The DOJ, Domestic Terrorism, and School Boards

Civil Rights, Criminal Law & Procedure, and Federalism & Separation of Powers Practice Groups Teleforum

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Widespread concern over continued covid-19 related measures and the implementation of critical race theory in public school curricula has prompted many people to speak out at school board meetings in recent months.  On September 29, 2021, the National School Boards Association submitted a letter to President Joe Biden requesting federal assistance in responding to alleged "acts of violence affecting interstate commerce because of threats to their [NSBA's] districts, families, and personal safety" which in the NSBA’s opinion "could be the equivalent to a form of domestic terrorism and hate speech."  Last week, President Biden’s Attorney General Merrick Garland issued a memorandum directing the Department of Justice to investigate and partner with local law enforcement to address a "disturbing spike in harassment, intimidation, and threats of violence."

Featuring: 

  • Hon. Michael B. Mukasey, Former United States Attorney General

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to the Federalist Society’s virtual event. This afternoon, October 14th, we discuss the DOJ, domestic terrorism, and school boards. My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today’s call.

 

Today, we are fortunate to have with us Mr. Michael B. Mukasey, a judge, former Attorney General of the United States, and currently practicing law in New York State. We are very, very pleased to have him join us this afternoon. Mr. MukaseyJudge Mukaseywas the United States Attorney General from November 2007 to January 2009, and he was a district judge in the United States District Court for the Southern District of New York from 1988 to 2006. He was the chief judge in the year 2000. So I’m very pleased to welcome him this afternoon.

 

After our speaker gives opening remarks, we will turn to audience questions. If you have a question, please enter it into the Q and A at the bottom of your screen, and we will handle questions as we can in the order that they’re received. You can enter questions at any time, so please make use of that function.

 

With that, thank you for being with us today. Judge Mukasey, the floor is yours.

 

Hon. Michael B. Mukasey:  Thank you very much, Evelyn. And thanks to everybody who’s on this webinar. As you’ve been told, the immediate occasion for this gathering is a memorandum from the attorney general. It’s a memorandum dated October 4, and the subject matter is partnership among federal, state, local, tribal, and territorial law enforcement to address threats against school administrators, board members, teachers, and staff.

 

Now, I’m going to get into the substance of the memo, such as it is––and there’s not a whole lot––in a moment, but I should tell you that this entire episode, the background and the memo itself, remind me of nothing so much as the placemats that they used to have in rest stops along the highway that were there to amuse the children while they were waiting for the food. And the placemats would have an illustration carrying the question, “What’s wrong with this picture?” And invariably, the picture would show somebody without a shoe, and a table without a leg, and an airplane flying upside down, and the children were expected to amuse themselves by picking out all the things that were wrong with the picture.

 

      This memo is really, very much the same. It begins––after the subject matter line that I gave you––by stating that, “In recent months, there has been a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff who participate in the vital work of running our nation’s public schools. While spirited debate about policy matters is protected under our Constitution, that protection does not extend to threats of violence or efforts to intimidate individuals based on their views.”

 

Now, you might ask yourself, I suppose, what the federal jurisdiction is over the matters raised in that opening? And we’re going to wonder some more about that when we get into the body of this -- further into the body of this memo, but passing that––and the author of the memo passes it by not describing what the federal jurisdiction is––he says, “The department takes these incidents serious and is committed to using its authority and resources to discourage these threats, identify them when they occur, and prosecute them when appropriate. In the coming days, the department will announce a series of measures designed to address the rise in criminal conduct directed towards school personnel.”

 

Now, notice, we’ve gone from a spike in harassment, intimidation, and threats of violence––and all of it unspecified––to a statement that what we’re dealing with here is criminal conduct directed towards school personnel. The memo goes on to say that, “The meetings will facilitate the discussion of strategies for addressing threats against school administrators, board members, teachers, and staff, and will open dedicated lines of communication for threat reporting, assessment, and response.” Again, no description of precisely what it is -- what activity it is we’re talking about. “The department is steadfast in its commitment to protect all people in the United States from violence, threats of violence, and other forms of intimidation and harassment.” And that’s where it ends.

 

The addressees on this memo are the Director of the FBI, the Assistant Attorney General in charge of the Criminal Division, and all United States attorneys. Interestingly, one other addressee––the only other addresses on the memo––is the Director of the Executive Office for US Attorneys. Now, I don’t know whether any of you are familiar with what the job is of the Executive Office for US Attorneys. It has nothing to do with law enforcement. The Executive Office for US Attorneys provides administrative support and resource allocation to US attorneys’ offices. It also does reports on whether US attorneys’ offices are functioning properly.

 

Here, the unmistakable message, it seems to me, among other things, is that the US attorneys’ offices had better conform their investigative conduct and activities to the priorities set forth in this memo, or the Executive Office for US Attorneys will give them a bad report, and their resources will suffer as a result. That’s only part of what’s threatened by the memo.

 

Taken in the large, because of the absence of any sighted federal jurisdictional basis for either investigation or prosecution, it begins to look, simply from the memo itself, as if the process is, in fact, what’s at stake here rather than the ultimate resultthe process being investigation.

 

One might ask, I guess, how the memo came to be? What occasioned it? According to the reports that I’ve seen, what occasioned it was a letter five days earlier, September 29, from an entity called the National School Boards Association, which went not to the attorney general but to the president and requested “immediate assistance to protect our students, school board members, and educators who are susceptible to acts of violence affecting interstate commerce because of threats to their districts, families, and personal safety.” Now notice, even in this -- this is only in the second paragraph of the letter -- the letter opened by stating that American public schools and its education leaders are under an immediate threat. At least this letter suggests some concern about the question of federal jurisdiction by citing acts of violence affecting interstate commerce. The letter, by the way, nowhere describes such acts, but at least it shows some concern for the question of what the federal government is authorized to do.

 

I should stop here and say that––for those who may not be specifically aware of it––the federal government has no general supervisory authority or police power to investigate, even acts of violence. It has authority to do what it is statutorily authorized to do, and protecting school boards from outbursts at their meetings is not among the things that the federal government is authorized to investigate or prosecute, even assuming that there were -- that prosecutable conduct were to occur. That’s something that, generally, is in the hands of the local authorities.

 

The letter goes on to say that the organization -- “The National School Boards Association specifically elicits the expertise and resources of the US Department of Justice, Federal Bureau of Investigation, US Department of Homeland Security, US Secret Service and its National Threat Assessment Center regarding the level of risk the public-school children, educators, board members, and facilities/campuses. We also request the assistance of the US Postal Inspection Service to intervene against threatening letters and cyberbullying attacks that have been transmitted to students, school board members, district administrators, and other educators.” And it then goes on to say that “these acts of malice, violence, and threats against public school officials have increased. The classification of these heinous actions could be the equivalent to a form of domestic terrorist and hate crimes.” Now that is a line that’s gotten a good deal of publicity. How disruption of school board meetings is a form of domestic terrorism, again, is nowhere explained.

 

This letter, obviously, is longer than the attorney general’s memo. It goes on for five-and-a-half single-spaced pages. The only specifics it presents are the following: it says that an individual was arrested in Illinois for aggravated battery and disorderly conduct during the school board meeting; then during two school board meetings in Michigan, an individual yelled a Nazi salute in protest to masking requirements; and another individual prompted the school board to call a recess because of opposition to critical race theory. It goes on to say that there were similar incidents in various other states, and it says that anti-mask proponents are inciting chaos during school board meetings. In Virginia, a man was arrested, another man was ticketed for trespassing, and a third person was hurt during a school board meeting discussion distinguishing current curricula from critical race theory regarding equity issues.

 

Nowhere in this letter does it describe anything like an actual imminent threat. The closest it comes is on the fourth page. It says, in Ohio, an individual emailed a letter to a school board -- I’m sorry, an individual mailed the letter to a school board member, labeling the return address on the envelope from a local neighborhood association, and then enclosing threatening hate mail from another entity. This correspondent states that “We are coming after you and all the members of the Board of Education.” The hate mail continues by stating, “You are forcing them to wear a mask for no reason in this world other than control, and for that, you will pay dearly.” That’s it. That is the closest it comes to a mailed threat.

 

Now, there is actually one federal statuteTitle 18, Section 876that bars transmission of threats of harm to the recipient, but it has to be physical harm. It has to be an actual threat, and it has to be sent through the United States mails. This letter cited in the National School Board Association letter is the only example anybody has ever pointed to something that could conceivably be the subject of a federal prosecution, and that’s something that would be handled by the postal inspectors, not by the FBI.

 

The timing, as I indicated, of the two letters is interesting. The National School Boards Association letter is dated September 29. It’s to the president. The attorney general’s memo is dated October 4. That’s five days. And the notion that a memo could have been turned around in five days with all the consideration and examination that would be necessary by the various stakeholders within the -- even within the department, makes it highly unlikely that that was actually the sequence and that this was not something that was worked up in advance.

 

[Inaudible 13:34] that I think is -- appears in yet another letterthis one from an entity called America First Legal Foundationto the inspector general urging the inspector general to investigate the genesis of the attorney general’s memo and of the letter from the National School Boards Association. There are specific allegations in this letter that there was consultation among staff of the White House, staff of the Justice Department, that there would be a letter solicited from somebody who was not among the usual suspects as described in this letter and a statement attributed to somebody at the Justice Department, that the letter was to come from somebody who was not among the usual suspects and that then there would be a response. If those conversations took place, then it appears that the entire effort is aimed simply at suppressing dissent. That, as it happens, when it’s done by -- regardless of whether it’s done by federal officials or not -- that just makes the cheese more binding -- but there is federal jurisdiction over that kind of activity, as contained in the civil rights statutes.

 

So it’s a crime for two or more persons to conspire to "threaten or intimidate any person in any state, territory, commonwealth, possession, or district in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or the laws of the United States." I think free and open debate is among those rights. If this activity was intended to suppress the exercise of those rights, then there’s at least a colorable claim of the civil rights violation. Whether anything will eventuate from that or not, I have no idea, but certainly, the letter from the America First Legal Foundation to the inspector general at least triggers an investigation along those lines.

 

I should mention, before I start taking questions, one additional aspect of this that’s received some attention that I think is really of minimal importance -- and that is the question of conflict of interest. The attorney general’s son-in-law, a man named Alexander Tanner, –owns a company that is in the business among -- called Panorama Education -- that is in the business, among other things, of distributing material that has been objected to by a number of people at these school board meetings and distributing questionnaires designed to introduce such material into curricula. He has contracts with various school boards, including school boards in Virginia. And it has been a suggestion that somehow the attorney general, because he was writing the memo designed to discourage people from engaging in activity critical of a product that’s being purveyed by his son-in-law, it was, therefore, subject to -- therefore committed a violation of the conflict-of-interest rules.

 

I don’t know that putting money in his son-in-law’s pockets was any consideration at all. Appearances certainly are worth considering, but I think this is much more a matter of ideology than it is profit. In addition, it’s pretty clear that even if he had recused himself, the memo would have gone out signed by somebody else –within the justice departmentperhaps the deputy, perhaps one of the assistant AGs in charge of one of the divisions. But I don’t think that’s a serious issue, although it’s one that’s gotten a fair amount of attention.

 

 

This has all been a somewhat disorderly presentation, partly because I think what I’m trying to do is impose order on something that doesn’t have much. But I’d be happy to take questions and see whether perhaps we might help one another make more sense of this than is apparent from looking at it just on its face.

 

Evelyn Hildebrand:  Thanks so much for such an excellent presentation. That did not sound disorderly at all, at least to my ears. That was a great explanation of what’s going on at the moment. I do have a question of my own, and I would encourage our audience to please send in your questions. I know we have one question already that I will ask in just a moment. First, I wanted to ask if, in your experience, both as AG and as a judge, has there been another time where an external, I guess, third-party organization has written to the president? And maybe even aside from the quick timeline of, like, a five-day-before response -- but is there precedent for an external organization to write to the president and the DOJ to respond at all, apart from the quick timeline? There is that. Is that also an unusual circumstance?

 

Hon. Michael B. Mukasey:  Well, I think that’s somewhat unusual, although I wouldn’t say that it’s never happened. And I don’t think that the fact that an outside organization wrote to the president and that that elicited a response from the Justice Department––just taking those facts without getting into the subject matter of the letter and the subject matter of the response––that that is necessarily improper. People have the right to petition the government. Organizations have the right to petition the government. And if the president thinks that something is worth the attention of the Justice Department, then the attorney general serves at this pleasure, and he can refer it to the Justice Department. That part of it, simply those mechanics––leaving out the timing, and certainly leaving out the subject matter––that’s not the part that bothers me or that I think bothers anyone else. It’s the underlying subject matter.

 

Evelyn Hildebrand:  Right. That makes sense. Actually, I think, following on those comments, Pete Hutchinson (sp), an attendee, asks, “What would a normal sequence look like in terms of process and timing?”

 

Hon. Michael B. Mukasey:  Well, assuming that the president sent a letter like this to the Justice Department, I think the first place it would land would be in the Office of Legal Counsel, OLC. And that is an office that is staffed by —all the lawyers who work for the Justice Department are terrific. But that is an office that is staffed by the cream of the crop, and they are, really, among other things, the attorney general’s lawyers, as well as the government’s lawyers in the large. And they determine what the legal position should be of the government on various issues. And they would screen a submission like this to determine what, if any, response there should be to it. It would also work, I suppose, to the extent that it calls for conduct that would engage the Criminal Division, it would go to the people within the Criminal Division for their input.

 

That could all be placed in a set of -- in a memo or a set of memos to the attorney general to determine what his response should be. And that is a process that would take, in my experience, weeks. I don’t have direct experience like this, but certainly, consultation within and among those units within the Justice Department would be necessary before something worked its way up to the attorney general. I think it would also probably pass through the Office of the Deputy Attorney General for further screen. Each of those offices would have their input, and it would then wind up on the AG’s desk with the question of, “What, if anything, do we do about this?”

 

Evelyn Hildebrand:  A very different process than what we’re, at least, looking at for the moment. Another --

 

Hon. Michael B. Mukasey:  Yeah.

 

Evelyn Hildebrand:  -- question --.

 

Hon. Michael B. Mukasey:  We are assuming that that letter precipitated this memo. It may have been designed to make it appear that it precipitated the memo. The memo itself doesn’t directly mention the letter, although it deals with a suggestion of the kind of activity that is suggested in the letter. That’s the only basis, I think, for concluding that it was the letter that generated the memo.

 

Evelyn Hildebrand:  Is the quick timing that’s a little bit surprising or --.

 

Hon. Michael B. Mukasey:  The quick timing suggests that –

 

Evelyn Hildebrand:  Right.

 

Hon. Michael B. Mukasey:  -- maybe all of it was in the works before the letter was written.

 

Evelyn Hildebrand:  I see. I think that’s a good clarification. Another question relating to what you had mentioned about the civil rights statutes -- it would be the opportunity for recourse -- I think -- I’m curious, personally, about the standing question to would -- if a parent at a school board wanted to sue and say that the —you know, this feels like a nebulous thing to sue over. I’m wondering if you could, I guess, talk about the standing issue a little bit?

 

Another -- an attendee has asked, “What organization should file the civil rights violation claim against the federal government, ACLU or another organization?” So I’m wondering, would it be an organization that would have standing or a parent who feels unable to voice a concern if their school board is associated with, like, a federal enforcement effort?

 

Hon. Michael B. Mukasey:  When I mentioned the civil rights statutes, I wasn’t talking about any civil recovery.  There is -- in Title 18, there is Section 241, which bars two or more people from acting to suppress the exercise of federally guaranteed rights. That’s a criminal violation. It carries a ten-year penalty. Whether there are civil remedies was something, frankly, that I hadn’t researched, although I’ve certainly thought about it. Who would have standing is an excellent question and is a question, obviously, that’s going to have to be decided by the courts when and if somebody tries to sue. I think that issues of standing are resolved, perhaps, on a more lenient basis when we’re talking about protecting federally guaranteed rights. But still, as you say, there has to be standing, so I’m not certain who it is who would bring the civil suit, assuming a civil suit could be brought.

 

Evelyn Hildebrand:  Okay. Great.  And another participant asks if you could repeat the specific federal statute sections, and I’ll just type that answer into the chat for this participant.

 

Hon. Michael B. Mukasey:  The two statutes that I mentioned were Title 18, Section 241, which is the criminal -- again, it’s in Title 18, so it’s a criminal statute. And what it says is, “If two or more persons conspire”––it’s a conspiracy statute––“to injure, oppress, threaten, or intimidate any person in any state, territory, commonwealth possession, or district in the free exercise or enjoyment of any right or privilege secured to him by the constitutional laws of the United States, or because of his having so exercised the same or,” and then it goes into other acts that are prohibited, “they shall be fined under this Title or imprisoned not more than ten years or both.” Again, that’s a conspiracy statute. It requires more than one actor, and it requires an agreement. But interestingly, it does not require an overt act. It’s a conspiracy statute where the crime is complete once the agreement is reached.

 

Evelyn Hildebrand:  Right. That would be helpful. That would be helpful in the prosecution question. Let’s turn to another question from Gerard Nussbaum (sp). He asks, “Please discuss whether this is really a matter for state and local [inaudible 25:53] for any actual violence or serious threats.” So I think maybe --

 

Hon. Michael B. Mukasey:  Yes.

 

Evelyn Hildebrand:  -- back to states’ rights question, police power question.

 

Hon. Michael B. Mukasey:  The answer to that is, of course. States and localities have disorderly conduct statutes and regulations that they enforce regularly, and the police enforce them regularly, and there’s no suggestion that there’s some kind of national crime wave going on here. And even if there were, as I said, I don’t know what federal statute one would appeal to.

 

But in any event, this is a matter for state and local authorities who have dealt with it as they have dealt with it. Meetings have been canceled. Meetings have been changed. But that’s all protected activity, and if it’s to be the subject of a criminal prosecution, even a state criminal prosecution, it has to be something other than disrupting a meeting or shouting something out at a meeting. It’s got to be something that is legitimately a crimean assault or a batter. And that, again, is something that states have prosecuted and are, historically, empowered to protect against, not the federal government.

 

Evelyn Hildebrand:  Is there -- and this is just a question of my own. Has there been a state cause of action that the federal government is overstepping in trying to take over the police power function with a -- I mean, I understand that there’s an interstate commerce potential question for federal jurisdiction, but does the state have to stand by and watch the federal government step in to local law enforcement territory, for lack of a better word? Is there a recourse?

 

Hon. Michael B. Mukasey:  I don’t think it’s the state that would have standing to sue, and I don’t know what statute they would -- under what statute or provision they would sue.

 

Evelyn Hildebrand:  Right.

 

Hon. Michael B. Mukasey:  It’s the person who is imposed upon by the federal government, it seems to me, who would have standing to attack that imposition and to challenge the jurisdiction of the federal government, to bring a prosecution if a prosecution were brought.

 

Evelyn Hildebrand:  Interesting. Let’s say -- you had mentioned that the letter sent to the president used the term "domestic terrorist." Our participant, Austin Wicey (sp), asks for the legal definition of a domestic terrorist and “What burden would the government need to meet in order to legitimately label a person or group of persons domestic terrorists?”

 

Hon. Michael B. Mukasey:  There is no definition of domestic terrorist. It’s a figure of speech.

 

Evelyn Hildebrand:  Quick answer. Great.

 

Hon. Michael B. Mukasey:  And it’s an attempt to tar people with the terrorist label.

 

Evelyn Hildebrand:  Let’s see. I think the same participant asks, “Does the DOJ currently collect any statistics on school board-related crimes, threats, etc.?

 

Hon. Michael B. Mukasey:  Well, not that I’m aware of, although this memo directs that there be meetings to collect that information. So, I guess, they’re going to, I mean, if the meetings, in fact, wind up being held. The memo says -- it directs that there be “meetings that will facilitate the discussion of strategies for addressing threats against school administrators, board members, teachers, and staff, and will open dedicated lines of communication for threat reporting, assessment, and response.” So it sounds like somebody, at least, is in the information-gathering business, among other things.

 

Evelyn Hildebrand:  Right. Up until now, has there been an effort, do you know of, to execute the memo’s instructions? I know this is very recent and it’s a developing issue, so maybe it’s too early to say.

 

Hon. Michael B. Mukasey:  I would have no particular way of knowing, I mean, --

 

Evelyn Hildebrand:  Right.

 

Hon. Michael B. Mukasey:  -- other than reading the newspaper.

 

Evelyn Hildebrand:  Right.

 

Hon. Michael B. Mukasey:  And I [inaudible 29:28] know anything about it.

 

Evelyn Hildebrand:  I see. We do have a lot of questions coming in, so I’m going to scroll through and see. Okay, a question from participant Andrew Block (sp). He asks, “Assuming this was all pre-baked, what is the takeaway? Is there an ethical issue? I know you’d mentioned a conflict-of-interest possibility. It, obviously, brings in political correction to the law enforcement process, but are there any other concrete issues that could arise?”

 

Hon. Michael B. Mukasey:  Well, other than the attempt to suppress political dissent, I mean, that’s -- if that’s what this is about and there’s no -- and it appears there’s no other basis, certainly no good faith claim of a prosecutable federal crime, then one wonders whether the point here is to have the process have an effect without actually bringing any prosecutions because no prosecutions can be brought. That is an outrageous overreach.

 

Evelyn Hildebrand:  Turning back to the domestic terrorist question -- and you can defer on this answer or not because you did speak to this already, that it doesn’t have an exact legal definition, especially in this context -- would you like to comment on the expansion of the use of the designation of domestic terrorist to apply to broader groups of people and the way in which this may allow the federal government greater leeway in investigation and charging of individuals or groups?

 

Hon. Michael B. Mukasey:  The federal government has jurisdiction to investigate crimes that -- where the commission of the acts, in fact, cross the state lines, to investigate the planting of bombs, to investigate -- and plans to do so -- to investigate plans to commit violence, but it doesn’t have -- they have to be contained within particular statutes, and it’s not a general police power. Again, the federal government investigates all manner of violent crimes, but only those that cross state lines and otherwise affect -- have a legitimate basis in statute. Disorderly conduct and trespassing at school board meetings are not among those crimes.

 

Evelyn Hildebrand:  I wonder––and this is my own question, then––is there -- I guess I don’t know this area very well -- is there a Patriot Act question? Like, if a group is labeled domestic terrorists, then would their fourth amendment rights be less protected or subject to a different balancing test of privacy interest? Is that a possibility?

 

Hon. Michael B. Mukasey:  The Patriot Act does not itself define any crimes. What it does is make available to authorities investigating actual terrorist acts, certain techniques that are available to -- for example, in narcotics investigations, like, roving warrants. In other words, if you get a warrant to tap a particular phone and the user of the phone throws it away and gets another phone, absent of specific authorization, you would have to go back and get another warrant. The Patriot Act allows a warrant to switch from one phone to another, depending on whether it’s the user who is the subject of the surveillance. It makes available those kinds of investigative techniquesobtaining of recordsbut it’s not a statute that defines any crime. It’s not an independent basis for exercising jurisdiction.

 

Evelyn Hildebrand:  Okay. I think that -- at least, based on reading the news and thinking about these issues as they’re occurring, that’s certainly a concern for parents. If the term domestic terrorist is being used, then that kind of possibility is certainly of concern that a different type of law enforcement mechanism could be used just because they’re being labeled with the term. I don’t know if that came across as clearly as I intended, but interesting, very interesting.

 

Let’s see. I think the next -- there are many people who are asking about the -- like, what kind of recourse is available? And I know that you had discussed there’s the criminal conspiracy statute. There’s a possibility of a civil suit, depending on the standing question and depending on what organization would have standing or would be best poised to bring that type of suit. So, let’s see. Devon Westill (sp) asks, “How can the public hold the administration accountable for such egregious behavior,” which, I think, is probably a question that is on the minds of many.

 

Another attendee asks -- let’s see. Teresa Kula (sp) asks, “Could a parent who objects to a possible school board action that is to be considered at an open meeting who is fearful of speaking because of possible punishment under the state’s action that appears calculated to show free speech?” So I wonder if you could provide, maybe, a general comment on the free speech implications that -- at least the apparent free speech implications?

 

Hon. Michael B. Mukasey:  Well, the apparent free speech implications of the memo are fairly dire. However, the one cause for hope here is that there has been substantial pushback, and there continues to be substantial pushback. As far as how you hold people accountable, we’re still a democracy. We hold people accountable in elections.

 

Evelyn Hildebrand:  Right.

 

Hon. Michael B. Mukasey:  That’s how you hold them accountable --

 

Evelyn Hildebrand:  Right.

 

Hon. Michael B. Mukasey:  -- and in raising your voice and urging others to do the same, and in not being intimidated.

 

Evelyn Hildebrand:  Yep. Very true. And that would be true for school board elections as well as federal and state elections.

 

Hon. Michael B. Mukasey:  Correct.

 

Evelyn Hildebrand:  I’ve seen a lot of people who are being voted out of school board positions based on their behavior, which is exactly -- this is my personal opinion, obviously, but I think that’s exactly what should be happening. Let’s see. I apologize. I’m reading through the many comments. Everyone’s very interested in this topic, so you’ve given people a lot to think about.

 

Let’s see. Oh, this is an interesting question from Jenny Gannon (sp), who asks, “Once the feds collect data to investigate, how do they overstep jurisdiction, and then those involved in data collection might have standing for a civil case?” So, just the data collection -- because I know you had mentioned earlier that the letter suggests that there would be a data collection effort, and there was another question earlier about whether the DOJ keeps track of stats about public schools. Would that data collection, all by itself, be overstepping jurisdiction?

 

Hon. Michael B. Mukasey:  Well, if they’re collecting data and it’s not in aid of any legitimate function of the Justice Department or an aid of bringing any cases the Justice Department could bring, then there’s a very good basis to object to the accumulation of the data and the maintenance of the data.

 

Evelyn Hildebrand:  Great. Another question about jurisdiction, and I was also curious about this too, the federal jurisdiction prong, for lack of a better word, connected with communicating online by nature of email or phone call or texting, is that type of communication automatically the kind of hook necessary to get federal jurisdiction? So, if parents are discussing school board -- dissatisfaction over their school board’s recent decision online or over the phone, how does that impact the jurisdiction question? Because it would still be a local law enforcement issue if it’s a harassment question or if it’s an assault question, but then --.

 

Hon. Michael B. Mukasey:  It’s conceivable if somebody uses a means in interstate commerce to transmit an actual threat of physical harm, that could conceivably engage federal jurisdiction. But again, we’re not talking about that kind of activity here, and there’s been no suggestion, no citation to a specific instance of such activity.

 

Evelyn Hildebrand:  Right.

 

Hon. Michael B. Mukasey:  And certainly, discussing school board meetings and discussing what goes on at school board meetings doesn’t confer jurisdiction on anybody to investigate those conversations.

 

Evelyn Hildebrand:  Right. I think that’s a great point to focus on, particularly because -- I don’t know if you want to comment a little bit on the story out of Loudoun County that was -- I mean, to my knowledge, it broke pretty recently regarding the dad who was, for a lot of people, the face of the “domestic terrorism issue” and more facts came to light, and clearly, that was not the case. So it’s not even -- it’s not that actual threats are being -- what would the term be -- being transmitted online or being transmitted over the internet. It would just be communication that is not a crime that the federal government could investigate. Is that the way to think about it?

 

Hon. Michael B. Mukasey:  Yeah, that’s the way to think about it. I mean, the person you refer to was a man who has claimed that his daughter was raped in a bathroom by a man wearing a skirt. And the Loudoun County School Board, I believe, has either denied that it knew about the incident or denied that the incident occurred. In any event, he was trying to make it known to the school board that that had occurred.

 

There was, apparently, another young woman who was attacked similarly in another school by the same person who was transferred to another school after the first incident occurred. That kind of thing -- to say that it’s not terrorism, is an understatement -- that the father’s attempt to communicate his displeasure at the school board. He has every right to do that, and to make him, as you said, the face of domestic terrorism is outrageous. It undercuts the entire claim that we’re dealing with here -- is anything that could properly be described as terrorism.

 

Evelyn Hildebrand:  Right. Which makes it seem much more like a direct -- directed towards chilling free speech as opposed to actually addressing any type of real threat or any type of real danger. Here’s a question from another attendee who asks about 1983 civil rights claim, which, perhaps, a parent could have standing to bring. What are your thoughts on that? Initial reaction?

 

Hon. Michael B. Mukasey:  It’s been a while since I read Section 1983. The person -- part of the problem is you’d have to show damage and real impact. And being fearful, I don’t think, gets you far enough. If somebody can, I suppose -- could show that others were discouraged from participating in an activity that they all wanted to participate in, that might conceivably confer standing. But again, it’s been a while since I read 1983 and the case summary.

 

Evelyn Hildebrand:  I’m wondering, specifically in the context of the parent -- because I did a little bit of reading before this discussion, and I think that he was threatened by another parent that his business––because he was wearing a shirt representing his business––that his business was going to suffer because of the entire interaction. And I wonder if he could show negative impact to his business, that that type of damage would be -- I don’t know if there’s a causal connection that would need to be -- I don’t know. I don’t know if that’s the type of [crosstalk 41:53] that would be required.

 

Hon. Michael B. Mukasey:  I think what’s happening is simply a private boycott. I don’t think that’s covered by 1983.

 

Evelyn Hildebrand:  Okay. I apologize. I had a phone ringing there for a moment. Let’s see; another question. I’m not familiar with this statute, 18 U.S.C. § 241. I don’t believe that’s the statute that you’d referenced earlier that --.

 

Hon. Michael B. Mukasey:  It is.

 

Evelyn Hildebrand:  It is? Oh, I apologize. Okay. This questioner asks if they could use that statute section -- could the FBI or US Attorney’s Office take out action? So, I guess, that leads me to wonder -- I mean, using that statute -- there’s not a private right of action to enforce a criminal statute there. 

 

Hon. Michael B. Mukasey:  Right.

 

Evelyn Hildebrand:  You would have to convince a US attorney or the FBI to take criminal action against…

 

Hon. Michael B. Mukasey:  -- against the attorney general and others who participated with him. That’s quite a list. 

 

Evelyn Hildebrand:  That is quite a list. Lets’ see, another --.

 

Hon. Michael B. Mukasey:  You know, there’s another consideration here, which is that, I suppose -- and this is -- I’m just theorizing, I’m not advocating -- that if control of the House of Representatives changed in 2022 such that the House Judiciary Committee would consider the attempt to suppress dissent as -- and the potential violation of 241 as a high crime and misdemeanor, whether they would consider articles of impeachment against the attorney general. Now I’m not encouraging that. I’m simply pointing out that it’s a possibility.

 

Evelyn Hildebrand:  Right. No, that’s very interesting. It does seem to be an area that calls for some out-of-the-box thinking. I think this goes back to something that we were discussing a little bit earlierthe question about jurisdictional overreach -- so, like, federal jurisdictional overreach. “Would a state AG or a state DA be able to raise a federalism violation against the DOJ for bringing suit against harassing state citizens exercising federal and state rights to core political speech?” This comes from David Vandenburg (sp).

 

Hon. Michael B. Mukasey:  I think the answer to that is, no.

 

Evelyn Hildebrand:  No. Okay. Why would that be?

 

Hon. Michael B. Mukasey:  Simply because the state DA would be -- or local DA would be enforcing a right that actually belongs to the person against whom the federal prosecution is brought. And it’s that person, not the state AG, who has standing.

 

Evelyn Hildebrand:  It’s not a third-party standing issue or anything like that. That’s my thoughts, as well.

 

Hon. Michael B. Mukasey:  But maybe I’m not being imaginative enough.

 

Evelyn Hildebrand:  Let’s see. I think that that -- I know we do have a lot of questions, but I think that at least some of them have been touched upon already. So with that, I think I’ll hand the floor over to you, Judge Mukasey, for closing comments or anything like that. I recognize that we’ve, perhaps, tread on the same grounds a couple of times over, but very appreciative for you taking the time to discuss this because, clearly, there’s been quite a bit of interest from our audience. So please do take some time to wrap it up and --.

 

Hon. Michael B. Mukasey:  I would like to think that this memo is uncharacteristic of the person who wrote it. It’s certainly uncharacteristic of the Justice Department. If what it portends is that the federal government and the current administration are intent on using threats of federal criminal prosecution or using threats of investigation to suppress and discourage political expression, then we’ve gone a long way in the wrong direction. And I think that calling attention to this and pushing back against it is really the major recourse. It’s the only recourse. And I would encourage those who have strong feelings about the subject to make sure that they’re heard.

 

Evelyn Hildebrand:  Great. Well, this was absolutely excellent. Thank you so much for the time. I’d like to thank you on behalf of The Federalist Society. I’d like to thank our audience for participating and sending in questions. All of the views that were expressed this afternoon are the views of the speakers and not of The Federalist Society. If you do have any questions or comments, please feel free to send those in to our email address, info@fed-soc.org, and we welcome your comments. Please keep an eye on your emails for upcoming announcements about future webinars. And with that, we are adjourned. Thank you very much.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.