Is Biden’s DOJ Different from Trumps? Liberal Prosecutors Label 2 BLM Protesters "Terrorists" and Turn a Destruction of Property Case where No One was Injured Into a Fed Felony Case w/45 Yr Sentence

From [HERE] This time last year, during the final presidential debate, Joe Biden promised to “fundamentally change” the administration of criminal justice if elected. That change is much needed — on issues ranging from police misconduct to excessive sentences to racial disparities in arrests, charges and punishment.

A case pending in Brooklyn, however, flies in the face of the president’s stated commitment both to racial justice and righting the wrongs of excessive punishment. Federal prosecutors in the Eastern District of New York are continuing to pursue the Trump-era approach of labeling Black Lives Matter protesters as terrorists.

Colinford Mattis and Urooj Rahman are two lawyers who were arrested in Brooklyn in May 2020 while protesting for racial justice. (I taught Mattis at NYU Law, but I am not on his defense team.) Mattis and Rahman allegedly threw a Molotov cocktail at an empty NYPD car during a night of mass protest after George Floyd’s murder.

Mattis and Rahman can hardly be called peaceful protesters; trying to destroy a police car, even if empty, crosses the line. So I am not questioning the decision to bring criminal charges. But the decision to bring federal rather than state charges is a different matter. No one was in the car, and no one was harmed. A case involving this kind of property damage would typically be pursued by a local district attorney, and first-time offenders like Mattis and Rahman would likely receive little if no jail time for their offense.

Instead, federal prosecutors under the Trump administration charged Mattis and Rahman with seven felony counts that collectively carried a 45-year mandatory minimum sentence. Theirs was one of at least 326 federal prosecutions initiated by the Trump DOJ over alleged conduct during the Black Lives Matter protests — but it was one of the earliest and most aggressive of those prosecutions.

This week, Mattis and Rahman will be taking a plea deal to resolve their case. The plea avoids the extreme and indefensible mandatory minimum sentence that attached to the original charges. But prosecutors, even under this new administration, have made clear that they will seek a terrorism enhancement at Mattis and Rahman’s sentencing — an extraordinarily rare and harsh tool that applies only when the offense was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” and that the government has historically sought in cases that did, or could have easily, resulted in mass death and destruction.

Labeling Mattis and Rahman as terrorists is a tactic that one would expect from the Trump administration as part of its political strategy to diminish the calls for racial justice in the wake of police violence. It is shocking to see prosecutors dedicated to equal treatment under the law seeking that label in this case. In the past, the DOJ sparingly used the terrorism enhancement because of the extreme punishment it carries. The enhancement can increase up to 10-fold the prison sentence of a defendant, adding decades of incarceration.

In this case, the enhancement could mean a 10-year sentence for Mattis and Rahman despite the fact that neither have any criminal record, no one was hurt, and neither had any intent to hurt anyone through their actions. Theirs is a case of property damage to an abandoned police vehicle that should have never been a federal case in the first place.

Congress first established the terrorism enhancement in 1995 to punish international terrorists, later expanding it to cover domestic terrorism after the Oklahoma City bombings, and then again after 9/11. That history speaks for itself about the kinds of cases to which Congress meant the enhancement to apply.

Prosecutors in the Southern District of New York seem to understand this. They are not seeking such an enhancement in a similar case involving the burning of a police vehicle. The only difference with this case is that Mattis and Rahman committed their alleged act of destruction during racial justice protests. How can that be the line that turns their act into terrorism? For that matter, how can prosecutors justify calling this terrorism when participants in the Capitol riot cases, where some defendants physically assaulted police officers, have reached deals with prosecutors that treat their cases as misdemeanors?

Breon Peace, President Biden’s recently confirmed pick as United States attorney for the Eastern District of New York, should step in and not have prosecutors under his watch seek an enhancement and a sentence that does not apply to the reality of this case. Doing so would send a message that the Biden administration is serious about turning the page on Trump’s politicization of racial justice protesters, and it would restore the terrorism enhancement’s rightful place as an extreme punishment that is reserved for conduct and criminal intent that deserves it.