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Legal experts skeptical of DOJ’s criminal case against Southern Poverty Law Center

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Ralph Chapoco
(Alabama Reflector)

Attorneys and law professors Wednesday expressed skepticism about the U.S. Department of Justice’s criminal case against the Southern Poverty Law Center, with few expecting the charges to lead to sanctions against the civil rights nonprofit.

The indictment alleges that SPLC’s use of paid informants within white supremacist groups — a tactic SPLC used to disrupt operations and gather information passed on to law enforcement — amounted to functional support of those groups and fraud on SPLC donors.

Several experts said the case amounts to political grandstanding by the Trump administration against an organization that has frequently criticized the president.

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“The conduct at the core of the indictment, paying confidential sources inside violent extremist groups to gather intelligence, is something federal law enforcement does as a matter of course,” said Cassandra Burke Robertson, director of the Center for Professional Ethics at Case Western Reserve University law school. “Charging a civil rights organization criminally for doing the same thing, in this political context, strikes me as an abuse of the criminal law.”

She also said that the action could “backfire” on the administration because “I actually think that SPLC donors are likely to be very supportive of its work, including its past use of confidential informants, and that publicity of the matter may actually increase public support for the SPLC.”

SPLC has hired Bradley Arant Boult Cummings LLP, based out of Atlanta, to represent the organization in the case.

Several Democrats, including Senator Dick Durbin, D-Illinois, issued statements in support of SPLC.

“The Trump administration has brought this paper-thin indictment for one reason: the Southern Poverty Law Center has a long history of exposing violent white supremacist extremists who are allies of this White House,” Durbin said in a statement. “I am confident that this vindictive prosecution will fail, just like the Administration’s other efforts to target the President’s political enemies.”

Acting Attorney General Todd Blanche announced Tuesday evening that a federal grand jury approved an 11-count indictment proposed by the U.S. DOJ. The indictment accused the SPLC of wire fraud and money laundering, charges usually reserved for organized crime groups or others who try to defraud people into giving them money.

Blanche accused SPLC of “manufacturing the extremism it purports to oppose by paying sources to stoke racial hatred.”

But legal experts said the indictment had little substance, however.

“It is very thin, (and) does not adequately allege in my judgment any violation of the mail or wire fraud statutes (which are the indictment’s key allegations),” said John C. Coffee Jr., a professor at the Columbia University Law School, in a statement. “SPLC was under no duty to disclose to the world that it was paying secret agents to advise it about the activities of violent organizations. That it paid agents to inform it does not imply that it was supporting these organizations, even if the agents (with mixed motives) gave some of the payments to the organization.”

Robertson said that organizations, including the government, regularly use confidential informants because it is an important tool to collect information about groups that actively withhold information about their activities.

In the indictment, the DOJ alleged several instances of wire fraud. But Robertson said “it doesn’t seem to me there was any criminal intent at all.”

“When you are paying an informant who is deeply embedded in a group that is engaged in violent activity, whether it is terrorism or others, you don’t want to risk their lives by making it clear they were receiving payments,” she said.

Robertson said the indictment doesn’t even go as far as to allege any criminal intent to defraud financial institutions. The allegations were that SPLC tried to hide its activity from its donors.

“That seems really problematic to me,” Robertson said. “I don’t believe the donors were, in any way, misled.”

In the end, Robertson said the government will likely have a difficult time proving its case.

“I would be surprised if this case made it very far in the process,” she said. “I would be absolutely shocked if it went all the way to a conviction. I think it will get dismissed earlier in the process.”