On June 26, 2020, President Trump took time out of his busy golf schedule to address a rampant problem that has been at the center of protests and debates across the nation over the past month. Unsurprisingly, the pervasive problem the Commander in Chief has chosen to tackle is not abhorrent abuse of citizens at the hands of law enforcement, but rather the tearing down of statues. President Trump signed an executive order calling for the arrest and rigorous prosecution of those caught breaking federal laws after a rash of statue destruction as part of the ongoing protests.
The beginning of President Trump’s Executive Order, titled “Executive Order on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence,” reads like a propaganda letter to the American people. The White House hits as many buzzwords as it can, calling the protesters everything from rioters to left-wing extremists to Marxists bent on destroying the United States Government. The Executive Order cherry picks unacceptable acts perpetrated by looters who have taken advantage of the protests and Black Lives Matter movement and conveniently ignores the hundreds and hundreds of documented examples of law enforcement agencies blatantly violating the law and first amendment. (nearly approaching 750 in this twitter thread). For those of you keeping score, that’s 750 documented incidents in just 45 days. Just imagine what isn’t being caught on camera.
The most telling part of this Executive Order is that it does not actually create any new laws. Instead, the Order essentially tells the people of this country what Trump truly cares about: statues of dead traitors and racists, rather than the thousands that have experienced injustice at the hands of law enforcement. This order lays out a couple of federal statutes that the Department of Justice will be using to prosecute individuals that are caught defacing government property and ties it all together nicely at the end by threatening to withhold federal funding from jurisdictions that aren’t too keen on throwing people in jail for tearing down these offensive statues. With that in mind, let’s dive into the laws and see just how exactly Bill Barr and the Department of Justice will be dolling out “justice.”
The main statute that will be used to prosecute those arrested is 18 U.S.C. § 1361. This statute protects any property of the United States from “willful depredation or attempted depredation”. This statute is a “specific intent” crime, which means that in order to convict someone, the government has to prove that the defendant intentionally defaced or destroyed the statue, knowing that this destruction is a crime. As President Trump has gleefully tweeted, being convicted of this crime could land a person in prison for up to ten years in addition to a fine of up to $250,000. Clearly this crime is not a joke, and this Executive Order shows that the Department of Justice intends to push for max punishments. That is, if they can prove intent to a jury of your peers. “Specific intent” is a tricky legal element in a criminal case and a person arrested for violating this federal statute needs an experienced criminal lawyer fighting back against the federal prosecutors.
The next federal statute that the White House cites is 18 U.S.C. § 1369, also known as the Veterans’ Memorial Preservation and Recognition Act of 2003. This statute applies the same punishment as 18 U.S.C. § 1361 to people convicted of destroying monuments that honor military veterans. This statute clearly applies to the desecration of statutes and monuments of honorable military veterans like General and President, Ulysses Grant and memorials like the World War II Memorial. It will be interesting to see, however, if federal prosecutors will charge people that destroy statues of Confederate “heroes” like Robert Lee and Stonewall Jackson—those who inarguably committed treason against the United States.
Two personal favorite federal statutes cited in the President’s Executive Order are 18 U.S.C. § 247 and the Church Arson Prevention Act of 1996. Together these two laws make it federally illegal to damage or deface religious property and to obstruct any person’s free exercise of religious beliefs. This section is very clearly targeted at the people who broke into St. John’s Episcopal Church, Lafayette Square, and set a fire in its basement; and those people should be punished. However, I’m going to go out on a limb here and guess that the Department of Justice will ignore these laws when it comes to the United States Park Police Officers who teargassed St. John’s priests sitting on the Church’s property so President Trump could have a photo op with an upside down bible.
The Executive Order on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence cites a few more federal statutes that cover conspiracy to destroy government property and crossing state lines to commit felonies. There is no question that destroying government property is a crime even if the underlying motives are laudable. Instead of taking it upon yourself to be a one man wrecking crew, the best option is to protest your local governments to remove these statues—efforts that have been successful around the country this past month and over the past few years, including those that convinced the Mississippi Government to remove the Confederate Battle Flag from its state flag.
If you have chosen to express yourself in a way that gets you arrested by the federal government, you need to have an experienced criminal defense lawyer defending you. President Trump is not bluffing when he says the Department of Justice will be pushing for ten year prison sentences. If you were arrested in the District of Columbia, the attorneys here at Scrofano Law PC will vigorously defend you against these federal charges. Scrofano Law PC stands for justice for all Americans, not just the ones that President Trump considers “very fine people.”