How to Prosecute the Tesla Bombers
"States should enforce, or amend as needed, their own terrorism and racketeering laws."
"Last week, the New York Post reported that “DOGEQUEST,” an anonymous website, had published a partial list of Tesla owners’ names, addresses, and phone numbers. The site, since deleted, featured a Molotov cocktail image as a cursor, and a map of supposed Tesla owners and “DOGE landmarks.”
"Tesla CEO Elon Musk described the doxxing site as an example of “extreme domestic terrorism;” the White House agreed. In the Department of Justice’s press release announcing charges against three suspected Tesla arsonists, Attorney General Pam Bondi warned would-be criminals, “if you join this wave of domestic terrorism against Tesla properties, the Department of Justice will put you behind bars.”
"Musk and the White House agree that those targeting Tesla are committing domestic terrorism. And to most normal people that seems obvious. But with its intricacies, federal terrorism law may not be the best tool to hold them accountable. Instead, states should take the lead and enforce their own laws against the Tesla arsonists.
"The DOJ has so far indicted three suspects for destroying, or trying to destroy, Tesla property. Each faces arson-related charges and is accused of using Molotov cocktails in the commission of his crime.
"The three alleged crimes were connected with a coordinated campaign against Musk and Tesla. In February, The Hill reported that “Democratic activists” were “planning a protest campaign” against Musk, which would be held “outside offices of lawmakers and Tesla dealerships.” One element of this effort was the “Tesla Takedown,” a nominally “peaceful protest” against “Musk’s illegal coup.” The Takedown was co-sponsored by the Troublemakers, a Seattle-based “community” focused on “direct action,” and The Disruption Project, a group “dedicated to supporting uprisings, resistance and mass direct action.”
"This campaign may have contributed to the three criminal incidents charged by DOJ. But are these crimes domestic terrorism, as defined under federal law?
"On the one hand, the statutory definition of domestic terrorism seems to say so:
activities 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.
"Since federal law defines a Molotov cocktail as a weapon of mass destruction, the case for the defendants’ actions meeting this definition seems relatively straightforward. Progressives will claim that setting fire to an unoccupied vehicle is not “dangerous to human life.” But the DOJ could reasonably argue that carrying and throwing firebombs imperils people’s lives.
"Legally speaking, though, not everything that meets this statutory definition can be prosecuted as a violation of the federal crime of terrorism. Rather, per 18 USC § 2332b(g)(5), a conviction requires that the government prove that an individual accused of terrorism committed one or more predicate crimes. Arson is one of these predicate crimes, but the statute’s terrorism label applies only to arson incidents that involve government property, interstate commerce, or certain maritime or critical infrastructure facilities.
"This may seem like pedantry to those on the right, who, to paraphrase Supreme Court justice Potter Stewart, know domestic terrorism when they see it. But radical leftists know the legal minutiae well and makes tactical choices accordingly. They know they can commit arson and avoid federal terrorism charges, as long as they don’t target federal property. This as opposed to other, more obvious terror methods, like hijacking an airplane, which always involve a federal nexus.
"These nuances explain many violent activists’ preference for fire. A DHS report on eco-terrorism, for example, reported 239 arson or bombing attacks conducted by eco-terrorists between 1995 and 2010. The Earth First! Journal, which calls itself the “voice of the radical environmental movement,” noted in 2020 that fire is “firmly back in the activist’s toolbox.” Why? Because it’s easier to dodge a federal terrorism charge when using a Molotov.
"Rather than the feds, state governments should step in to hold these and other anti-Tesla demonstrators accountable. States should enforce, or amend as needed, their own terrorism and racketeering laws. States can more easily revise their statutes than Congress, and they can fill in gaps in federal law to ensure that the Left’s preferred predicate crimes can be prosecuted as terrorism or racketeering. Additionally, state courts may prove more sympathetic venues than federal courts, as demonstrated by the recent $660 million verdict against Greenpeace for its role in disrupting construction of the Dakota Access Pipeline.
"The Trump administration can also actively assist state investigations through the operation of Joint Terrorism Task Forces. This model has helped secure terrorism convictions in the past. In Arizona, for example, federal and state officers cooperated to convict Mahin Khan, an ISIS supporter, on state charges of Terrorism, Conspiracy to Commit Terrorism, and Conspiracy to Commit Misconduct Involving Weapons, because the state terrorism statute was more broadly applicable.
"For conservatives, denouncing “domestic terrorism” on social media may be emotionally satisfying. But the real goal—holding these criminals to account, disrupting their networks, and forcing the Left to address the terroristic nature of such behavior—can be better served by state-level prosecutions."
