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PostDefining Terrorism, and the Smollett Case (David Duggan, USA, 03/30/19 8:04 am)
Nothing like spending your Friday when you should be doing your taxes trying to explain why the US government needs an international (or interstate) hook to prosecute terrorism.
At least until the Obamacare decision in 2012, the federal government was thought to be a limited government, without the power, for instance to tell me to cut my grass. Now, however, it would appear there is no "limiting principle" to the Government's power, so long as Congress cloaks it under the guise of a tax, to wit: "anyone who does not cut his lawn is subject to a $10 per acre tax." Still, the Supreme Court has struck down, inter alia, statutes purporting to criminalize the possession of a weapon within 1000 feet of a school, the "Gun-Free School Zones Act" of 1990 (US v. Lopez; 1995), and the "Violence Against Women Act" (US v. Morrison; 2000), because of the lack of interstate commerce in the commission of the crime.
The Constitution gives Congress two specific law-making authorities in the realm of criminal law: Art. I, sec. 8, cl. 3 ("Congress shall have power to ... regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"), and the 14th Amendment, sec. 5 ("Congress shall have power to enforce, by appropriate legislation, the provisions of this article). Hence, the mail and wire fraud statutes inasmuch as fraudsters use the means and instrumentalities of interstate commerce to commit their frauds, and at least theoretically, the Violence Against Women Act (defended before the Supreme Court under the 14th Amd). But the guarantees of equal protection and due process of the 14th Amd apply only to "state actors," and in Morrison, this was a private sexual encounter gone wrong.
So, merely as a hypothetical, I could take my home-forged ninja stars to the latest martial arts movie showing down the street and try them out against the crowd without violating a federal law. When McVeigh bombed the federal Murrah Building in downtown Oklahoma City, he was specifically targeting a federal building because he was upset over federal law enforcement excesses at Waco and Ruby Ridge. The federal government has the right to protect its employees and property, so assuming that this was "domestic terrorism," it could be prosecuted under that theory (murder of a federal employee in the performance of his official duties is a crime under 18 US Code sec. 1114). International terrorism, by contrast requires that the acts of violence violate the laws of the United States or a state if committed within their borders; that they be "intended" to intimidate civilian populations or influence the policy or conduct of a government; and that they "occur primarily outside the territorial jurisdiction of the United States." 18 US Code sec. 2331(1) for those keeping score at home.
Which of course brings us to the dismissal of all 16-felony counts against Empire actor Jussie Smollett by the C[r]ook County State's Attorney. I won't bother WAISers with the more sordid aspect of this decision, including the influence-peddling by former Michelle Obama chief of staff Tina Tchen, and the connections of the Obamas to the Smollett family which theoretically caused the State's Attorney, Kim Foxx (probably no relation to Redd, though equally funny in a perverse way) to recuse herself. (This of course caused a non-elected front man for the office to say that forfeiture of the $10,000 cash bond and performance of 18 hours of "community service" at Jesse Jackson's Rainbow Push Coalition was a worthy punishment.) But with a 17% murder "clearance rate," the State's Attorney and the Chicago Police Dept plainly have better things to do with their time. The feds are looking into this, but for the life of me, I can't see the federal crime here, even if the $3,500 check to Smollett's body-building alleged co-conspirators was mailed, or e-mails sent to further the scheme. Because I can't see a victim or a potential victim.
Let's say I think I'm a chicken and go out into the middle of the road and do my chicken walk and squawk around and call the police for assistance in getting to the other side. The police come and help me across. Is my call to the police a crime? The police did their job. Now, if in the Smollett case, the police had seen through this from the beginning, as everyone with a brain did, they could have done a polite brush-off and said that "we're investigating with all the resources at our disposal." Let the case fall apart of its own weight. The City is billing Smollett for the $130,000 in police time spent in tracking down this hoax and good luck in collecting that. The more curious thing to me is how this fiasco has split Mayor Emanuel from his buddy and patron Barack Obama. Of course there is no honor among thieves, but one might think that with Emanuel thankfully leaving office in a month, he'd realize the big picture here and go out with a nod to the GLBT community which elected both of them, and say, "we all need to grow up a little."
But for now I'm happy that the Cubs are in first place, even if my beloved WFMT did not reprise retired morning announcer Carl Grapentine's opening day montage of audio clips. Go Cubs Go.
JE comments: Won't dropping the Smollett case open the door to copycat acts? And go Cubs, who at this writing remain undefeated (one victory, zero losses). My Detroit Tigers are at a respectable .500 (1 and 1).