes the extent to which they might apply in the context of domestic terrorism. It next summarizes other generallyapplicable substantive criminal laws, including inchoate offenses such as conspiracy, which might impose criminal liability for acts considered domestic terrorism. This report then briefly describes how domestic terrorism could potentially impact federal sentencing outcomes. Next, the report discusses various considerations in enacting new domestic terrorism legislation, including the extent to which there may be a gap in federal laws applicable to domestic terrorism, as well as relevant constitutional limitations on additional legislation. It concludes with an overview of select legislative proposals introduced in the 116th and 117th Congresses. Federal Criminal Terrorism Laws Chapter 113B of Title 18 of the U.S. Code identifies certain federal criminal offenses under the heading of “terrorism.”12 Some of the provisions in Chapter 113B expressly relate to international conduct or “foreign” terrorist organizations, but many others can apply to conduct with either an international or domestic focus.13 Two of the principal criminal provisions in Chapter 113B 6 Infra, § “Federal Criminal Terrorism Laws.” 7 Infra, § “Substantive Criminal Laws.” 8 Infra, § “Domestic Terrorism at Sentencing.” 9 Infra, § “Considerations for Congress.” 10 Infra, § “Is there a Gap in Current Law?” 11 Infra, § “Constitutional Issues.” 12 As described infra, one of the offenses in Chapter 113B incorporates a larger list of federal crimes, many from other chapters, which are defined separately as “federal crimes of terrorism” if certain additional requirements are met. A federal crime of terrorism is defined as a listed offense that is “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(B); see id. § 2339A(a) (proscribing material support in connection with listed offenses, among other things). For instance, one offense found outside of Chapter 113B and included as a federal crime of terrorism concerns attacks on mass transportation systems. See id. § 2332b(g)(5)(B); id. § 1992. Many other federal criminal statutes also may be used to prosecute conduct meeting the definition of “domestic terrorism” in 18 U.S.C. § 2331(5) or the definition of “terrorism” in 28 C.F.R. § 0.85(l) (“Terrorism includes the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”). A number of the statutes found outside Chapter 113B are addressed infra, § “Other Federal Criminal Laws Applicable to Domestic Terrorism.” Inclusion on the list of federal crimes of terrorism has other legal implications and effects, such as constituting predicate offenses for other federal crimes like RICO violations, 18 U.S.C. § 1961(1), and extending the applicable statute of limitations. See id. § 3286. 13 E.g., 18 U.S.C. § 2332a (proscribing use of weapons of mass destruction); id. § 2339A (proscribing providing material support or resources in furtherance of certain federal crimes). Congressional Research Service 2 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues prohibit “material support,” which is either (1) knowing that such support will be used or intending that such support be used to commit violations of separate federal criminal statutes associated with terrorism14 or (2) where such support is of a designated foreign terrorist organization.15 Additional offenses in Chapter 113B address “acts of terrorism transcending national boundaries”16 and specific terrorism-related activities such as, among other things, possessing or using certain kinds of weapons17 or engaging in financial transactions with governments of countries that support international terrorism.18 This section provides an overview of the criminal offenses19 in Chapter 113B, focusing on the provisions that proscribe material support of terrorism and terrorism transcending national boundaries. Material Support: 18 U.S.C. §§ 2339A & 2339B Some of the most common20 federal charges in terrorism cases are the so-called “material support” offenses found in Sections 2339A and 2339B of Title 18 of the U.S. Code. Though both provisions use the term “material support or resources,” they have substantially different requirements in terms of the objects of such support and the mental state required to commit the crime, among other things. Broadly, Section 2339A prohibits providing support for specific terrorism-related criminal offenses, while Section 2339B prohibits providing support to foreign terrorist organizations. As such, Section 2339A can apply to conduct meeting the definition of domestic terrorism, depending on the applicable offense being supported, while Section 2339B may be viewed as being limited in scope to international terrorism.21 This report addresses both provisions for purposes of comparison. Material Support to Terrorists Under 18 U.S.C. § 2339A 18 U.S.C. § 2339A prohibits (1) providing “material support or resources”; (2) concealing or disguising “the nature, location, source, or ownership of material support or resources”; or (3) attempting or conspiring to so provide, conceal, or disguise material support or resources; while knowing or intending that the material support or resources will be used to prepare for or carry out a violation of at least one of over fifty predicate federal offenses or to prepare for or carry out the concealment of escape from such a violation.22 The statute defines “material support or resources” broadly as tangible or intangible property, services, or personnel (including the 14 Id. § 2339A. 15 Id. § 2339B. 16 Id. § 2332b. 17 E.g., id. § 2332h. 18 Id. § 2332d. 19 Several sections of Chapter 113B address matters such as, among other things, civil remedies for victims of international terrorism, id. § 2333, and requests for military assistance during emergency situations involving weapons of mass destruction, id. § 2332e. These and other non-criminal legal matters related to terrorism are beyond the scope of this report. 20 See HUMAN RIGHTS WATCH, ILLUSION OF JUSTICE: HUMAN RIGHTS ABUSES IN U.S. TERRORISM PROSECUTIONS 62-63 & n. 247 (2014), https://www.hrw.org/report/2014/07/21/illusion-justice/human-rights-abuses-us-terrorismprosecutions (concluding that material support charges constituted largest share of convictions in terrorism cases since September 11, 2001). 21 See MICHAEL GERMAN & SARA ROBINSON, BRENNAN CTR. FOR JUST., WRONG PRIORITIES ON FIGHTING TERRORISM 8 (2018), https://www.brennancenter.org/sites/default/files/2019-08/Report_Wrong_Priorities_Terrorism.pdf (describing “limited application of § 2339B to international terrorism cases”). 22 18 U.S.C. § 2339A(a). Congressional Research Service 3 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues person providing the support)23 and gives an inclusive list of examples such as currency, monetary instruments, financial securities, financial services, lodging, training,24 expert advice or assistance,25 safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, and transportation.26 In short, Section 2339A prohibits supporting in various ways the preparation for, commission of, or concealment of escape from commission of other, specifically listed terrorism-related offenses. As noted, the material support or resources must relate to a separate federal offense listed in the statute.27 According to one scholar,28 the predicate offenses in Section 2339A generally can be separated into three categories: (1) offenses “committed with particular weapons” (like explosives or nuclear weapons)29 or “tactics historically associated with terrorism” (such as hostage taking30); (2) offenses where there is a “distinct federal interest” in the target of violence (e.g., 23 18 U.S.C. § 2339B, which prohibits providing material support or resources to designated foreign terrorist organizations, contains a more specific definition of “personnel,” but at least one court has held that that definition does not apply to Section 2339A and that providing personnel under Section 2339A includes making available or furnishing individuals (including oneself) “for the purpose of actively preparing for or carrying out the crimes prohibited by the statute through some form of coordinated action.” United States v. Abu-Jihaad, 600 F. Supp. 2d 362, 400 (D. Conn. 2009); see also Estate of Parsons v. Palestinian Auth., 952 F. Supp. 2d 61, 68 (D.D.C. 2013) (finding Abu-Jihaad definition of “personnel” to be “compelling” and applying it in civil action). 24 “Training” is separately defined as “instruction or teaching designed to impart a specific skill, as opposed to general knowledge.” Id. § 2339A(b)(2). These and other definitions related to specific kinds of material support appear to have been enacted to address certain constitutional concerns, which are discussed in more detail infra, § “Constitutional Issues.” See also, e.g., Holder v. Humanitarian L. Project, 561 U.S. 1, 21 (2010) (noting “narrowing definitions” added to Section 2339A in upholding Section 2339B against constitutional challenge); United States v. Amawi, 695 F.3d 457, 482 (6th Cir. 2012) (“[A]lthough the conspiracy was closely related to, and indeed proved by, many of the defendants’ conversations about political and religious matters, the conviction was based on an agreement to cooperate in the commission [of] a crime, not simply to talk about it.”); United States v. Stewart, 590 F.3d 93, 115 (2d Cir. 2009) (acknowledging lack of dispute “that section 2339A may not be used to prosecute mere advocacy or other protected speech” under First Amendment but recognizing that speech integral to criminal conduct is unprotected). 25 “Expert advice or assistance” is separately defined as “advice or assistance derived from scientific, technical or other specialized knowledge.” Id. § 2339A(b)(3). 26 Id. § 2339A(b)(1). Medicine and religious materials are excepted from the definition. Id. More broadly, providing material support or resources is distinct from accomplice liability for a federal offense under 18 U.S.C. § 2. That provision establishes liability for anyone who “aids, abets, counsels, commands, induces or procures” the commission of a federal crime. Id. § 2(a). However, one court has noted that “proving that a person provided ‘material support’ requires more than merely encouraging or counseling someone to commit a crime,” which is all that is required for liability under Section 2. United States v. Abu Khatallah, 151 F. Supp. 3d 116, 142 (D.D.C. 2015). Accomplice liability is discussed more generally infra, § “Accomplice Liability.” 27 18 U.S.C. § 2339A(a). Almost all of the separate offenses listed in Section 2339A(a) are also included in the list of “federal crimes of terrorism” in Section 2332b(g)(5)(B), which is itself mostly incorporated for purposes of Section 2339A, though there are a few differences—for example, 18 U.S.C. § 1091, addressing genocide, is included as a predicate offense in Section 2339A but is not listed as a federal crime of terrorism under 2332b(g)(5)(B). Section 2339A, and the other material support provision in Section 2339B, are also included in the list of “federal crimes of terrorism” in Section 2332b(g)(5)(B) but are excepted from incorporation as predicate offenses for purposes of material support under Section 2339A, presumably to prevent the apparent redundancy of providing material support or resources for providing material support or resources. See id. § 2339A(a). 28 Sinnar, supra note 4. 29 E.g., 18 U.S.C. § 844(i) (proscribing malicious destruction of or damage to certain property “by means of fire or an explosive”); id. § 2332i (addressing acts of nuclear terrorism). 30 See id. § 1203. Congressional Research Service 4 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues killing a federal employee31 or attacking communication lines or systems32); and (3) offenses “with an international nexus” (such as conspiring to murder, kidnap, or maim persons abroad33). At least two commentators have examined the Section 2339A predicate offenses individually and concluded that the vast majority—fifty-one, to be precise—can apply to domestic terrorism.34 For instance, in 2018, a Florida resident mailed explosive devices to a number of government officials and public figures, ostensibly motivated by domestic political views.35 Among many other things, he was charged with multiple counts of using a weapon of mass destruction in violation of 18 U.S.C. § 2332a,36 which is a predicate offense listed in Section 2339A. Both the federal prosecutors and the judge in the case referred to the man’s actions as “domestic terrorism.”37 Thus, assuming the predicate offense for a Section 2339A charge is one that does not require an international nexus or conduct—like Section 2332a in the preceding example—“material support” under Section 2339A can include purely domestic conduct and/or U.S.-based ideologically motivated conduct.38 One who provides material support or resources under Section 2339A must, in order to violate the statute, do so “knowing or intending that they are to be used” in connection with one of the listed predicate offenses.39 This mens rea, or mental-state, requirement “extends both to the support itself, and to the underlying purposes for which the support is given.”40 In other words, the statute 31 Id. § 1114. 32 Id. § 1362. 33 Id. § 956(a)(1). 34 GERMAN & ROBINSON, supra note 21, at 5-6; AMY C. COLLINS, GEO. WASH. UNIV. PROGRAM ON EXTREMISM, THE NEED FOR A SPECIFIC LAW AGAINST DOMESTIC TERRORISM 12 (2020), https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/The%20Need%20for%20a%20Specific%20Law%20Against%20 Domestic%20Terrorism.pdf. 35 See Katie Honan, Scott Calvert & Arian Campo-Flores, Suspect in Letter Bombs: A History of Arrests and a Prior Bomb Threat, WALL ST. J. (Oct. 26, 2018), https://www.wsj.com/articles/suspect-in-letter-bombs-a-history-of-arrestsand-a-prior-bomb-threat-1540572060. 36 See United States v. Sayoc, No. 18-CR-820, 2019 WL 1452501, at *1 (S.D.N.Y. Mar. 28, 2019) (verdict). 37 See United States v. Sayoc, 388 F. Supp. 3d 300, 302 (S.D.N.Y. 2019) (imposing sentence); Press Release, Dep’t of Justice, Cesar Sayoc Pleads Guilty to 65 Felonies for Mailing 16 Improvised Explosive Devices in Connection with October 2018 Domestic Terrorist Attack (Mar. 21, 2019), https://www.justice.gov/opa/pr/cesar-sayoc-pleads-guilty-65felonies-mailing-16-improvised-explosive-devices-connection. 38 E.g., United States v. Looker, 168 F.3d 484 (4th Cir. 1998) (table op.) (involving commander of militia organization in West Virginia who discussed targets of violence in contemplated conflict between militia and federal government and ordered the manufacture of improvised explosive devices for sale to undercover FBI agent posing as broker for resale to terrorist organizations). As described supra, the definition of “domestic terrorism” in the U.S. Code requires that the conduct occur “primarily within the territorial jurisdiction of the United States” but does not speak to the source of the object or ideology. 18 U.S.C. § 2331(5). Thus, theoretically, even acts perpetrated in service of a foreigninfluenced ideology or transnational goals could fall within the statutory definition of “domestic terrorism.” See, e.g., Smith ex rel. Smith v. Islamic Emirate of Afghanistan, 262 F. Supp. 2d 217, 221 (S.D.N.Y. 2003) (“The acts of September 11 clearly ‘occurred primarily’ in the United States—indeed, they occurred entirely in the United States: airplanes owned and operated by U.S. carriers took off from U.S. airports and were in route to U.S. destinations when they were hijacked and crashed into U.S. landmarks.”). However, the FBI apparently views domestic terrorism as suggesting “ideological goals stemming from domestic influences, such as racial bias and anti-government sentiment.” CRS Insight IN11573, Domestic Terrorism and the Attack on the U.S. Capitol, by Lisa N. Sacco. In any event, although Section 2339A was “designed to punish activity connected to terrorism, an association with terrorism is not an element of the crime” itself. United States v. Abu Khatallah, 151 F. Supp. 3d 116, 139 (D.D.C. 2015). Thus, “criminal liability under § 2339A attaches regardless of any linkage to terrorism,” either domestic or international. Id. 39 18 U.S.C. § 2339A(a). 40 United States v. Mehanna, 735 F.3d 32, 43 (1st Cir. 2013). Congressional Research Service 5 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues imposes “an explicit specific intent requirement to further illegal activities,”41 meaning that the defendant must have intended, or at least known, not just that he or she was providing material support or resources but that the material support or resources would be used to facilitate a violation of one of the predicate offenses.42 In addition to the actual provision of material support or resources under Section 2339A, the statute proscribes attempts and conspiracies to do the same.43 These crimes are “inchoate,” meaning that they are “crimes on their way to becoming other crimes unless stopped or abandoned.”44 An attempt to violate Section 2339A requires (1) “intent to commit the object crime”45 (i.e., providing material support or resources with the requisite mental state) and (2) “at least one substantial step toward the actual commission” of the crime.46 So long as these elements are present, it is no defense to liability that completion of the crime would have been factually impossible—for instance, if the attempt was to provide material support or resources to what turned out to be undercover law enforcement officers.47 With respect to conspiracy, its “essence” is an agreement to commit an act in violation of the law.48 Conspiracies to commit federal crimes are proscribed under 18 U.S.C. § 371, which additionally requires that at least one of the conspirators commits an “overt act” to further the conspiracy.49 However, the conspiracy provision of Section 2339A does not carry an overt-act requirement, meaning that agreement to provide material support or resources with the requisite mental state is sufficient for liability.50 Some of the offenses listed in Section 2339A are themselves inchoate offenses—for instance, 18 U.S.C. § 956(a)(1) proscribes conspiracies to kill, kidnap, maim, or injure persons in a foreign country.51 Thus, Section 2339A can be used to punish a conspiracy to provide material support or resources in furtherance of a crime that is itself a conspiracy to take further unlawful action, and such a charge will not be deemed an impermissible “conspiracy to conspire.”52 41 United States v. Taleb-Jedi, 566 F. Supp. 2d 157, 179 (E.D.N.Y. 2008). 42 Cf. Holder v. Humanitarian L. Project, 561 U.S. 1, 17 (2010) (recognizing that Section 2339A “refer[s] to intent to further terrorist activity”). 43 18 U.S.C. § 2339A(a). 44 CRS Report R42001, Attempt: An Overview of Federal Criminal Law, by Charles Doyle. Attempt and conspiracy in relation to offenses that may be charged as domestic terrorism, as a general matter, are discussed infra, § “Inchoate and Accomplice Liability.” 45 United States v. Farhane, 634 F.3d 127, 145 (2d Cir. 2011) (involving attempt to provide material support or resources under Section 2339B). 46 United States v. Mehanna, 735 F.3d 32, 53 (1st Cir. 2013). 47 E.g., United States v. Suarez, 893 F.3d 1330, 1335 (11th Cir. 2018) (involving attempt to provide material support or resources under Section 2339B). 48 CRS Report R41223, Federal Conspiracy Law: A Brief Overview, by Charles Doyle. 49 See 18 U.S.C. § 371 (requiring at least one of the conspirators to “do any act to effect the object of the conspiracy”); Whitfield v. United States, 543 U.S. 209, 212 (2005) (acknowledging that Section 371 “expressly includes an overt-act requirement”). An overt act is an outward, physical manifestation of intent to effect the conspiracy’s object. See Overt Act, BLACK’S LAW DICTIONARY (11th ed. 2019). 50 E.g., United States v. Moalin, 973 F.3d 977, 1006-07 (9th Cir. 2020). A defendant charged with conspiracy may also be charged with the substantive crime, if completed, as well as with other “reasonably foreseeable” crimes of coconspirators committed in furtherance of the conspiracy. United States v. Henry, 984 F.3d 1343, 1355 (9th Cir. 2021) (quoting United States v. Long, 301 F.3d 1095, 1103 (9th Cir. 2002)); United States v. Abu Khatallah, 314 F. Supp. 3d 179, 188 (D.D.C. 2018). 51 18 U.S.C. § 956(a)(1). 52 United States v. Stewart, 590 F.3d 93, 118-19 (2d Cir. 2009). Congressional Research Service 6 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Violations of Section 2339A, including its attempt and conspiracy provisions, are punishable by fine, imprisonment for up to 15 years, or both.53 If death results, punishment increases to imprisonment for any term of years or for life.54 Material Support to Foreign Terrorist Organizations Under 18 U.S.C. § 2339B 18 U.S.C. § 2339B bears some similarities to Section 2339A, most notably in its core proscription of providing “material support or resources” and associated definitions, but other details of the two offenses vary considerably. Section 2339B prohibits “knowingly” providing, or attempting or conspiring to provide, material support or resources “to a foreign terrorist organization.”55 Thus, the focus of the statute is not on the use for which the support or resources are intended (as in Section 2339A), but on the recipient or intended recipient. The term “material support or resources” in Section 2339B has the same definition as under Section 2339A, including the sub-definitions of “training” and “expert advice or assistance.”56 Thus, material support or resources under Section 2339B broadly include tangible or intangible property, services, or “personnel.”57 However, Section 2339B includes additional provisions and definitions related to the proscribed conduct that have been added over time in light of concern that providing support to an organization may encompass advocacy or association protected by the Constitution.58 Specifically, the statute stipulates that although providing personnel may include providing oneself to aid a foreign terrorist organization, personnel must be provided “to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization.”59 As such, persons “who act entirely independently of the foreign terrorist organization to advance its goals” are not considered as “working under the foreign terrorist organization’s direction and control.”60 Section 2339B further makes clear that it is not to be “construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment,”61 and the Supreme Court has recognized that consistent with First Amendment limitations, providing a “service” to an organization connotes activity “performed in coordination with, or at the direction of,” the relevant organization.62 Accordingly, Section 2339B does not proscribe pure political speech, independent advocacy, or “mere association” with an organization—instead, it is limited to speech or conduct coordinated with, or at least directed to, the organization itself.63 53 18 U.S.C. § 2339A(a). Terrorism sentencing enhancements are discussed in more detail infra, § “Domestic Terrorism at Sentencing.” 54 18 U.S.C. § 2339A(a). 55 18 U.S.C. § 2339B(a)(1). Beyond the core criminal proscription, Section 2339B addresses a number of related matters that are beyond the scope of this report, including establishing a reporting requirement for financial institutions that hold funds for a foreign terrorist organization, establishing extraterritorial jurisdiction, structuring investigations, and protecting classified information. See id. § 2339B(a)(2)-(f). 56 Id. § 2339B(g)(4). 57 Id. § 2339A(b)(1). 58 Constitutional issues related to domestic terrorism, including First Amendment concerns, are discussed infra, § “Constitutional Issues.” 59 18 U.S.C. § 2339B(h). 60 Id. 61 Id. § 2339B(i). 62 Holder v. Humanitarian L. Project, 561 U.S. 1, 24 (2010) (noting that “[t]he use of the word ‘to’ indicates a connection between the service and the foreign group”). 63 E.g., United States v. Nagi, 254 F. Supp. 3d 548, 557-58 (W.D.N.Y. 2017); United States v. Elshinawy, 228 F. Supp. Congressional Research Service 7 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Material support or resources must be provided “to a foreign terrorist organization,”64 and the statute defines a “terrorist organization” as an organization designated under Section 219 of the Immigration and Nationality Act.65 That provision, codified at 8 U.S.C. § 1189, authorizes the Secretary of State to designate an organization as a foreign terrorist organization if he or she finds that (1) the organization is foreign, (2) the organization engages in terrorist activity or terrorism66 or “retains the capability and intent to engage in terrorist activity or terrorism,” and (3) “the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.”67 The remainder of Section 1189 sets out detailed procedures for designation, its effects, amendments to a designation, revocation of a designation by the Secretary or Congress, and review of a designation by the Secretary or the courts.68 A designation may not be challenged, however, in a criminal proceeding by a defendant who is alleged to have violated Section 2339B.69 Material support or resources under Section 2339B must be provided “knowingly,”70 and a clarifying amendment passed in 200471 elaborates that to meet this mental-state requirement, the defendant must have knowledge that the organization (1) is a designated terrorist organization (as described in the preceding paragraph), (2) “has engaged or engages in terrorist activity,” or (3) “has engaged or engages in terrorism.”72 The terms “terrorist activity” and “terrorism” are defined by reference to two separate statutes: 8 U.S.C. § 1182(a)(3)(B), which defines “terrorist activity” as “any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves” specific kinds of conduct including, among other things, hijacking or sabotage, assassination, or use of certain weapons with intent to endanger individual safety or cause substantial damage to property;73 and 22 U.S.C. § 2656f(d)(2), which defines “terrorism” as “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.”74 As it relates to the requisite mental state under Section 2339B, the import of these references is that liability depends on “knowledge about 3d 520, 536 (D. Md. 2016). Section 2339B also contains an exception to criminal liability “in connection with the term ‘personnel’, ‘training’, or ‘expert advice or assistance’ if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General,” though approval may not be given for material support “that may be used to carry out terrorist activity.” 18 U.S.C. § 2339B(j). 64 Id. § 2339B(a)(1). 65 Id. § 2339B(g)(6). 66 The terms “terrorist activity” and “terrorism” are defined in separate statutes, as described infra. 67 8 U.S.C. § 1189(a). The statute requires consultation with the Secretary of the Treasury and the Attorney General. Id. § 1189(d)(4). 68 See id. § 1189(a)(2)-(c). 69 See United States v. Ali, 799 F.3d 1008, 1019 (8th Cir. 2015); United States v. Afshari, 426 F.3d 1150, 1155 (9th Cir. 2005). 70 18 U.S.C. § 2339B(a)(1). 71 Holder v. Humanitarian L. Project, 561 U.S. 1, 12 (2010). 72 18 U.S.C. § 2339B(a)(1). 73 8 U.S.C. § 1182(a)(3)(B)(iii)(I)-(VI). The same statute separately defines the term “engage in terrorist activity” as participation in terrorist activity in various ways, e.g., preparing or planning it, soliciting funds or other things of value for it, or gathering information on particular targets for it. Id. § 1182(a)(3)(B)(iv). 74 22 U.S.C. § 2656f(d)(2). Congressional Research Service 8 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues the organization’s connection to terrorism,” but “specific intent to further the organization’s terrorist activities” is not required.75 As with Section 2339A, Section 2339B also criminalizes attempts and conspiracies to provide material support or resources, and the requirements are similar.76 Violations of Section 2339B’s material support proscription, including through attempt or conspiracy, are punishable by fine, imprisonment for up to 20 years, or both.77 If death results, however, punishment increases to imprisonment for any term of years or for life.78 Terrorism Transcending National Boundaries: 18 U.S.C. § 2332b Prohibited Acts and Penalties 18 U.S.C. § 2332b proscribes specific kinds of violent acts and damage to property within the United States where “conduct transcending national boundaries” is involved and certain jurisdictional prerequisites are met.79 The statute imposes criminal penalties for (1) killing, kidnapping, maiming, committing an assault resulting in serious bodily injury, or assaulting with a dangerous weapon any person within the United States; or (2) creating a “substantial risk of serious bodily injury to any other person” by destroying, damaging, or attempting or conspiring to destroy or damage property within the United States, where either (1) or (2) is committed “in violation of the laws” of a state or the United States.80 These proscriptions apply only when “conduct transcending national boundaries” is involved and at least one of six jurisdictional circumstances, such as a connection to interstate or foreign commerce, is present.81 Threats, attempts, and conspiracies to violate the substantive provisions of Section 2332b are also prohibited.82 Reported cases involving Section 2332b offenses are relatively few, and thus there is little judicial guidance on many of the statutory elements.83 That said, although Section 2332b is sometimes 75 Holder, 561 U.S. at 16-17. 76 See supra notes 43-52 and accompanying text. 77 18 U.S.C. § 2339B(a)(1). Terrorism sentencing enhancements are discussed in more detail infra, § “Domestic Terrorism at Sentencing.” 78 18 U.S.C. § 2339B(a)(1). 79 Id. § 2332b(a)(1). 80 Id. It appears that the “in violation of the laws” requirement calls for identification of a separate federal or state criminal provision that the killing or other identified conduct violates. E.g., Superseding Information at 2, United States v. Arbabsiar, No. 11-CR-897 (S.D.N.Y. Oct. 17, 2012) (specifically referencing 18 U.S.C. § 1116). A separate subsection of Section 2332b supports this reading by clarifying that when a prosecution “is based upon the adoption of State law, only the elements of the offense under State law, and not any provisions pertaining to criminal procedure or evidence, are adopted.” 18 U.S.C. § 2332b(d)(2). 81 18 U.S.C. §§ 2332b(a)(1), (b). 82 Id. § 2332b(a)(2). The separate proscription regarding attempt and conspiracy creates an oddity, and perhaps redundancy, with respect to Section (a)(1)(B), as that provision prohibits creating a substantial risk of serious bodily injury by destroying, damaging, or attempting or conspiring to destroy or damage property. Id. § 2332b(a)(1)(B). Thus, read together, the provisions appear to prohibit, among other things, attempting or conspiring to create a substantial risk of serious bodily injury by attempting or conspiring to destroy or damage property. It appears that in at least one case, federal prosecutors charged violations of both Section (a)(1)(B) and Section (a)(2) based on a solo plot to blow up a courthouse, though the Section (a)(2) charge may have been based on a threat the defendant made regarding the plot. See United States v. Nesgoda, 199 F. App’x 114, 115 (3d Cir. 2006) (unpublished). 83 Beyond the offenses described, Section 2332b contains other provisions addressing extraterritorial jurisdiction, investigative authority, and the definition of a list of “federal crimes of terrorism” that have legal implications Congressional Research Service 9 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues characterized as an “international terrorism” provision,84 it appears that its offenses may encompass conduct meeting the statutory definition of “domestic terrorism” in the sense that they address acts dangerous to human life, in violation of state or federal criminal law, that may be intended to intimidate civilians or influence or affect the policy or conduct of a government85 and occur “primarily within the territorial jurisdiction of the United States.”86 In this last respect, Section 2332b defines “conduct transcending national boundaries” to mean “conduct occurring outside of the United States in addition to the conduct occurring in the United States,”87 but at least one case involving a conspiracy under Section 2332b(a)(2) appears to support a fairly limited reading of that requirement. In United States v. Wright, a U.S. resident was charged under Section 2332b’s conspiracy provision based on his participation in a plot to, among other things, kill a U.S. citizen within the United States for insulting the Prophet Mohammed. 88 The “conduct transcending national boundaries” in the case was primarily a co-conspirator’s exchange of information online with someone located outside the United States.89 The defendant argued that “mere communications” were insufficient to meet the statutory element of conduct transcending national boundaries because such conduct must be criminal, but the trial court disagreed,90 and the U.S. Court of Appeals for the First Circuit affirmed.91 The appellate court stated that even assuming the requisite conduct must be “substantial” to constitute conduct transcending national boundaries, the foreign resident’s provision to the co-conspirator of “research and guidance on the plot to kill” the U.S. citizen sufficed.92 It is not clear whether a defendant must know of conduct transcending national boundaries to violate Section 2332b, so long as such conduct occurs. The statute states that proof of “knowledge by any defendant of a jurisdictional base alleged in the indictment is not required,”93 and in Wright, the trial court treated the phrase “involving conduct transcending national boundaries” as establishing only a jurisdictional element for which no proof of mental state was necessary.94 That said, the appellate court in the case appeared to assume that at least knowledge of the conduct transcending national boundaries was required.95 addressed elsewhere in this report. 84 E.g., Harry Litman, A Domestic Terrorism Statute Doesn’t Exist. Congress Must Pass One app Now, WASH. POST (Aug. 5, 2019), https://www.washingtonpost.com/opinions/2019/08/05/domestic-terrorism-statute-doesnt-existcongress-must-pass-one-now/ (“18 U.S. Code § 2332b lays out a laundry list of ‘acts of terrorism transcending national boundaries,’—i.e., acts of international terrorism—with commensurately serious penalties, including sentences of death.”). 85 A violation of Section 2332b does not depend on any particular ideological motive, and thus a purpose to intimidate civilians or impact a government could underlie conduct charged in a Section 2332b case but would not be required. 86 18 U.S.C. § 2331(5). 87 Id. § 2332b(g)(1). 88 285 F. Supp. 3d 443, 447-49 (D. Mass. 2018). 89 Id. at 459-60. 90 Id. at 460. 91 United States v. Wright, 937 F.3d 8, 33 (1st Cir. 2019). 92 Id. 93 18 U.S.C. § 2332b(d)(1). Proof of mens rea (a requisite mental state) is undoubtedly required with respect to the nonjurisdictional conduct prohibited in Section 2332b. See, e.g., Staples v. United States, 511 U.S. 600, 605 (1994) (“[S]ilence . . . by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal.”). 94 285 F. Supp. 3d at 460. Regardless, the trial court determined that “[t]he evidence presented at trial showed that [the defendant] and his coconspirators knew that the conspiracy involved conduct that transcended national boundaries.” Id. 95 937 F.3d at 37 (finding no “clear and obvious” error in the jury instruction regarding what Wright “needed to ‘know Congressional Research Service 10 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Maximum penalties for violations of Section 2332b depend on the conduct involved. If a death results, the death penalty or imprisonment for up to life is authorized.96 Kidnapping is punishable by up to life in prison, maiming by up to 35 years, assault with a dangerous weapon or resulting in serious bodily injury by up to 30 years, destruction of property by up to 25 years, attempt or conspiracy by up to the maximum punishment applicable for a completed offense, and threat by up to 10 years.97 Definition of “Federal Crime of Terrorism” in § 2332b(g) Separate from the offense established in Section 2332b, the statute also defines a list of over fifty federal offenses (including the Section 2332b offense) that are “federal crime[s] of terrorism” if “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”98 Some of the listed offenses are those found in Chapter 113B itself, while others are in different chapters of Title 18 or other titles of the U.S. Code.99 Although located in the statutory section denominated “[a]cts of terrorism transcending national boundaries,” the definition does not require that a listed offense with the requisite purpose involve transnational conduct in order to be considered a “federal crime of terrorism.”100 Section 2332b also does not establish separate criminal penalties for “federal crimes of terrorism,” but the definition is used for other purposes—notably, (1) the Attorney General is given primary investigative responsibility for all “federal crimes of terrorism,”101 (2) the listed offenses are incorporated as predicate offenses under the “material support” provision in Section 2339A,102 and (3) the term is incorporated in an adjustment under the U.S. Sentencing Guidelines that can increase a Guidelines sentence range if the offense at issue involved or sought to promote a “federal crime of terrorism.”103 The latter two aspects of the “federal crime of terrorism” definition are discussed in the separate sections of this report addressing those topics. Remaining Chapter 113B Offenses Beyond the three broader “material support” and “transcending national boundaries” terrorism offenses in Chapter 113B, the remaining offenses address specific kinds of conduct such as using particular weapons or providing financing in service of terrorist acts. Some of these other Chapter specifically,’” and no error in the court’s instruction that the government had to establish that “Wright ‘reasonably understood that he was engaged in a conspiracy to do conduct that transcends national boundaries’”). Because Wright involved a conspiracy, it was not disputed that the defendant had to have the “specific intent” to accomplish the object of the conspiracy. Id. at 36. 96 18 U.S.C. § 2332b(c)(1)(A). 97 Id. §§ 2332b(c)(1)(B)-(G). Probation is prohibited, and a term of imprisonment under Section 2332b must run consecutive to any other term of imprisonment. Id. § 2332b(c)(2). Terrorism sentencing enhancements are discussed in more detail infra, § “Domestic Terrorism at Sentencing.” 98 Id. § 2332b(g)(5). 99 A number of offenses outside of Chapter 113B that are defined as “federal crimes of terrorism” and can apply to domestic terrorism are discussed infra, § “Other Federal Criminal Laws Applicable to Domestic Terrorism.” 100 United States v. Salim, 549 F.3d 67, 79 (2d Cir. 2008). That said, the listed offenses may themselves bear a transnational conduct element or otherwise include an international component. 101 18 U.S.C. § 2332b(f). 102 Id. § 2339A(a). Exception is made for the “material support” provisions in Sections 2339A and 2339B, apparently to avoid redundancy. Id. 103 U.S. SENT’G GUIDELINES M ANUAL § 3A1.4 (U.S. SENT’G COMM’N 2018). Congressional Research Service 11 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues 113B offenses have limitations making them applicable only to international terrorism or conduct abroad, but many may be applicable, at least in part, to domestic-focused conduct. In the former category, 18 U.S.C. § 2332 proscribes homicide (as well as attempt and conspiracy) and other violent acts outside the United States against U.S. nationals, where the Attorney General or a high-ranking subordinate certifies that the offense was “intended to coerce, intimidate, or retaliate against a government or a civilian population.”104 Section 2332d prohibits a U.S. person from engaging in a financial transaction with the government of a country designated as “supporting international terrorism,” if the person knows or has reasonable cause to know that the country is so designated.105 Section 2332f prohibits bombing public spaces, government or infrastructure facilities, or public transportation systems with intent to cause death, serious bodily injury, or extensive destruction likely to result in major economic loss.106 A lengthy list of jurisdictional prerequisites in Section 2332f makes clear that if the offense takes place in the United States, there must be some link to a foreign state or foreign national or stateless person, or a perpetrator must be found outside the United States.107 Finally, Section 2339D makes it a crime to knowingly receive “military-type training”108 from or on behalf of an organization designated at that time as a foreign terrorist organization, provided at least one of a number of jurisdictional prerequisites is met.109 Designation is made under the same authorities previously discussed in connection with Section 2339B, and the mental state requirement is the same as well—i.e., a person must have knowledge that the organization is either so designated, has engaged or engages in terrorist activity, or has engaged or engages in terrorism, as defined under separate legal provisions.110 104 18 U.S.C. § 2332(a)-(d). 105 Id. § 2332d(a). 106 Id. § 2332f(a)(1). The specific conduct prohibited is unlawfully delivering, placing, discharging, or detonating an explosive or other lethal device in, into, or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility. Id. Attempts and conspiracies are also proscribed. Id. § 2332f(a)(2). Beyond the exception noted in footnote 107, infra, additional exception is made for activities of armed forces during armed conflict and activities undertaken by military forces in the exercise of official duties. Id. § 2332f(d)(1)-(2). 107 The one jurisdictional prerequisite that potentially could apply to purely domestic-focused conduct is that the offense occurs in the United States and “is committed in an attempt to compel . . . the United States to do or abstain from doing any act.” Id. § 2332f(b)(1)(B). However, even then, a separate exception states that, among other things, Section 2332f does not apply to offenses committed within the United States “where the alleged offender and the victims are United States citizens and the alleged offender is found in the United States.” Id. § 2332f(d)(3). That said, conduct that takes place in the United States and may meet the statutory definition of domestic terrorism can still come within the purview of Section 2332f if the offender or at least one victim is a foreign national and the offense has a substantial effect on interstate or foreign commerce. See, e.g., Indictment (Original & Last Amended/Superseded), United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020) (No. 16-6001), 2013 WL 3215742 (in case involving domestic bombing by naturalized U.S. citizen, alleging that a victim was a national of another country and the offense had a substantial effect on interstate and foreign commerce). 108 Military-type training is defined as including “training in means or methods that can cause death or serious bodily injury, destroy or damage property, or disrupt services to critical infrastructure, or training on the use, storage, production, or assembly” of explosives, firearms, or “other weapons” such as weapons of mass destruction. Id. § 2339D(c)(1). 109 Id. § 2339D(a)-(b). 110 See id. § 2339D(a); supra notes 64-75 and accompanying text. Congressional Research Service 12 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues In the latter category, Sections 2332a, 2332g, and 2332h largely prohibit the use of weapons of mass destruction (WMDs),111 missile systems designed to destroy aircraft,112 and radiological dispersal devices, respectively.113 Section 2332i restricts possession or use of radioactive material and radioactive/radiation-emitting/nuclear explosive devices with intent to cause certain harms or to compel the acts of others.114 All of these offenses require that at least one of a number of jurisdictional prerequisites is present, and while many of the prerequisites address conditions existing or directed outside the United States, others relate to domestic-focused circumstances— for instance, 2332a, 2332g, and 2332h can apply domestically if a connection to interstate commerce exists,115 and Section 2332i jurisdiction exists if the prohibited conduct simply takes place in the United States,116 among many other things. Likewise, Section 2339 prohibits harboring or concealing a person that the offender knows, or has reasonable grounds to believe, has committed or is about to commit one of several listed offenses that can apply domestically, such as arson and bombing of government property risking or causing injury or death (18 U.S.C. 111 18 U.S.C. § 2332a. Use of WMDs against persons or property “without lawful authority,” as well as threats, attempts, and conspiracies to do the same, are prohibited. Id. § 2332a(a). One federal appellate court has described the “without lawful authority” element as being “intended to except persons who are authorized by the appropriate authorities to use hazardous biological agents for legitimate purposes.” United States v. Wise, 221 F.3d 140, 149 (5th Cir. 2000). A WMD is defined as a destructive device (including a bomb, grenade, mine, certain rockets and missiles, and similar devices); any weapon designed or intended to cause death or serious bodily injury through toxic or poisonous chemicals or precursors; any weapon involving a biological agent, toxin, or vector; or any weapon that is designed to release radiation or radioactivity at a level dangerous to human life. 18 U.S.C. § 2332a(c)(2). Other criminal prohibitions listed as “federal crimes of terrorism” but found outside of Chapter 113B can also apply to similar kinds of weapons or substances. See, e.g., 18 U.S.C. § 175(a) (prohibiting knowing development, production, stockpiling, transfer, acquisition, retention, or possession of “any biological agent, toxin, or delivery system for use as a weapon”). 112 Specifically, the statute prohibits knowingly producing, constructing, otherwise acquiring, transferring, receiving, possessing, importing or exporting, using, or possessing and threatening to use an explosive or incendiary rocket or missile designed to destroy aircraft (unless not designed for use as a weapon), a device for launching such a rocket or missile, or any part to be used in assembling the same. Id. § 2332g(a)(1)-(2). Attempts and conspiracies are also proscribed. Id. § 2332g(c)(1). Exception is made for federal or state government conduct and conduct pursuant to the terms of a government contract. Id. § 2332g(a)(3). 113 The provision prohibits knowingly producing, constructing, otherwise acquiring, transferring, receiving, possessing, importing or exporting, using, or possessing and threatening to use weapons, devices, or objects that are designed or intended to release radiation or radioactivity at a level dangerous to human life or that can endanger human life through release of the same. Id. § 2332h(a)(1). Attempts and conspiracies are also proscribed. Id. § 2332h(c)(1). Exception is made for federal government conduct or conduct pursuant to the terms of a federal government contract. Id. § 2332h(a)(2). 114 Specifically, the statute prohibits knowingly and unlawfully (1) possessing radioactive material or making or possessing a “device” with intent to cause death, serious bodily injury, or substantial damage to property or the environment; or (2) using radioactive material or a “device” or causing certain radioactive risk or releases from a nuclear facility with intent to cause death, serious bodily injury, or substantial damage to property or the environment (or knowing that the same is likely) or to compel a person, international organization, or country to act or refrain from acting. Id. § 2332i(a)(1). A “device” is defined separately as a nuclear explosive device or radioactive material dispersal or radiation-emitting device that may cause death, serious bodily injury or substantial damage to property or the environment. Id. § 2332i(e)(2). A threat to do any of the above “under circumstances in which the threat may reasonably be believed” or a demand to possess or access radioactive material, a device, or a nuclear facility by threat or use of force are also proscribed, as are attempts and conspiracies. Id. § 2332i(a)(2)-(3). Exception is made for the activities of armed forces during armed conflict and activities undertaken by military forces in the exercise of official duties. Id. § 2332i(d). 115 See id. § 2332a(a)(2) (prohibition applies against persons or property within the United States if one of several links to interstate or foreign commerce exists); id. § 2332g(b)(1) (jurisdiction exists if offense occurs in or affects interstate or foreign commerce); id. § 2332h(b)(1) (same). 116 Id. § 2332i(b)(1). Congressional Research Service 13 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues § 844(f), discussed infra) or using a WMD (18 U.S.C. § 2332a, discussed supra).117 Lastly, Section 2339C prohibits “unlawfully and willfully”118 providing or collecting funds with the intention or knowledge that such funds will be used to carry out either (1) an act in violation of certain international treaties, or (2) any other act intended to cause death or serious bodily injury to a civilian, or to a person not taking active part in the hostilities in a situation of armed conflict, when the purpose of the act “by its nature or context” is to intimidate a population or compel a government or international organization to act or refrain from acting.119 Among other circumstances giving rise to jurisdiction over the offense, jurisdiction exists if the offense takes place in the United States and is directed toward or results in carrying out a predicate act (i.e., an act in violation of one of the specified treaties or intended to cause death or serious bodily injury with the stated conditions) also within the United States, so long as either the offense or predicate act bears a sufficient connection to interstate commerce.120 Other Federal Criminal Laws Applicable to Domestic Terrorism As discussed above, some, but not all, federal criminal laws that expressly address terrorism can apply in the context of domestic terrorism.121 Additionally, depending on the circumstances, conduct that fits within the legal definition of domestic terrorism could violate any number of generally applicable federal criminal laws ranging from hate crime statutes to provisions protecting government property. General principles of inchoate and accomplice liability may also expand the reach of these laws and the terrorism-specific statutes discussed previously. Finally, performing acts connected to or considered to be domestic terrorism can impact the sentence imposed for committing these and other federal offenses. Substantive Criminal Laws Some observers estimate that dozens of federal criminal statutes could apply to domestic terrorism,122 and it is possible to envision examples of domestic terrorism that might violate 117 Id. § 2339(a). 118 One court has noted that the term “unlawfully” is meant to “embody common law defenses.” N.Y. Times Co. v. DOJ, 756 F.3d 100, 126 n.10 (2d Cir. 2014) (reviewing legislative history). Caselaw appears to provide little elaboration on the term “willfully” as used in Section 2339C, and the word is a “notoriously slippery” one in general. United States v. Starnes, 583 F.3d 196, 210 (3d Cir. 2009) (quoting United States v. Ladish Malting Co., 135 F.3d 484, 487-88 (7th Cir. 1998)). In an unpublished opinion, one court suggested in passing that the standard of “unlawfully and willfully” in Section 2339C is “arguably higher” than knowledge. Hussein v. Dahabshiil Transfer Servs. Ltd., 705 F. App’x 40, 41 (2d Cir. 2017) (summary order). 119 Id. § 2339C(a)(1). It is not necessary that the so-called predicate act for which funds are collected or provided actually occur. Id. § 2339C(a)(3). Attempts and conspiracies are also proscribed. Id. § 2339C(a)(2). Separately, Section 2339 prohibits knowingly concealing funds, proceeds, or “material support or resources” knowing or intending that they are or were provided or collected in violation of Section 2339C or, in the case of material support or resources, in violation of Section 2339B (addressing support to foreign terrorist organizations, discussed supra). 120 Id. § 2339C(b)(1)(G)(ii). Other domestic-focused jurisdictional circumstances exist, such as when a predicate act seeks to compel the United States to do or abstain from doing any act. Id. § 2339C(b)(5). 121 Supra, § “Federal Criminal Terrorism Laws.” 122 See GERMAN & ROBINSON, supra note 21, at 6-7, 10-12. Congressional Research Service 14 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues tangentially-relevant criminal laws.123 Given the large number of federal criminal laws,124 a comprehensive review is beyond the scope of this report. Instead, this section overviews the basic categories of federal statutes that could implicitly criminalize acts of domestic terrorism,125 including:         Crimes of violent unrest, Crimes against government authority, Crimes against persons, Crimes involving infrastructure or federal property, Hate crimes, Crimes involving specific weapons, Crimes involving threats, and Crimes involving computers. Acts of domestic terrorism, however, may not fit neatly within a single category. In the past, acts of domestic terrorism have resulted in charges under multiple statutes126—and many relevant statutes could plausibly fall within multiple categories.127 But the categories provide clarity and illustrate how underlying conduct may inform federal prosecutors’ selection of charges, and the broader designation of the crime.128 For example, the choice of statute might depend on, among 123 For example, according to analysis by one observer, DOJ used a statute prohibiting “manufacturing, distributing or dispensing a controlled substance” as the lead charge in four domestic terrorism prosecutions between the 2013 and 2017 financial years. Id. at 10. 124 See John G. Malcolm, Morally Innocent, Legally Guilty: The Case for Mens Rea Reform, 18 FEDERALIST SOC’Y REV. 40, 41 (2017) (estimating that there are approximately 5,000 federal statutes carrying criminal penalties). This number does not include federal regulations that implicate criminal penalties, which may number over 300,000. Id. 125 Other statutes might be used to target groups engaged in domestic terrorism more generally. For example, some observers have suggested that the Racketeer Influenced and Corrupt Organizations Act (RICO)—often associated with prosecutions in the organized crime context—may be useful in prosecuting groups engaged in domestic terrorism. See, e.g., Francesca Laguardia, Considering A Domestic Terrorism Statute and Its Alternatives, 114 NW. U. L. REV. 1061, 1093 (2020) (“The possibility of using RICO, . . . the organized crime law enforcement powerhouse, to pursue terrorists, has been floated in legal scholarship since at least 1990.”). For more information on RICO see generally CRS Report 96-950, RICO: A Brief Sketch, by Charles Doyle. Statutes criminalizing financial crimes such as money laundering could also potentially be applicable to certain aspects of the financing of domestic terrorism. See generally CRS Testimony TE10056, A Persistent and Evolving Threat: An Examination of the Financing of Domestic Terrorism and Extremism, by Rena S. Miller. For legal analysis of money laundering statutes see generally CRS Report RL33315, Money Laundering: An Overview of 18 U.S.C. § 1956 and Related Federal Criminal Law, by Charles Doyle. 126 For example, in connection with an incident described by DOJ as a domestic terrorist attack, prosecutors charged one individual under several statutes, including those prohibiting interstate transportation or receipt of explosives, interstate threats, and illegal mailing of explosives. Press Release, U.S. Dep’t of Justice, Cesar Sayoc Pleads Guilty to 65 Felonies for Mailing 16 Improvised Explosive Devices in Connection with October 2018 Domestic Terrorist Attack (Mar. 21, 2019), https://www.justice.gov/opa/pr/cesar-sayoc-pleads-guilty-65-felonies-mailing-16-improvisedexplosive-devices-connection [hereinafter Sayoc Plea Press Release]; Press Release, U.S. Dep’t of Justice, Cesar Altieri Sayoc Charged in 30-Count Indictment With Mailing Improvised Explosive Devices in Connection With Domestic Terrorist Attack (Nov. 9, 2018), https://www.justice.gov/opa/pr/cesar-altieri-sayoc-charged-30-countindictment-mailing-improvised-explosive-devices. 127 E.g., 18 U.S.C. § 175 (restricting use of specific weapons (biological agents) and prohibiting certain threats involving them (§ 175 is a predicate offense for 18 U.S.C. § 2339A discussed above)); id. § 245(b)(2) (prohibiting certain hate crimes and authorizing increased penalties where defendant uses specific weapon (dangerous weapons) in committing hate crime); id. § 247 (prohibiting various hate crimes and protecting both certain persons and property); 49 U.S.C. § 46505 (criminalizing certain conduct involving specific weapons (firearms or explosives) when it involves infrastructure (aircraft) (§§ 46505(b)(3) and (c) are predicate offenses for 18 U.S.C. § 2339A discussed above)). 128 See, e.g., FBI Oversight Hearing, supra note 2 (statement of Christopher Wray, Dir., FBI) (“We [the FBI] focus on Congressional Research Service 15 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues other things,129 the weapon used by the defendant (e.g., biological agents under 18 U.S.C. § 175),130 the target selected (e.g., federal property under 18 U.S.C. § 1361),131 or the defendant’s motive (e.g., bias against the victim’s race under 18 U.S.C. § 249(a)(1)).132 Relatedly, such circumstances may also determine whether there is federal jurisdiction, rather than state or local, to investigate or prosecute conduct that could be described as domestic terrorism.133 Crimes of Violent Unrest In recent months, high-ranking law enforcement officials have expressed concern over the possible intersection of domestic terrorism and violent unrest, such as rioting and other destructive mob behavior.134 For example, in a March 2, 2021 Senate Judiciary Hearing, Federal Bureau of Investigation (FBI) Director Christopher Wray described some of the conduct committed during the events of January 6, 2021 at the U.S. Capitol—such as the breaching of Capitol grounds and “violence against law enforcement”—as domestic terrorism.135 According to Wray, the incident involved lawful protesters, as well as individuals who came to “be part of a peaceful protest” but who engaged in “low-level criminal behavior” after being “swept up in . . . motive or emotion.”136 Law enforcement officials have indicated that the events of January 6 illustrate the potential for domestic terrorists to use social unrest as a weapon, by “turning large groups of people to violence.”137 As such, there are a number of federal criminal statutes that could be relevant when individuals participate in violent unrest, including the federal anti-riot act and civil disorder statute. This section discusses both in turn. the violence and the violation of federal law. And then the ideology comes into it as a further piece of the puzzle as we build up the case.”). 129 For example, DOJ policy is generally to charge the most serious applicable offense, although typically “a defendant will have committed more than one criminal act and his/her conduct may be prosecuted under more than one statute.” DOJ Manual: Criminal §§ 9-27.300, https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.300. 130 See Sinnar, supra note 4, at 1352 (explaining how the weapon used by a suspect may impact charging decisions in domestic terrorism context). 131 See, e.g., Debra Cassens Weiss, 9th Circuit upholds part of federal anti-riot law in case against white supremacists, ABA JOURNAL (Mar. 5, 2021), https://www.abajournal.com/news/article/9th-circuit-upholds-part-of-federal-anti-riotlaw-in-case-against-white-supremacists (speculating that because the events of January 6, 2021 at the Capitol “took place on federal property and involved federal personnel,” the “government hasn’t had to use the [anti-riot act] against people who participated” in the events). 132 See, e.g., Hate Crimes, FBI, https://www.fbi.gov/investigate/civil-rights/hate-crimes (last visited Mar. 29, 2021) (explaining how “an added element of bias” may turn a “traditional offense like murder, arson, or vandalism” into a hate crime). 133 See generally, What We Investigate, FBI, https://www.fbi.gov/investigate (last visited Apr. 7, 2021). 134 See, e.g., Press Release, U.S. Dep’t of Justice, Attorney General William P. Barr's Statement on Riots and Domestic Terrorism (May 31, 2020), https://www.justice.gov/opa/pr/attorney-general-william-p-barrs-statement-riots-anddomestic-terrorism (describing certain violence connected to rioting as domestic terrorism and stating that “the voices of peaceful and legitimate protests have been hijacked by violent radical extremists”). 135 See, e.g., FBI Oversight Hearing, supra note 2(statement of Christopher Wray, Dir., FBI). 136 Id. 137 Lisa Desjardins, FBI director sounds the alarm on the growing threat of domestic terrorism, PBS (Mar. 2, 2021), https://www.pbs.org/newshour/show/fbi-director-sounds-the-alarm-on-the-growing-threat-of-domestic-terrorism. Congressional Research Service 16 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Anti-Riot Act: 18 U.S.C. § 2101 The anti-riot act, 18 U.S.C. § 2101, has been used to prosecute conduct such as looting, setting fires, distributing explosives,138 and assaulting protestors139 at rallies or demonstrations. Section 2101 imposes fines and up to five years of imprisonment for traveling in, or using a facility of, interstate commerce with intent to do one of four activities: (1) incite a riot, (2) organize, promote, encourage, or participate in, or carry on a riot, (3) commit any act of violence in furtherance of a riot, or (4) aid or abet any person in such activities.140 The statute defines riots as “a public disturbance involving” violent acts, or certain threats of violence, by at least one individual who is “part of an assemblage of three or more persons,” where such acts or threats result in, or “constitute a clear and present danger of,” property damage or injury to another.141 The statute defines inciting, organizing, promoting, encouraging, participating in, or carrying on a riot to mean “urging or instigating other persons to riot.”142 That definition specifically excludes advocacy of ideas or oral or written expression of beliefs that do not advocate violence.143 Although a potentially broad range of conduct could violate the anti-riot act, several limitations curtail its applicability. First, as noted, the law does not govern conduct lacking an interstate commerce nexus.144 Second, the statute requires that while traveling in, or using a facility of, interstate commerce, the suspect engage in an overt act145—an outward manifestation of intent to commit a crime.146 In practice, those overt acts appear to overlap with the four prohibited activities listed above.147 Overt acts can include, for example, committing a violent act in furtherance of a riot.148 Third, the statute applies only to intentional conduct, and courts have construed the anti-riot act to “require[] the government to prove a defendant’s intent [to engage in a prohibited purpose] at two points in time:” (1) “when the defendant [travels in or] uses a facility of interstate commerce with the intent to incite a riot,” and (2) “when the defendant commits an overt act . . . .”149 Fourth, at least one federal court has imposed causality requirements between the defendant’s conduct and the riot, requiring that the defendant’s conduct be “sufficiently closely related as a propelling cause of a riot,” and not a mere attenuated link.150 Finally, there 138 E.g., Criminal Complaint, United States v. Rupert, No. 20-mj-344 (D. Minn. 2020). 139 See, e.g., Press Release, U.S. Dep’t of Justice, Remaining Members of California-Based White Supremacist Group Plead Guilty to Federal Rioting Charges in Connection with August 2017 “Unite the Right” Rally in Charlottesville (May 3, 2019), https://www.justice.gov/usao-wdva/pr/remaining-members-california-based-white-supremacist-groupplead-guilty-federal-rioting (describing guilty pleas entered by individuals who, among other things, “assaulted protestors and other individuals” at a rally). 140 18 U.S.C. § 2101(a). 141 Id. § 2102(a). 142 Id. § 2102(b). 143 Id. 144 Id. § 2101(a); accord United States v. Daley, 378 F. Supp. 3d 539, 558 (W.D. Va. 2019), aff’d sub nom. United States v. Miselis, 972 F.3d 518 (4th Cir. 2020) (determining that § 2101 “plainly requires that a defendant travel in or use a facility of interstate or foreign commerce with the requisite intent”). 145 18 U.S.C. § 2101(a). 146 Overt Act, BLACK’S LAW DICTIONARY (11th ed. 2019). 147 See United States v. Rundo, No. 19-50189, 2021 WL 821938, at *4 (9th Cir. Mar. 4, 2021) (“We hold that the overt act requirement refers to acts that fulfill the elements themselves, and not mere steps toward, or related to, one or more of those elements.”). 148 E.g., Daley, 378 F. Supp. 3d at 560. 149 E.g., United States v. Markiewicz, 978 F.2d 786, 813 (2d Cir. 1992). 150 E.g., United States v. Dellinger, 472 F.2d 340, 361 (7th Cir. 1972). Congressional Research Service 17 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues may be constitutional limitations on the application of the anti-riot act.151 At least two federal appellate courts have held that to the extent Section 2101 prohibits urging, encouraging, or promoting a riot, it is overbroad and unconstitutionally proscribes First Amendment protected activity.152 In addition, these courts concluded that the statutory language restricting Section 2101 from applying to oral or written expression of beliefs advocating violence is unconstitutional, because the effect is that Section 2101 prohibits advocacy of violence, and “the First Amendment protects that kind of advocacy.”153 These courts did not strike down all of Section 2101, however, but rather severed the portions deemed unconstitutional under the First Amendment.154 Civil Disorder: 18 U.S.C. § 231 Another federal criminal statute concerning violent unrest is the civil disorder statute, 18 U.S.C. § 231, which the Department of Justice (DOJ) has used to charge dozens of individuals in connection with the events of January 6, 2021 at the Capitol.155 “Civil disorder” is a term of art defined as a “public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in” injury to the property or person of another.156 Of note, section 231 imposes fines and a maximum prison term of five years for “commit[ting] or attempt[ing] to commit any act to obstruct, impede, or interfere with” a fireman or law enforcement officer “lawfully engaged in the lawful performance of his official duties” during a civil disorder, assuming certain jurisdictional requirements are satisfied.157 Although there is minimal case law construing the statute, courts have identified various limiting principles on its application. For example, the statute has been read to regulate violent physical acts only and not to concern speech.158 In this vein, one federal appellate court upheld the civil disorder conviction of a defendant who threw a cherry bomb at a line of police officers responding to a fire at a riot.159 Several other factors limit the applicability of the civil disorder statute. First, although it is silent on an intent requirement, courts have construed the civil disorder statute to criminalize only intentional conduct.160 Second, like the anti-riot act discussed above, the civil disorder statute has jurisdictional limitations on its reach.161 Specifically, the statute requires either (1) conduct that “obstructs, delays, or adversely affects” interstate 151 See Rundo, 2021 WL 821938, at *5-6. 152 Id.; United States v. Miselis, 972 F.3d 518, 536-38 (4th Cir. 2020). These courts disagreed on whether § 2101’s language prohibiting organizing a riot was similarly problematic. Compare Rundo, 2021 WL 821938, at *5 (“The verb ‘organize’ is similarly overbroad.”) with Miselis, 972 F.3d at 537-38 (“[S]peech tending to organize a riot under § 2101(a)(2), unlike that of encouraging and promoting a riot, doesn’t implicate mere advocacy of lawlessness, and may thus be proscribed.”). 153 Rundo, 2021 WL 821938, at *6; accord Miselis, 972 F.3d at 537-39. 154 Rundo, 2021 WL 821938, at *3; Miselis, 972 F.3d at 541. 155 See Capitol Breach Cases, U.S. Dep’t of Justice (summarizing charges in prosecutions for conduct connected to the events of January 6, 2021 at the U.S. Capitol), https://www.justice.gov/usao-dc/capitol-breach-cases (last visited Mar. 30, 2021) [hereinafter Capitol Breach Cases]. 156 18 U.S.C. § 232(1). 157 Id. § 231(a)(3). Other subsections of the civil disorder statute prohibit other conduct such as demonstrating the use of, or transporting in interstate commerce, certain weapons while “knowing or having reason to know or intending that the same will be unlawfully employed for use in . . . a civil disorder.” Id. § 231(a)-(2). 158 United States v. Mechanic, 454 F.2d 849, 852 (8th Cir. 1971) (“[A]s we read it, § 231(a)(3) has no application to speech, but applies only to violent physical acts.”). 159 Id. at 851, 57. 160 Id. at 854. 161 18 U.S.C. § 231(a)(3). Congressional Research Service 18 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues commerce or the movement of an article in interstate commerce, or (2) the obstruction of “the conduct or performance of any federally protected function . . . .”162 A “federally protected function” includes any function or operation by any federal department, agency, instrumentality, officer, or employee pursuant to federal law.163 Finally, although the statute provides a broad definition of “law enforcement officer,” which may at times include federal, state, and military personnel,164 the prosecutor bears the burden of establishing that law enforcement was acting lawfully during the alleged statutory violation.165 At least one court has acquitted defendants of civil disorder charges for interfering with officers where the prosecutor failed to establish that those officers were acting within their lawful authority. 166 Crimes against Government Authority As discussed, the statutory definition of domestic terrorism includes certain dangerous conduct intended to influence government policy or intended to affect government conduct.167 Conceptually, then, it is possible to envision instances of domestic terrorism amounting to crimes against government authority, such as treason, insurrection, or seditious conspiracy, though as detailed below, limited case law and significant statutory limitations may curtail the practical applicability of these statutes, and in practice prosecutors may gravitate towards other charges.168 Treason: 18 U.S.C. § 2381 Due to limited case law, the exact contours of the federal crime of treason are unclear.169 Treason has been described as the “most serious offense” that may be committed against the government.170 It is the only crime defined in the Constitution itself,171 which specifies that treason “consist[s] only” of “levying War against” the United States or “adhering to their Enemies, giving them Aid and Comfort.”172 That definition is codified in Section 2381 of Title 18 of the U.S. Code, which imposes fines and a minimum sentence of five years of imprisonment for treason, and authorizes the death penalty.173 Treason prosecutions are rare—particularly since the 162 Id. 163 Id. § 232(3). 164 Id. § 232(7). 165 Id. § 231(3); accord United States v. Red Feather, 392 F. Supp. 916, 918 (D.S.D. 1975); United States v. McArthur, 419 F. Supp. 186, 192 (D.N.D. 1975), aff’d sub nom. United States v. Casper, 541 F.2d 1275 (8th Cir. 1976); United States v. Jaramillo, 380 F. Supp. 1375, 1381 (D. Neb. 1974). 166 Jaramillo, 380 F. Supp. at 1381. 167 18 U.S.C. § 2331(5). 168 For example, despite speculation about their potential applicability, DOJ has so far not filed treason, insurrection, or seditious conspiracy charges connected to the events of January 6, 2021 at the U.S. Capitol, Capitol Breach Cases, supra note 155, although at least one federal prosecutor has reportedly stated that seditious conspiracy charges remain possible. Katie Bennar, Evidence in Capitol Attack Most Likely Supports Sedition Charges, Prosecutor Says, N.Y. TIMES (Mar. 21, 2021), https://www.nytimes.com/2021/03/21/us/politics/capitol-riot-sedition.html. Federal prosecutors reportedly have also considered whether the insurrection statute could apply to the events of January 6, 2021 at the U.S. Capitol. Press Release, U.S. Dep’t of Justice, Federal authorities investigating any potential violations of federal law by residents of Southern District of Ohio at the U.S. Capitol (Jan. 7, 2021), https://www.justice.gov/usao-sdoh/pr/federalauthorities-investigating-any-potential-violations-federal-law-residents. 169 Infra, note 174 and accompanying text. 170 Stephan v. United States, 133 F.2d 87, 90 (6th Cir. 1943). 171 Id. 172 U.S. CONST. art. III, § 3, cl. 1. 173 18 U.S.C. § 2381. Congressional Research Service 19 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues 1950s.174 That said, there are a number of significant limits on applying the treason statute. First, the Constitution itself permits conviction for treason only where there is a “[c]onfession in open [c]ourt,” or “testimony of two [w]itnesses to the same overt [a]ct”175—an action committed in furtherance of the treason.176 Second, the Supreme Court has held that treason requires proof that the defendant “intend[ed] to betray his country.”177 Third, treason may only be committed by those who owe allegiance to the United States—such as citizens or some temporary residents178— and who breach that allegiance.179 Furthermore, the concept of “levying war” is a “meticulously exclusive” phrase,180 which the Supreme Court has held applies only to conduct involving “an actual assemblage of men for the purpose of executing a treasonable design.”181 It is unclear from the limited case law exactly what conduct would count within that definition, and the Supreme Court has cautioned that the “crime of treason should not be extended by construction to doubtful cases.”182 Conduct that falls outside the narrow definition of treason may still be subject to prosecution under other laws concerning crimes against the government—such as seditious conspiracy discussed below.183 Insurrection: 18 U.S.C. § 2383 The federal insurrection statute authorizes fines and up to ten years of imprisonment for anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”184 The statute also bars anyone convicted of violating that provision from “holding any office under the United States.”185 The exact scope of the insurrection statute is unclear, in part because it does not define “rebellion” or “insurrection.”186 In addition, there is little interpretive case law, because prosecutions under the insurrection statute are rare.187 174 J. Richard Broughton, Constitutional Discourse and the Rhetoric of Treason, 47 HASTINGS CONST. L.Q. 303, 311 (2020) (“There has been no American treason conviction in well over a half century.”); Paul T. Crane, Did the Court Kill the Treason Charge?: Reassessing Cramer v. United States and Its Significance, 36 FLA. ST. U. L. REV. 635, 639 (2009) (“However, after 1954 not a single American was charged with treason until . . . 2006.”). 175 U.S. CONST. art. III, § 3, cl. 1. 176 See Haupt v. United States, 330 U.S. 631, 635 (1947) (contrasting defendant’s overt acts that furthered the treason with a past case where proof of overt acts were insufficient because there was no testimony of the “treasonable character” of those overt acts). 177 Cramer v. United States, 325 U.S. 1, 31 (1945). 178 Carlisle v. United States, 83 U.S. 147, 154-55 (1872). 179 See United States v. Rahman, 189 F.3d 88, 113 (2d Cir. 1999) (“Moreover, any acceptable recitation of the elements of treason must include the breach of allegiance.”). 180 Stephan v. United States, 133 F.2d 87, 90 (6th Cir. 1943). 181 Ex parte Bollman, 8 U.S. 75, 127 (1807). 182 Id. 183 See generally Memorandum From Deputy Attorney General Jeffrey A. Rosen For All United States Attorneys – Charging in connection with violent rioting, including 18 U.S.C. § 2384 (Sep. 17, 2020), https://www.justice.gov/archives/opa/page/file/1317916/download [hereinafter Rosen Memorandum] (describing potential applicability of seditious conspiracy charges); see also Crane, supra note 174, at 639 (linking the limited treason prosecutions to the availability of other statutory charges). 184 18 U.S.C. § 2383. 185 Id. 186 Id. 187 Erin Creegan, National Security Crime, 3 HARV. NAT’L SEC. J. 373, 381 (2012). Congressional Research Service 20 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Seditious Conspiracy: 18 U.S.C. § 2384 Section 2384 of Title 18 of the U.S. Code provides: If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both. 188 In a 2020 memo to U.S. Attorneys (hereinafter the “Rosen Memo”), then-Deputy Attorney General Jeffrey A. Rosen noted that the statute “does not require proof of a plot to overthrow the U.S. Government, despite what the name might suggest.”189 Rather, the statute applies to any conspiracy—i.e., an agreement with the requisite intent190—with the object of using force to (1) overthrow, put down, or destroy the U.S. government, (2) oppose the authority of the United States, (3) prevent, hinder, or delay the execution of any law of the United States, or (4) seize, take, or possess any property of the United States contrary to its authority, among other things.191 Though recent case law interpreting these phrases is limited, some authority indicates the types of conduct that might fall within the statute’s scope.192 For instance, the Rosen Memo specifically noted that charges under Section 2384 could be “potentially available” “where a group has conspired to take a federal courthouse or other federal property by force,” presumably under the statutory prong proscribing forcibly seizing, taking, or possessing any property of the United States contrary to its authority.193 Additionally, in an early twentieth century case, one federal court of appeals indicated that the prong addressing prevention, hindrance, or delay of the execution of federal law prohibits a conspiracy to use force “against some person who has authority to execute and who is immediately engaged in executing a law of the United States.”194 The seditious conspiracy statute has been used in recent decades in circumstances such as plots to bomb government buildings.195 With regard to the seditious conspiracy statute’s “oppose by force” prong, a district court recognized that it implies “force against the government as a government.”196 The district judge explained that “the law is clear that seditious conspiracy requires an agreement to oppose by force the authority of the United States itself.”197 The judge further explained that “offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority” by the government “is not enough to sustain a charge of seditious conspiracy.”198 As such, whether 188 18 U.S.C. § 2384. 189 See Rosen Memorandum, supra note 183. 190 John Alan Cohan, Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the Violent Overthrow of Government, 17 ST. JOHN'S J. LEGAL COMMENT. 199, 210 (2003). 191 18 U.S.C. § 2384. 192 See Cohan, supra note 190, at 206 (describing seditious conspiracy statute as “rarely used”). 193 Rosen Memorandum, supra note 183. 194 Haywood v. United States, 268 F. 795, 800 (7th Cir. 1920). 195 E.g., United States v. Rodriguez, 803 F.2d 318, 319 (7th Cir. 1986). 196 United States v. Stone, No. 10-20123, 2012 WL 1034937, at *4 (E.D. Mich. Mar. 27, 2012) (quoting Baldwin v. Franks, 120 U.S. 678, 693 (1887)). 197 Id. 198 Id. at *5. Congressional Research Service 21 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues charges would be warranted under the seditious conspiracy statute in connection with acts of domestic terrorism could ultimately depend not only on whether the conduct related to an agreement between two or more persons to take forcible action against the government, but also on whether (depending on the statutory prong at issue) the object of the agreement was actually in opposition to a positive assertion of government authority.199 Seditious conspiracy charges are reportedly under consideration by DOJ in connection with the events of January 6, 2021 at the U.S. Capitol.200 Crimes against Persons Domestic terrorism, by statutory definition, involves acts “dangerous to human life.”201 Regardless of its specific purpose then, conduct consistent with the statutory definition of domestic terrorism may violate a variety of federal statutes prohibiting crimes against persons.202 For example, federal criminal statutes prohibit the kidnapping, assault, murder, or assassination of Members of Congress, Members-of-Congress Elect, Supreme Court Justices or nominees, various Cabinet members,203 the President, Presidential Staff, the Vice President, the President-elect and Vice President-elect,204 and family members of certain United States officials, judges or federal law enforcement officers.205 Another federal statute criminalizes, among other things, conspiracies to use force to injure federal officers or officials.206 Other federal criminal statutes prohibit assault and other violent conduct where the victim is within a certain type of special jurisdiction of the United States.207 Although a comprehensive review of these and other federal laws prohibiting crimes against persons is beyond the scope of this report, this section provides an overview of several key statutes prohibiting crimes against persons, which may be of particular relevance in the context of domestic terrorism. 199 Another statute separately proscribes knowingly or willfully advocating, abetting, advising or teaching “the duty, necessity, desirability, or propriety of overthrowing or destroying” the federal or a state or local government “by force or violence” or by assassination, as well as organization of or affiliation with groups that do the same and distribution of related printed matter. 18 U.S.C. § 2385. Depending on the circumstances, some conduct to which Section 2384 is relevant might also be considered under Section 2385. 200 See, supra note 168 and accompanying text; but see Mark Hosenball, No seditious conspiracy charges emerge in U.S. Capitol riots cases, REUTERS (June 3, 2021), https://www.reuters.com/legal/government/no-seditious-conspiracycharges-emerge-us-capitol-riots-cases-2021-06-03/ (“A law enforcement official, who asked for anonymity to discuss debates among prosecutors, said there had been little recent discussion among key officials regarding seditious conspiracy charges.”). 201 18 U.S.C. § 2331(5). 202 Infra, § “Hate Crimes.” 203 18 U.S.C. § 351. This statute is a predicate offense listed in 18 U.S.C. § 2339A, discussed above. Supra, § “Material Support to Terrorists Under 18 U.S.C. § 2339A.” 204 Id. § 1751. This statute is a predicate offense listed in 18 U.S.C. § 2339A, discussed above. 205 Id. § 115. 206 Id. § 372; accord United States v. Rakes, 510 F.3d 1280, 1288 (10th Cir. 2007) (listing elements under § 372 as requiring “(1) two or more persons to conspire (2) to prevent any person from discharging the duties of their office under the United States (3) by force, intimidation, or threat.”). 207 See, e.g., 49 U.S.C. § 46504 (prohibiting assaulting or intimidating a “flight crew member or flight attendant of the aircraft” “on an aircraft in the special aircraft jurisdiction of the United States,” if it “interferes with the performance of the duties of the member or flight attendant” (§ 46504 is a predicate offense for 18 U.S.C. § 2339A discussed above)); 18 U.S.C. § 1111 (prohibiting the “unlawful killing of a human being” when committed in the special territorial jurisdiction of the United States, such as various federal buildings and lands); id. § 113 (criminalizing assaults committed “within the special maritime and territorial jurisdiction of the United States”). Congressional Research Service 22 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Assaulting, Resisting, or Impeding Federal Officers or Employees: 18 U.S.C. § 111 Among other things, Section 111 of Title 18 of the U.S. Code authorizes various prison terms208 for forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with certain federal officers or employees.209 DOJ has charged dozens of individuals under Section 111 in connection to the events of January 6, 2021 at the Capitol,210 including individuals who allegedly struck law enforcement officers211 or sprayed them with chemical agents,212 among others.213 On its face, the statute appears to cover not only forcible assault—i.e., “an attempt or threat to injure”214—but broader categories of conduct such as forcibly opposing or impeding a federal officer.215 However, regardless of the statutory term at issue, the conduct proscribed by Section 111 must be forcible, which does not require physical contact but, in one formulation, requires at least some “display of physical aggression toward the officer.”216 Federal courts disagree on whether Section 111 also requires, at a minimum, simple assault—meaning an attempt or threat to injure that does not involve actual physical contact, a weapon, bodily injury, or intent to commit certain felonies.217 Section 111 protects “any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services)” and protects such individuals from being harmed while “engaged in or on account of” the person’s “performance of official duties.”218 The statute may also protect state and local officers acting in cooperation with, and under the control of, federal officers,219 and private citizens when they are assisting federal employees in their official duties.220 Determining whether an officer or employee is “engaged in . . . performance of official duties” calls for a fact-specific analysis, but the officer or employee does not necessarily have to be “on duty” to meet the standard so long as he or she is carrying out a federal function.221 Importantly, Section 111 also 208 Acts under the statute that qualify as only “simple assault” are punishable by up to one year in prison, while acts that “involve physical contact with the victim of that assault or the intent to commit another felony” are punishable by imprisonment for up to eight years. Id. § 111(a). Use of a deadly or dangerous weapon or infliction of bodily injury enhances the applicable penalty to up to twenty years in prison. Id. § 111(b). 209 Id. § 111(a)(1). 210 Capitol Breach Cases, supra note 155. 211 E.g., Criminal Complaint, United States v. Blair, No. 1:21-mj-00211 (D.D.C. 2021). 212 E.g., Affidavit in Support of Criminal Complaint and Arrest Warrant, United States v. Nichols, No. 21-MJ-102; No. 21-MJ-103 (D.D.C. 2021). 213 For a synopsis of charges filed to date, see generally Capitol Breach Cases, supra note 155. 214 United States v. Wolfname, 835 F.3d 1214, 1217 (10th Cir. 2016). 215 18 U.S.C. § 111(a)(1). 216 United States v. Taylor, 848 F.3d 476, 493 (1st Cir. 2017). 217 Compare Wolfname, 835 F.3d at 1218 (“Because a § 111(a)(1) conviction for resisting, opposing, impeding, intimidating, or interfering must fall into one of these two categories, a conviction for any of these acts necessarily involves—at a minimum—simple assault.”) and United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir. 2008) (similar), with United States v. Gagnon, 553 F.3d 1021, 1026 (6th Cir. 2009) (concluding a violation of Section 111 does not necessarily require an assault). 218 18 U.S.C. § 111. 219 United States v. Hooker, 997 F.2d 67, 74 (5th Cir. 1993); United States v. Burns, 725 F. Supp. 116, 130 (N.D.N.Y. 1989). 220 See, e.g., United States v. Holder, 256 F.3d 959, 966 (10th Cir. 2001) (affirming conviction under § 111(a) where defendant shot a private citizen assisting a United States Department of Agriculture employee in building a fence to comply with a wetlands easement). 221 See United States v. Perea, 818 F. Supp. 2d 1293, 1303 (D.N.M. 2010) (collecting cases where victim was not necessarily on-duty). Congressional Research Service 23 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues requires that a person intend to engage in the proscribed conduct but does not require knowledge that the person subjected to the conduct is a federal officer or employee.222 Protection of Officers and Employees of the United States: 18 U.S.C. § 1114 The same government officers and officials protected by Section 111 also fall within the scope of Section 1114 of Title 18 of the U.S. Code, which criminalizes the attempted or actual killing of such individuals.223 The maximum penalties authorized by the statute vary based on the circumstances and defendant’s state of mind.224 For example, a minimum sentence of life imprisonment is mandated where a federal officer or official is murdered by “poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing,” or in the commission of “kidnapping, treason, espionage” or “sabotage,” among other things.225 Murder, for Section 1114 purposes is “the unlawful killing of a human being with malice aforethought”226—a notoriously confusing concept,227 which generally requires either intent to inflict “serious bodily injury” or kill, or an “extreme recklessness and wanton disregard for human life.”228 Kidnapping: 18 U.S.C. § 1201 Section 1201 of Title 18 of the U.S. Code prohibits kidnapping and related behavior in certain contexts.229 The statute departs from the original common law definition of kidnapping, which 222 United States v. Feola, 420 U.S. 671, 684 (1975). 223 18 U.S.C. § 1114. Section 1114 is a predicate offense for 18 U.S.C. § 2339A discussed above. 224 Id.; id. §§ 1112, 1113. 225 Id. § 1111 226 Id. 227 See generally United States v. Delaney, 717 F.3d 553, 555-59 (7th Cir. 2013) (describing malice aforethought and related terms and surveying the confusion often accompanying such concepts); Malice Aforethought, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining malice aforethought as “encompassing any one of the following: (1) the intent to kill, (2) the intent to inflict grievous bodily harm, (3) extremely reckless indifference to the value of human life (the socalled ‘abandoned and malignant heart’), or (4) the intent to commit a dangerous felony (which leads to culpability under the felony-murder rule)”). 228 Frascarelli v. United States Parole Comm’n, 857 F.3d 701, 705-06 (5th Cir. 2017) (quoting United States v. Browner, 889 F.2d 549, 551-52 (5th Cir. 1989)); accord United States v. Slager, 912 F.3d 224, 235-36 (4th Cir. 2019), cert. denied, 139 S. Ct. 2679 (2019) (“Malice aforethought may be established by evidence of conduct which is reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a [factfinder] is warranted in inferring that [the] defendant was aware of a serious risk of death or serious bodily harm.” (quoting United States v. Ashford, 718 F.3d 377, 384 (4th Cir. 2013)). 229 18 U.S.C. § 1201. Another similar statute is the federal hostage taking statute—18 U.S.C. § 1203. See United States v. Carrion-Caliz, 944 F.2d 220, 223 (5th Cir. 1991) (observing that “the federal kidnapping statute and the Hostage Taking Act are quite similar” with respect to their language and the conduct they prohibit). Under § 1203 it is a crime to seize or detain an individual and threaten to kill, injure, or continue the detention of that individual in order to compel the government or another individual to engage in, or refrain from, some action. 18 U.S.C. § 1203. In contrast to § 1201, which has limited “application to acts that occur beyond the borders of the United States,” § 1203 “was adopted specifically ‘to extend jurisdiction over extraterritorial crimes.’” Carrion-Caliz, 944 F.2d at 224 (quoting United States v. Yunis, 681 F.Supp. 896, 904 (D.D.C.1988)). Consistent with its focus on extraterritorial crime, § 1203 ordinarily does not apply to conduct committed inside the United States. 18 U.S.C. § 1203(b)(2). Thus its application to domestic terrorism may be limited, although there are statutory exceptions that could make the statute relevant in certain circumstances—such as where “the governmental organization sought to be compelled is the Government of the United States.” Id. Section 1203 is a predicate offense for 18 U.S.C. § 2339A discussed above. Additional federal statutes prohibit certain kidnapping threats. See infra, § “Crimes Involving Threats.” Congressional Research Service 24 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues narrowly referred to “tak[ing] and carry[ing] a person by force and against his will.”230 In contrast, Section 1201 encompasses a much broader array of conduct where a person is taken or confined without consent.231 Under Section 1201(a) the statute applies where a defendant has “unlawfully seize[d], confine[d], inveigle[d], decoy[ed], kidnap[ped], abduct[ed], or carri[ed] away” a victim.232 The Supreme Court has observed that this “[c]omprehensive language was used to cover every possible variety of kidnapping.”233 Thus, unlike kidnapping under the common law, Section 1201 does not require “asportation”—the carrying away of the victim.234 Instead, restraining the victim’s freedom, for example by seizure or confinement, may be sufficient.235 In another divergence from common law kidnapping, a defendant may violate Section 1201(a) even if he does not use force—rather, tactics such as placing the victim in fear,236 or using “false representations” or “promises” may also run afoul of the statute.237 Despite this breadth, there are several limits on the applicability of Section 1201(a). First, the defendant must “hold[] for ransom or reward or otherwise any person,” which according to the Supreme Court, “implies an unlawful physical or mental restraint for an appreciable period against the person’s will and with a willful intent so to confine the victim.”238 The “‘holding’ requirement is an essential element of kidnapping and must be established in every case,”239 but “it has received surprisingly little attention in the case law.”240 One federal appellate court has suggested that holding requires more than fleeting conduct such as “momentary detention in the course of a holdup.”241 Courts also have interpreted the requirement that the victim be held for a prohibited purpose—namely “ransom or reward or otherwise”—broadly.242 As one federal appellate court explained, a defendant need only hold a victim “for any reason which would in any way be of benefit” to the defendant.243 Second, Section 1201(a) requires that the conduct implicates one of several jurisdictional nexuses, which may be satisfied where, for example, the defendant travels in interstate commerce in furtherance of the offense or where the victim is a federal official or employee.244 Third, courts have interpreted Section 1201(a) to impose intent requirements on the part of the defendant.245 230 United States v. Young, 512 F.2d 321, 323 (4th Cir. 1975). 231 Id. 232 18 U.S.C. § 1201(a). 233 Chatwin v. United States, 326 U.S. 455, 463 (1946). 234 United States v. Etsitty, 130 F.3d 420, 426 (9th Cir. 1997), opinion amended on denial of reh'g, 140 F.3d 1274 (9th Cir. 1998). 235 18 U.S.C. § 1201(a). 236 Chatwin, 326 U.S. at 460; accord WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 18:2(a) (3d ed. 2019). 237 United States v. Hoog, 504 F.2d 45, 51 (8th Cir. 1974). 238 Chatwin, 326 U.S. at 460. 239 United States v. Larsen, 615 F.3d 780, 787 (7th Cir. 2010). 240 LaFave, supra note 236, § 18.2(a). 241 United States v. DeLaMotte, 434 F.2d 289, 292-93 (2d Cir. 1970). 242 United States v. Small, No. 20-5117, 2021 WL 486879, at *3 (6th Cir. Feb. 10, 2021). 243 Id. 244 18 U.S.C. § 1201. 245 See United States v. Miers, 686 F. App’x 838, 843 (11th Cir. 2017) (requiring that government must prove that defendant acted knowingly and willfully to “support a conviction under 18 U.S.C. § 1201(a)”); United States v. Ouedraogo, 531 F. App’x 731, 744 (6th Cir. 2013) (similar); United States v. Garza-Robles, 627 F.3d 161, 166 (5th Cir. 2010) (similar); United States v. Eng., No. 18 CR. 492 (PGG), 2020 WL 7773606, at *15 (S.D.N.Y. Dec. 30, Congressional Research Service 25 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Violations of Section 1201(a) may ordinarily be punished by up to life imprisonment.246 For violations resulting in death, however, Section 1201(a) imposes a mandatory minimum penalty of life imprisonment, and authorizes the death penalty.247 A separate subsection—Section 1201(c)— also authorizes up to life imprisonment for conspiracies that violate Section 1201.248 Prosecutions under Section 1201 have included, among others,249 that of six defendants in connection with the 2020 plot to kidnap Michigan Governor Gretchen Whitmer as part of a purported plan to overthrow the government.250 Crimes Involving Infrastructure or Federal Property Depending on where they occur and what they target, acts of domestic terrorism could conceivably run afoul of various federal criminal statutes that prohibit illicit conduct with respect to certain infrastructure or property.251 For example, acts of domestic terrorism that occur on, or otherwise implicate, federal property could violate a number of federal criminal statutes protecting federal government property from destructive or violent behavior, among other things. A detailed analysis of these statutes is available in other CRS products,252 but statutes that could be relevant to acts of domestic terrorism involving federal property include:   Vandalism of Government Property, 18 U.S.C. § 1361: Authorizes various fines and prison terms for willful injury of federal property.253 Restricted Buildings or Grounds, 18 U.S.C. § 1752: Imposes a range of criminal penalties254 for certain conduct at “restricted building or grounds,” which are defined to include, among others, locations where a “person protected by the 2020) (similar); United States v. Eason, No. 15-20015, 2016 WL 3545467, at *1 (C.D. Ill. June 22, 2016), aff'd, 854 F.3d 922 (7th Cir. 2017) (similar). 246 18 U.S.C. § 1201(a). 247 Id. 248 Id. Conspiracy is discussed in greater detail, infra, § “Conspiracy.” 249 See, e.g., United States v. Medina, No. 2:20-CR-119, 2021 WL 1152708, at *1 (S.D. Ohio Mar. 26, 2021) (providing background of § 1201 prosecution connected to a “days-long hostage situation”). 250 Press Release, U.S. Dep’t of Justice, Six Arrested on Federal Charge of Conspiracy to Kidnap the Governor of Michigan (Oct. 8, 2020), https://www.justice.gov/opa/pr/six-arrested-federal-charge-conspiracy-kidnap-governormichigan; Criminal Complaint, United States v. Fox, No. 1:21-mj-416 (W.D. Mich. 2020). Several defendants in the matter have also been charged with other offenses such as “conspiracy to use a weapon of mass destruction and . . . federal firearms violations.” Press Release, U.S. Dep’t of Justice, Federal Grand Jury Returns a Superseding Indictment Adding New Charges in the Conspiracy to Kidnap Michigan Governor Gretchen Whitmer (Apr. 28, 2021), https://www.justice.gov/opa/pr/federal-grand-jury-returns-superseding-indictment-adding-new-charges-conspiracykidnap. 251 See, e.g., 18 U.S.C. § 43(a), (d)(1) (prohibiting certain damage or threats directed at animal enterprises such as zoos, circuses, aquariums, agricultural fairs, animal breeders, and academic or commercial entities engaged in animal research or testing (among others)); id. § 1369 (prohibiting, among other things, willful injury to, or destruction of, veteran’s memorials “located on property owned by, or under the jurisdiction of, the Federal Government”); id. § 1855 (criminalizing, among other things, willfully setting fires to “timber, underbrush, or grass” without authority on certain federal lands); id. § 2152 (proscribing certain acts of trespass, injury, or destruction with respect to the “works or property or material of any submarine mine or torpedo or fortification or harbor defense system owned . . . by the United States”). 252 See generally CRS Legal Sidebar LSB10493, Federal Criminal Laws Applicable to Rioting, Property Destruction, and Related Conduct, by Peter G. Berris and Michael A. Foster; CRS Legal Sidebar LSB10564, Federal Criminal Law: January 6, 2021, Unrest at the Capitol, by Michael A. Foster and Peter G. Berris. 253 18 U.S.C. § 1361. Section 1361 is a predicate offense for 18 U.S.C. § 2339A discussed above. 254 Id. § 1752(b). Congressional Research Service 26 Domestic Terrorism: Overview of Federal Criminal Law and Constitutional Issues Secret Service,” such as the Vice President, “is or will be temporarily visiting.”255 Conduct prohibited at restricted buildings or grounds includes: (1) knowingly entering or remaining without lawful authority; (2) knowingly engaging in disruptive conduct, or impeding ingress or egress, “with intent to impede or disrupt the orderly conduct of Government Business or official functions;” and (3) knowingly engaging in “any act of physical violence against any person or property.”256  Unlawful Activities at United States Capitol Buildings and Grounds, 40 U.S.C. § 5104: Authorizes various criminal penalties257 for a range of conduct and activities on Capitol grounds or in Capitol buildings, specifically defined by a separate statute to include certain streets, roadways, and other areas surrounding the Capitol itself. Capitol buildings are defined to include the U.S. Capitol building and House and Senate office buildings, among other things.258 In general, Section 5104 prohibits:  knowingly, with force and violence, entering or remaining on the floor of either house of Congress;    willfully and knowingly obstructing or impeding passage through or within the Capitol grounds or buildings; willfully and knowingly engaging in an act of physical violence (defined as an act involving assault, other infliction or threat of infliction of death or bodily harm to an individual, or damage or destruction of real or personal property) on Capitol grounds or in Capitol buildings; and, except as authorized by Capitol Police Board regulations, carrying or having readily accessible a firearm, a dangerous weapon (incl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR46829. Public record. Not legal advice.