Thought Experiment: It's 2030, and the Newsom Justice Department Indicts a Conservative Group for Paying Antifa Leaders
I blogged Wednesday about the indictment of the Southern Poverty Law Center for, among other things, supposedly defrauding donors. The theory is that the SPLC raised money by telling donors that it was aiming to "dismantle" violent extremist groups—but spent over $3M paying hate group leaders for information and, in at least one instance, to actually put out hate messages at the SPLC's direction. The indictment also alleges that, to hide the source of the funds, the SPLC caused false statements to be made to banks: It had its employees open accounts that it claimed were owned by them personally, on behalf of certain shell entities, but were really owned by the SPLC. I thought it might be helpful to think about this using a hypothetical, and seeing what we think about both the SPLC case and the hypothetical together.
Let's say that the SPLC prosecution didn't happen in 2026, and we're now in 2030. Gavin Newsom is President, and the Justice Department announces an indictment. The target is a prominent conservative activist group. The indictment alleges the group raised money by telling conservative donors that it would fight antifa and other sometimes violent left-wing extremist groups. It turns out that it developed an extensive network of paid informants within the leadership of those groups, and indeed paid money to at least one to actually spread leftist extremist messages.
The Justice Department says all this was fraud on the donors, and also that in the process the group had employees open bank accounts using group funds but claiming the funds were personal, and thus lied to the banks and violated anti-money-laundering rules. What would we, as people sympathetic in some measure to the group's overall mission, think?
[1.] I expect some of us might think the group was being kind of slimy. It's been talking about all this left-wing extremism it's fighting, but how much of it was actually ginned up by the group instead?
[2.] At the same time, some of us might think the group is being pretty cunning. Here it's getting lots of information about its enemies. To the extent it's prodding some of its paid informants to actually say extremist things, maybe it's effectively discrediting its enemies. And if we think there really would be plenty of genuine violent left-wing extremism even without the group's funding, we might think that its spending was actually pretty useful to its stated cause. Slimy and effective, after all, aren't always inconsistent for political advocacy groups. Sure, the sliminess might on balance cancel out the effectiveness, but maybe not always.
[3.] We might also wonder whether the Newsom Administration is targeting the group because of its ideology, rather than out of a fair application of neutral prosecutorial judgment. That's always a plausible concern with prosecution of political groups by political actors, but especially in so in a highly politicized time.
We might want to know, for instance: Is it really routine to prosecute groups for having their employees set up bank accounts in the employees' names rather than the group's, not to avoid taxes or to fund organized crime but just to conceal the source of money from check recipients? If such prosecutions are common, then of course a political group shouldn't get a break from them just because it's a political group. But if they're uncommon, then it's more likely that the group is being targeted precisely because of its politics.
[4.] And as to the fraud theory, we might wonder: Was the spending really fraudulent? After all, the alleged representations to donors were pretty general—help us dismantle these violent groups that are your and our political enemies. And at that level of generality, there's at least a credible argument that the group was intending to use the money for that general purpose, and perhaps indeed succeeding in serving that purpose. Perhaps some donors would be shocked at the means the group was using. But it sounds like the representations (this will be used to dismantle the bad guys) were about the ends. And such a representation about ends, we might think, doesn't make any commitment about means.
At the very least, we might think that the fraud claim is a stretch, and that prosecutors shouldn't be stretching fraud statutes in a case targeting a political group that their Administration opposes. Again, if these sorts of fraud prosecutions were routine, then it may make sense for prosecutors to just follow the routine as to the conservative group, just like the law has been applied to liberal groups, or to entirely apolitical groups. But if there haven't been such fraud prosecutions before, then it may look to us like the Newsom Administration is going after the group because of its ideology.
Of course, maybe some of us might think that the hypothetical conservative group's "dismantling" claims really were outright fraudulent, even if we generally agree with the group's politics, and might want prosecutors to throw the book at them. But I doubt that this will be a common reaction, especially given the vagueness of the representations that the group is accused to have made.
[5.] As you might gather, I'm suggesting that conservatives should take the same view as to the Trump Administration's prosecution of the SPLC as they would as to the Newsom Administration's hypothetical prosecution of the conservative group. Likewise, I'm suggesting that liberals should take the same view as to both as well. To be sure, that's something of an obvious point; but sometimes the obvious might be worth mentioning.
And that's why I'm tentatively skeptical of the prosecution. Again, if it turns out that prosecutions for the bank transactions laid out in some of the counts are commonplace, that would change my view as to those counts. Likewise as to the fraud counts, if it turns out that fraud law does routinely treat such behavior as a fraud on the donors, despite the factors mentioned above.
But from what I hear, there really isn't much precedent for such fraud prosecutions. In any event, though, I think it's always helpful to think about what would happen if the shoe were on the other foot. Some day soon, it likely will be.