By design, antifa is a decentralized, far-left movement of loosely knit “resistance” networks operating primarily in Democratic strongholds. But in recent years, antifa’s forces have become highly organized and increasingly sophisticated, with organized crime cells cropping up across the country. Part 2 of this Washington Examiner series, Antifa, Inc., will examine whether federal RICO charges could ever be brought against antifa associates acting in furtherance of a criminal conspiracy.
The question of whether antifa is, in fact, an organization is a long-debated legal question, one Washington has wrangled with for years.
The debate has stumped some lawmakers, unsure about antifa’s physical framework, while spurring others to want to unmask these militants engaged in high-level, and sometimes large-scale, coordinated efforts.
Although many antifa chapters have the hallmarks of a criminal enterprise, antifa’s anonymous and seemingly amorphous nature raises questions regarding whether a diffuse, purportedly leaderless movement can be criminally charged under federal racketeering and conspiracy law.
Statutory stipulations: What meets the definition of racketeering under RICO?
In 1970, Congress enacted the Racketeering Influenced and Corrupt Organizations Act as a legal mechanism for bringing down organized crime syndicates, namely mobs and street gangs such as “La Cosa Nostra,” the Italian mafia.
RICO was designed to dismantle a criminal enterprise, targeting its organizational structure, operations, and illicit funding—instead of just pursuing criminals, who worked in tandem, as individual actors.
An entity must exhibit a degree of organization to be deemed a racketeering enterprise. In 2009, a Supreme Court decision in Boyle v. United States specified that such an enterprise must have at least three structural attributes: purpose, established relationships among those associated with the group, and longevity.
Citing the 1981 case United States v. Turkette, the majority clarified that a criminal enterprise is “a continuing unit” that functions toward achieving a common agenda. It does not need a hierarchical structure or a chain of command, per se, nor are fixed roles required.
In antifa’s case, antifa activists are ideologically driven, collectively seeking the overthrow of “oppressive” institutions, such as the U.S. judicial system, through street-level violence. Though they lack central leadership, some antifa cells that have existed since the 2000s are accredited by a governing body, e.g., the national Torch Network, and adhere to agreements of solidarity.
HOW THE ANTIFA MOVEMENT HAS METASTASIZED
A group name, regular meetings, dues, rules and regulations, disciplinary procedures, and induction or initiation ceremonies are not necessary for an organization to qualify as a racketeering enterprise. Furthermore, according to the majority’s ruling in Boyle, the crimes committed do not have to fit “old-fashioned” stereotypes of gangster conduct, such as extortion.
The dissenting opinion, meanwhile, argued that Congress only intended for “business-like entities” to fall within RICO’s reach.
However, in the 1994 case National Organization for Women v. Scheidler, the Supreme Court unanimously held that economic motive is not needed to satisfy the statutory definition of a racketeering enterprise, meaning an organization does not have to derive financial benefit from the alleged activities for RICO to apply.
RICO defines racketeering activity as any of the enumerated crimes, referred to as “predicate acts” or underlying criminal offenses. The outlined offenses, on which a RICO case is built, are wide-ranging, mostly typical of white-collar crime, such as wire fraud, gambling, bribery, embezzlement, money laundering, and loan sharking.
More violent crimes are also named, including murder and arson, the latter a typical antifa tactic for attacking federal property. Antifa militants frequently firebomb government facilities, torching courthouses and setting police precincts on fire, as seen in the summer of 2020.
Antifa cells ascending
Last month, suspected members of an antifa cell allegedly launched a coordinated attack on an Immigration and Customs Enforcement facility in Alvarado, Texas, marking the emergence of one of the most organized antifa cohorts in the country.
“I don’t see any barrier for the federal government to consider using RICO to go after an anti-ICE antifa cell in Alvarado, Texas, or anywhere else by the way,” Heritage Foundation senior legal fellow Cully Stimson said, “as long as the predicate offense or offenses have been committed, and it used an instrument of communication across state lines for purposes of it.”
MEET THE ANTIFA CELL CHARGED WITH TERRORISM AND ATTEMPTED MURDER OVER ‘AMBUSH’ AT TEXAS ICE FACILITY
If the antifa cell’s purpose was to target federal officers and all members of the cell agreed to that, then this constitutes a conspiracy, Stimson told the Washington Examiner.
According to the criminal complaint jointly charging the suspects, as part of an Independence Day “ambush” on immigration authorities, the heavily armed anti-ICE cell had lured Homeland Security officers outside before shooting at them from various vantage points. A responding Alvarado police officer was reportedly shot in the neck by one of the gunmen positioned in nearby woods.
Per probable cause statements, the black-clad assailants were equipped with a trove of tactical gear, including ballistic Kevlar vests, 12 sets of body armor, and two-way handheld radios. Authorities also found cellphones stuffed inside a Faraday bag, a specially designed device blocking the transmission of electromagnetic signals; criminals commonly use this type of protective pouch to prevent police from tracking their location.
The cell allegedly communicated on the encrypted messaging service Signal using codenames and performed reconnaissance of the Prairieland Detention Facility before the shooting. According to authorities, one member’s house served as the “staging location” of the operation, a place to stockpile firearms and provide a group hideout.
None of the 14 suspects are facing racketeering charges. Accused accomplices John Phillip Thomas (alias “Roy”) and Lynette Read Sharp (alias “Hippie” or “Candied Dynamite”) were federally charged with accessory after the fact for allegedly aiding suspected ringleader Benjamin Song’s escape. Song (alias “Champagne” or “Delete”) absconded from the scene of the shooting, allegedly with the help of Thomas, smuggling him out of the area, and evaded arrest for a week. Amid an FBI manhunt, Song made the Texas 10 Most Wanted Fugitive List on state charges of engaging in organized crime, among a slew of serious offenses. Video footage via the Anarcho Airsoft Team account on Instagram appears to show Song providing weapons training to antifa followers in the Dallas-Fort Worth region.
FBI CAPTURES SUSPECTED SHOOTER IN AMBUSH OF ICE AGENTS AT TEXAS DETENTION CENTER
Antifa-aligned allies are mobilizing online in support of the alleged Alvarado attackers. The so-called DFW Support Committee has raised more than $30,500 for the suspects on GiveSendGo. Anarchist forums promote the fundraising campaign, which is eventually supposed to collect $200,000 for each defendant. The bulk of the legal defense fund comes from anonymous donors.
RICO’s applicability to rioting and riot-related crimes
Sen. Ted Cruz (R-TX), a longtime member of the Senate Judiciary Committee, has introduced an amendment to the RICO statute that would add rioting to the long list of predicate acts, thereby classifying rioting as racketeering activity.
Under the Anti-Riot Act, traveling across state lines or using interstate communications to incite, organize, promote, or participate in a riot is a federal crime. Aiding and abetting an agitator or rioter through these means is also federally outlawed.
TED CRUZ URGES FBI TO OPEN RICO INVESTIGATION INTO ANTIFA
By broadening RICO’s scope, the federal government could pursue those providing financial and logistical support, rather than simply charging suspects with violations of the Anti-Riot Act.
Cruz’s proposed bill, titled the Stop Financial Underwriting of Nefarious Demonstrations and Extremist Riots (Stop FUNDERs) Act, came in response to nationally coordinated uprisings against ICE.
Some of the activist organizers inciting the anti-ICE civil unrest are well-funded entities, including the Party for Socialism and Liberation, a radical-left political party bankrolled by Shanghai-based billionaire and Maoist megadonor Neville Roy Singham.
WHO IS FUNDING THE ANTI-ICE ACTIVISTS IN LA?
“There is a pattern behind all of these riots,” Cruz said in a statement. “There is money behind the checks that are being written, coming from foreign adversaries and domestic NGOs [non-governmental organizations].”
Cruz’s mob-busting measure coincides with a substantial increase in assaults on ICE agents. Attacking a federal officer already triggers a federal offense.
“But assault is a blunt force instrument, no pun intended, because it only gets at the assaulter,” Stimson said. “It doesn’t get at the broader arrangement between the people who showed up en masse to assault the ICE officers.”
On why RICO is such a powerful tool for prosecutors to wield against rioters, Stimson noted the admissibility of co-conspirator statements in RICO trials. Out-of-court testimony, known as hearsay, is generally not allowed at trial, whereas in conspiracy proceedings, a courtroom rule will enable prosecutors to enter into evidence otherwise inadmissible confessions of a conspiracy.
Stimson, a former federal prosecutor and trial attorney, said admissions are instrumental in “getting the goods” on the conspirators. “So I suspect that they’re looking at a variety of ways of holding folks criminally accountable for targeting ICE officers.”
AFTERSHOCKS OF 2020: TRUMP DOJ RAMPS UP PROSECUTIONS IN PROTEST CRACKDOWN
The Federal Bureau of Investigation previously told the Washington Examiner that the agency is focused on investigating individuals suspected of criminal activity, as opposed to organizations, when asked whether the agency would go after the antifa organizationally.
“We do not investigate groups or membership in groups but focus on the criminal activity of individuals,” the FBI’s public affairs office said.
Other prosecutorial tools
Stimson noted that under Title 18, the U.S. criminal code, prosecutors have a wide variety of penal code provisions besides RICO at their disposal.
It boils down to which tool is best for bringing in other people implicated in the criminal operation, Stimson said. Conspiracy to thwart the enforcement of federal immigration law, for example, is not only a standalone crime but also a conspiracy to commit said crime.
“So you don’t have to go down the RICO road,” Stimson said. “Don’t fall under the illusion that RICO is the ultimate hammer. It’s not. There are a lot of other hammers in Title 18, and so it’s not like there’s RICO, which is really serious, and then there’s all these other sort of less serious crimes. No, they’re all serious. RICO is just a tool, just like any other toolkit in the federal criminal code that can be used.”
Federal prosecutors are not automatically trying to “reach for the gold brass ring” and invoke RICO, only to be disappointed if they can’t and default down another avenue, Stimson said. “They’re going to look at everything equally and decide which one or ones give the prosecutors the best tool to criminally incapacitate people.”
Racketeering charges can also be filed at the state level, as dozens of states have adopted their own version of RICO.
In 2023, Georgia’s GOP Attorney General Chris Carr announced sweeping state RICO charges against 61 activists allegedly involved in an antifa-led occupation, called “Stop Cop City.”
According to the sprawling 109-page indictment, the suspects conspired to prevent the construction of an 85-acre Atlanta police training center by coordinating and carrying out acts of political violence, intimidation, and property destruction.
GEORGIA INVESTIGATORS ARREST BAIL FUND ORGANIZERS TIED TO ‘COP CITY’ PROTESTS
The charging documents identified 225 such incidents, including when defendants had hurled a Molotov cocktail through a window of the state’s Department of Public Safety headquarters, injuring two employees and setting the building ablaze.