Domestic Terrorism: Defending Politically Motivated Prosecutions

I suppose that I should start by saying that I question the use of the term “domestic terrorism”. It seems to have come into vogue after the foreign terrorist attacks on September 11, 2001, and is used primarily to generate a visceral reaction from the public. I recall church bombings and racially motivated murders during the Civil Rights movement of the 1960s and 1970s,  but I do not remember the term “terrorist” used to describe members of the Ku Klux Klan (KKK) even though their actions were clearly intended to generate terror within the African American community.

“Terrorism” is a term that Americans have come to live with since at least the 1970s as foreign groups have attacked primarily unarmed civilian targets in the United States, Europe and elsewhere to further political goals. The worst terrorist attack against the United States occurred on September 11, 2001, when members of Al Qaeda highjacked several American passenger liners and flew them into the World Trade Center in New York and the Pentagon in northern Virginia. That act led to American attacks on Afghanistan and Iraq, as the U.S. attempted to root out and destroy foreign terrorism.

We should be cautious, however, in using this emotionally laden term to describe our fellow Americans. And we must be doubly cautious when attacks are generated at “protestors” as opposed to those who engage in criminal acts. A large number of Americans disapprove of Elon Musk and his so-called Department of Government Efficiency (DOGE)[1], and protesting against Tesla seems an effective way to voice that disagreement. However, the protestors appearing at Tesla dealerships are not criminals, and people engaged in property damage to Tesla vehicles and charging stations may be criminals, but they are not terrorists.

[1] DOGE, of course, is not a government “Department”, nor is it focused upon “efficiency”. To the contrary, its actions have made the government less efficient as tens of thousands or more employees have been fired rendering it impossible for the federal government to perform its tasks. If curtailing fraud waste and abuse were a goal of the Trump Administration, the Inspector Generals of the various departments would not have been fired—indeed, it is their mission to find and eliminate fraud, waste, and abuse.

One of the most striking features of so-called “domestic terrorism” is how malleable the term has become. On January 6, 2021, followers of Donald Trump attacked the Capitol resulting in the arrests of over a thousand people. Many reporters and politicians referred to these criminal defendants as “domestic terrorists”; however, on January 20, 2025, President Trump referred to these prosecutions as a “grave injustice” and issued approximately 1,500 pardons. Thus to Donald Trump at least, these protestors were heroes, and, in a flicker of an eye, they went from being terrorists to being completely innocent purely because of political considerations.[2]

[2] During the course of the prosecution of January 6^th protestors, we represented six individuals indicted in federal court in D.C.  As a firm, we believe that anyone accused of a crime should have a proper defense—regardless of political leaning, and we often represent defendants with whom we disagree. Therefore, we believe the Constitution applies to conservatives as well as liberals and that Constitutional rights are of vital importance to everyone. We also believe that labeling criminal defendants as terrorists does a disservice to the criminal justice system and to the nation as a whole.

The Tesla Protests

Recently, as Elon Musk has been inserted into the basic functions of government, his apparent scorched earth policy ostensibly meant to make the government “more efficient” has resulted in loss of employment for tens of thousands of people and government paralysis. He has therefore moved from being a darling of the Progressive Movement to being the face of MAGA, or “Dark MAGA” as Musk likes to refer to himself. As a result, Tesla, the electronic vehicle manufacturer identified with Musk, has lost half of its value. More importantly, for purposes of this article, there have been protests against the company with some vehicles actually being burned at the dealership. There have also been reports of shots fired at some dealerships.

Pamela Bondi, the U.S. Attorney General, has referred to these attacks on Tesla property as “domestic terrorism” and promised that the full force of federal law enforcement will be brought to bear against anti-Tesla or anti-Musk protestors. In her mind, Musk is apparently an American hero rather than the Satanic incarnation of evil many others see. Donald Trump has even joked about sending people who harm Tesla property to a prison in El Salvador.

But public policy should never be based on the view of a particular individual. Rather, it is the conduct itself that should be examined. Do Tesla protestors fit the definition of “domestic terrorists”?

[3] One of the weaknesses of the current President is that he does not seem to realize that words have meaning. It is possible that he uses the term “terrorist” in a colloquial manner divorced from its actual meaning. During his first administration, he was prone to use the term “treason” to describe the actions of anyone who disagreed with him. He referred to General Mark Milley, U.S. Army, as a “traitor” because Milley disagreed with him. Of course, treason has a specific Constitutional definition. Art. III, Sec. 3 defines treason against the United States as consisting only of “levying war against [the United States], or in adhering to their enemy giving them Aid and Comfort”. It would be preposterous to believe that General Milley was a traitor. But then again, it is unlikely that President Trump ever read this part of the Constitution, if he ever read any of it.

Definition of Domestic Terrorism

The most noteworthy aspect of domestic terrorism is that there is no federal crime of domestic terrorism. Rather, the term is contained in the definitional section of the U.S Code, 18 USC 2331, and involves “acts dangerous to human life that are a violation of the criminal laws of the United States” and appears intended to intimidate a civilian population or coerce government action. At first blush, an attack on Tesla at a dealership where no one is placed in danger would not seem to fit this definition. Even if it did, a defendant could not be charged with “domestic terrorism”.

There are other crimes that may come into play. A person who intentionally sets fire to a Tesla could be charged federally with “Arson”.  Pursuant to 18 U.S.C. 844,  anyone who damages property by means of fire or explosives could face a charge of arson, provided the vehicle was to be used in interstate or international commerce. It is a serious offense, and anyone charged with arson should retain an experienced federal criminal defense lawyer to represent him or her at the soonest opportunity. However, a criminal act of protest, even if done for political purposes, is not an act of domestic terrorism.

The definition of domestic terrorism requires an act “dangerous to human life”—property damage, especially damage to unattended property, is seldom dangerous to human life. In fact, there does not appear to be anything in the anti-Tesla, anti-Musk movement that is injurious to human life. Rather, the intent seems to be directed at property damage only. While illegal, it is simply not terrorism.

Differences Between Constitutionally Protected Activity (Protests) and Illegal Activity

One of the more unfortunate aspects of the rhetoric used by Donald Trump, Pamela Bondi, and Elon Musk is the overbroad nature of the language they use. Protests against Elon Musk and/or Tesla are always Constitutionally protected. The First Amendment to the U.S. Constitution protects the right of the people “to peacefully assemble”. Therefore, the right to stand outside a Tesla dealership and encourage potential customers not to buy a Tesla is among the most important rights in the Constitution, and no President, no Attorney General, not even Congress or a state legislature can limit or interfere with the right to peacefully assemble.

Often, protestors focus upon causes that are unpopular. So long as they do not enter private property or engage in criminal activity, they are free to protest. The same is true for any other group that protests whether the cause is political, religious or something else.

In an effort to punish protestors, police will often try to find an ill-defined crime and then wedge it into a situation where it was never intended to apply. In Pennsylvania, for example,  protestors are often charged with Disorderly Conduct.  To be convicted, however, a defendant must have an intent to “cause public inconvenience, annoyance, or alarm or recklessly create a risk thereof” and engage in either “fighting or threatening, or violent or tumultuous behavior”, “use obscene language or make an obscene gesture”, or create a “hazardous or physically offensive condition”. This is a far cry from the “peaceful assembly” contemplated by the constitution and requires a close look at the conduct the police are questioning.[4] Even protests which are loud or “annoying”, however, have Constitutional protection. The protest may annoy Elon Musk or even Donald Trump, but being an annoyance to the President, at least right at this moment, is not illegal.

[4] We have represented pro-life protestors at abortion clinics and other protestors at Black Lives Matter protests. We have been almost universally successful in defending protestors wrongfully charged with criminal conduct, and we have also been almost universally successful at suing state and local governments, school districts, and public universities that have sought to interfere with the right to assemble.

Donald Trump has also sought to use his office to make the protests something more than they really are. He has referred to the protests as “organized events” because the signs held by protestors are like each other. He has suggested that there are financiers to the protests and that these financiers are responsible for terrorist acts because some people, a very small percentage of the protestors, have engaged in criminal conduct. He has even suggested that the handful of attacks on Tesla dealerships were worse than the January 6^th attacks on the Capitol.  Trump has even said that he intends to buy a Tesla.

To be clear, intentional property damage could be a crime and should be prosecuted; however, it is not the most serious crime our nation faces. Every day there are rapes and murders in the United States—crimes far more destructive than an attack on a charging station or a vehicle. Yet, Trump shows virtually no concern for these offenses occurring under his watch. Instead, it is the damage to a handful of Tesla cars that angers him. One could say that rape and murder are state crimes, and that is true. But arson is also a state crime. Trump’s language is disproportionate to the injuries being suffered.

Elon Musk’s greater problem is with the marketability of Tesla, and a drop in sales—something that would truly harm the electric car company—might be evidence that the non-violent protests are working. Even the completely innocent, however, have reason to fear. A combination of Trump’s use of federal law enforcement agencies combined with Musk’s wealth and influence could result in a persecution of the innocent.

Conclusion

Protests are an established part of American history. In 1773, the Sons of Liberty entered a ship owned by the British East India Company and seized 340 chests of tea, throwing them into Boston Harbor. This act has traditionally been viewed as a protest against the Stamp Act imposed on the North American colonies by the British Parliament. Indeed, protesting has a long history in the United States, and, in some instances, some people have engaged in criminal conduct supporting the protest. This is not to suggest that criminal conduct was excusable, but it also does not mean that the protests were illegitimate. During the Vietnam War, millions protested the War. Others attacked draft offices destroying government property.

Since Roe v. Wade, anti-abortion protests have become common. But other people sharing the views of the protestors have attacked and killed abortion clinic workers. This, again, does not mean that murder is ever excusable. But it also does not mean that the anti-abortion protests are illegitimate.

Those people protesting Musk and Tesla should not feel in any way intimidated, and to the extent pressure is brought against them to cease protesting, we can help. We have represented protestors in many circumstances and are well prepared to defend anyone charged with a crime or to file suit to stop state or federal law enforcement from intimidating legitimate protestors. Indeed, these protests are at the center of who we are as a people, and they should continue.