Exclusive: Attorney general to detail new guidelines for domestic terrorism investigations and cases

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U.S. Attorney General Merrick Garland is expected in his testimony before Congress on Wednesday morning to highlight new Department of Justice guidelines for investigations and cases related to domestic terrorism.

The new guidelines, as outlined in a Justice Department memo obtained by Yahoo News, represent significant changes to how cases and investigations into domestic violent extremism are handled by federal prosecutors around the country, and put in place procedures for tracking those cases.

The guidelines were sent to federal prosecutors nationwide in a March 8 memorandum from acting Deputy Attorney General John Carlin. The three-page memo is titled “Guidance Regarding Investigations and Cases Related to Domestic Violent Extremism.”

Merrick Garland
Attorney General Merrick Garland. (Mandel Ngan/Pool/Getty Images) (Mandel Ngan-Pool/Getty Images)

Among other changes outlined in the memo, “prosecutors must submit for review and approval” to the Justice Department Counterterrorism Section in the National Security Division any charges and associated court filings that link a case to domestic violent extremism. The Counterterrorism Section “in its review shall seek to ensure accuracy and consistency in such descriptions in filings nationwide,” the memo says.

The memo also sets out policies for standardizing data collection on domestic terrorism cases. Criminal investigations or cases that involve or are related to domestic violent extremism will be designated as “DVE-related.” The National Security Division will then be notified “as soon as practicable” about those cases.

The memo acknowledges the complexity of tracking and coordinating domestic terrorism cases. There is no federal domestic terrorism statute, and the memo seeks to cast a broad net in how it applies the term “DVE.”

“What constitutes ‘domestic violent extremism’ and how the Department defines ‘domestic terrorism’ raise important legal and policy considerations. Our response must be consistent, considered, well-coordinated, and informed by the relevant facts and circumstances,” the memo states.

The memo says that “the term ‘domestic violent extremism’ should be interpreted broadly and include all violent criminal acts in furtherance of ideological goals stemming from domestic influences, such as racial bias and anti-government sentiment.”

Marc Raimondi, a Justice Department spokesperson, confirmed the changes, which he said are “intended to improve the Department’s ability to collect data across the Department on pending federal cases and investigations involving domestic terrorism and domestic violent extremism.”

The memo was drafted following internal Justice Department discussion in response to increasing cases of violent attacks linked to domestic extremists, including the Jan. 6 riot at the Capitol. Garland’s testimony Wednesday will focus in part on these changes as outlined in the memo, and will include a request for funding to support the changes.

Pro-Trump protesters gather in front of the U.S. Capitol Building on January 6, 2021 in Washington, DC. (Jon Cherry/Getty Images)
Pro-Trump protesters in front of the U.S. Capitol on Jan. 6. (Jon Cherry/Getty Images) (Jon Cherry/Getty Images)

“The Administration has submitted a discretionary request for an increase in funding to help counter domestic terrorism and domestic violent extremism,” Raimondi told Yahoo News. “This includes a $40M increase for the U.S. Attorneys Offices, including to help them manage increasing caseloads. At this point, I don’t have more detail I can share on the discretionary request.”

The new guidelines come after repeated requests from Congress for data and statistics on the scope of the domestic terrorism threat in the prioritization of domestic terrorism across the administration. There was previously no mechanism in place to comprehensively track such domestic terrorism charges nationwide.

The National Security Division tracks international terrorism charges, and federal prosecutors are required to get approval from headquarters to pursue international terrorism charges, but tracking domestic terrorism charges is more complex, in part because there is no federal domestic terrorism statute. Often the cases are brought by state prosecutors, and include charges that might not necessarily on their face appear to be associated with acts of domestic terrorism.

Those charged in connection with the Jan. 6 attack on the Capitol, for example, have been hit with various federal and state charges ranging from trespassing to disorderly conduct.

Having all U.S. attorneys' offices in the country report domestic-terrorism-related investigations, cases and potential charges back to the National Security Division would create a repository that would provide a more consistent reporting metric for domestic terrorism.

This plan is part of the attorney general’s efforts to prioritize domestic terrorism across the Justice Department.

The department has faced criticism in the past both for not collecting data adequately on domestic terrorism and for not prioritizing those groups that represent the largest number of attacks, which in recent years have been white supremacists and other right-wing groups.

"Data about DVE has been historically incomplete and insufficient for developing effective approaches to countering the threat," Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, told Yahoo News. "The FBI, through Director [Christopher] Wray, has been clear that white racially motivated extremist violence poses the greatest terrorism threat in the United States today. The DOJ policy guidance will enhance the additional resources being put toward investigating and combating white supremacist and other extremist violence by ensuring a consistent approach to investigating and charging decisions, ensuring appropriate sharing of information and intelligence, and ensuring that data is tracked and used effectively."

Members of the Proud Boys kick a member of Antifa on the ground during a protest on December 12, 2020 in Washington, DC. (Stephanie Keith/Getty Images)
Members of the Proud Boys kick a member of antifa during a protest in Washington, D.C., December 2020. (Stephanie Keith/Getty Images) (Stephanie Keith/Getty Images)

Mike German, a former FBI agent and now a fellow with the Brennan Center for Justice, who has frequently criticized the Justice Department for not focusing enough on white supremacists, said better data collection would be a welcome change. “Tracking the number of investigations, indictments and convictions in each program category, and releasing this data publicly, is necessary to allow policymakers and the public to hold the FBI and Justice Department accountable,” he told Yahoo News.

The Justice Department’s change comes ahead of a larger strategy review of domestic terrorism ordered by President Biden. The White House recently announced it expects to release that review in the coming weeks.


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