Politics Disguised as Prosecution: DOJ Claims Biden's Administration Was Wrong To Prosecute Violence At Clinics

And prosecutors get caught in the crossfire

DOJ released an 882-page report Tuesday about the Freedom of Access to Clinic Entrances (FACE) Act. The Act does just what it sounds like it would do: Makes it possible for individuals who provide medical care or want to receive it to enter clinics that provide reproductive health care without being subjected to violence, threats, intimidation, or physical obstruction. The law allows federal prosecutors to criminally charge people who violate it and gives victims the right to bring civil lawsuits against aggressors.

The report concludes that the Biden administration “weaponized” DOJ against people protesting outside abortion clinics, that it criminalized their conservative beliefs. But it doesn’t hold up very well, for reasons we’ll discuss below. It’s politics in the guise of prosecution, an effort to justify Trump’s pardons of 24 abortion opponents who harassed patients and attacked clinics and curry favor with parts of his base.

The report claims the people who were convicted by juries of criminal offenses were “targeted” for their religious views. DOJ put it like this: “Today, the Justice Department’s Weaponization Working Group published a report detailing the Biden Administration’s weaponization of the Freedom of Access to Clinic Entrances (FACE) Act. Based on a review of over 700,000 internal records, the report not only details specific ways the Biden Justice Department weaponized federal law, but also outlines the corrective action taken by the current Justice Department to make right the wrongs of the prior administration.”

Like the Trump Justice Department that produced it, the report isn’t concerned with protecting people from the violence connected with abortion in America. The attacks on clinics and their personnel that were reduced in the decade after the FACE Act was passed have been on the rise again since the Supreme Court’s decision in Dobbs in June of 2022. That same year, DOJ charged 26 people, more than it had charged in the three preceding years combined, with FACE Act violations. That reflects crimes committed, not some sort of bias—you can’t manufacture cases and then obtain convictions, and the Biden DOJ did obtain convictions, in virtually all of the cases.

By January of 2023, the FBI was investigating clinic arsons across the country, including in Memphis, Milwaukee, Charlotte, Seattle, Portland, Costa Mesa, Longmont, and Buffalo. No small problem. This is how the Trump Justice Department reacted:

“This Department will not tolerate a two-tiered system of justice,” said Acting Attorney General Todd Blanche in announcing the report. “No Department should conduct selective prosecution based on beliefs. The weaponization that happened under the Biden Administration will not happen again, as we restore integrity to our prosecutorial system.”

Irony and hypocrisy are dead, but I digress.

DOJ makes this bold claim: “President Trump promised to end the weaponization of the federal government. To many Americans, prosecutions under the FACE Act have been the prototypical example of this weaponization.” You all can tell me if I’m wrong, but I’m not sure “many Americans” are familiar with the FACE Act, let alone view the enforcement of a law that lets people obtain medical care without facing violence, threats, or intimidation when they’re trying to enter the building as “the prototypical example” of DOJ being weaponized.

I’m familiar with the elements of the FACE Act. We got up to speed on it fast in Alabama in 1998, after an anti-abortion activist set off a bomb at a Birmingham clinic, killing a police officer and seriously injuring a nurse. The law doesn’t target people for their religious views—in fact, it protects access to places of religious worship just like it does clinics. It ensures people can access those places, free of physical intimidation or harm, and prohibits damaging them. You can protest as much as you want outside of an abortion clinic or a church, consistent with local ordinances, so long as you don’t use force or threat of force or physical obstruction to intentionally injure, intimidate or interfere with (or attempt to do those things to) a person because they obtained or provided reproductive health services, or to intimidate people from obtaining or providing reproductive health services. That’s the complicated statutory language, morphed into English.

A nurse who was seriously injured when the bomb went off on January 29, 1998, is evacuated from the Birmingham clinic in this file photo from the AP

Here is the conduct that the Act prohibits, set forth in full:

“(a)Prohibited Activities.—Whoever—

(1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services;

(2) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship; or

(3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services, or intentionally damages or destroys the property of a place of religious worship.”

There is one obvious point that the new DOJ report misses: Prosecutors don’t convict defendants, juries do. In the cases the Trump DOJ objects to, juries convicted the defendants of FACE Act violations—and as this administration knows all too well, juries can refuse to convict, and grand juries can even refuse to indict, when a prosecution is deficient. Defendants have the opportunity to argue that a prosecution runs contrary to the First Amendment, both before a trial judge and on appeal. These defendants were convicted nonetheless. These cases aren’t about discriminating against Christians. To the extent the Biden DOJ “weaponized” the Department, it did so against criminals.

But the report makes some very serious claims about misconduct at DOJ.

For instance, it says that the Biden administration (you may recall Biden did not direct criminal investigations and prosecutions at DOJ, that’s a unique feature of the Trump administration) “closely collaborated with pro-abortion groups to track pro-life activists’ First Amendment activity” and using those relationships, “compiled evidence and dossiers that ultimately gave rise to search warrants and charges.” If it sounds sinister, it’s only because the report makes it out to be, without actually explaining why DOJ might talk to people who are victims and work with victims of criminal acts. That’s pretty much how criminal investigations work. Investigators have to gather evidence, which means talking to people who know what’s going on.

Then there’s the claim that this was about tracking First Amendment activity. The statute doesn’t, and couldn’t, prohibit protestors from expressing their views about abortion. DOJ, or at least DOJ pre-Trump, didn’t prosecute people for doing that; the guidance in the Justice Manual has always been to take care not to interfere with First Amendment-protected activity in these kinds of situations. Had that prohibition been violated, courts would have dismissed the cases pretrial, or, at worst, on appeal.

The report fails to acknowledge that the prosecutions it objects to were for real crimes that demonstrably took place. The investigations they now object to were predicated on actual incidents that occurred at clinics, involving real people who were harmed, threatened, or intimidated, and after that happened, investigators reached out to the groups most likely to have information about the incidents. Prosecutors then used the evidence they compiled to obtain search warrants and grand jury indictments. In other words, they charged people because they had sufficient evidence to obtain and sustain a conviction, not because they were executing a political agenda. If you parse the language that DOJ uses in the report like this, it’s clear that instead of the outrage they try to tint it with, we are talking about a criminal justice system doing its job: investigating possible crimes and prosecuting them where the evidence permits it.

The report contains a laundry list of claims so egregious that one would expect that someone at DOJ would have raised a complaint while all of this was happening. This was during the Biden administration, when the career ranks at DOJ had just been freshly restaffed by four years of Trump administration hires, at least some of whom would have presumably objected to targeting anti-abortion activists. Back then, DOJ’s internal ethics offices, PRAO and OPR, were still fully staffed by career professionals and attuned to even a whiff of political misconduct. But the report only comes now, one-year and three months into the second Trump administration, as Todd Blanche is auditioning for the role of attorney general. Knowing that he has the albatross of the Epstein Files and his interaction with Ghislaine Maxwell hanging around his neck, is it possible that this is an effort designed to endear him to conservative Christian senators and people who exert influence over them?

Among the claims in the report: “The Biden DOJ pursued significantly harsher sentences for pro-life defendants than violent pro-abortion defendants. The Biden DOJ requested an average sentence of 26.8 months for pro-life defendants, compared to 12.3 months for pro-abortion defendants.” That claim is made without making any effort to parse what crimes were charged—Congress sets the statutory maximums and the Sentencing Commission it created sets presumptive ranges for an individual defendant’s sentencing. When it comes to the FACE Act, the statute itself determines what kind of sentence prosecutors may seek based upon the conduct that was committed. The penalties in the statute are modest at first, but become more severe. A first offense is a misdemeanor. Someone who violates the statute a second or subsequent time can receive up to three years in prison upon conviction. There are lesser penalties for nonviolent physical obstructions, but “if bodily injury results, the length of imprisonment shall be not more than 10 years, and if death results, it shall be for any term of years or for life.” It’s easy to make bold claims about misconduct, but without even digging into 80+ pages of specifics, the faultlines are clear from the outset.

The specifics of these claims will undoubtedly engender a response from former DOJ officials. But even on its face, the way they’re presented, as we’ve discussed, suggests politics as usual from this administration. Rather than suggesting misconduct during the prior administration, it smacks of more of the same from a Justice Department that now works for the president, helmed by his former criminal defense lawyer, being used to try and score political points for the White House instead of doing justice.

The experience in Birmingham explains why federal prosecutors take enforcing the Act seriously. A police officer died. A nurse was seriously injured and had to undergo repeated surgeries and long-term rehabilitative therapies. Patients in the parking lot, students walking to class at the nearby university, and an entire community were traumatized by an act of deadly violence committed by someone claiming he was trying to save lives. It’s one thing to express your views publicly, and entirely another to take a life as an “expression” of that view. Prosecutors have an obligation to do these cases to protect their communities and hold criminals accountable.

The Southern Poverty Law Center (SPLC) parsed the statistics on violence at clinics: “The 1980s saw a huge wave of clinic bombings, and by the middle of the decade, according to historian Karissa Haugeberg, anti-abortion activists ‘had deployed coercive, intimidating, or violent tactics at nearly every abortion clinic in the United States.’ The violence peaked in 1984, when attackers set fire to or bombed 29 clinics.” SPLC included a disturbing anecdote, “At a 1985 convention hosted by Joseph Scheidler, president of the Pro-Life Action League in Chicago, attendees wore pins that included an image of explosives and were greeted outside by a sign that read ‘WELCOME CONVENTIONEERS, HAVE A BLAST!’” They detail the violence here. And as it began to reescalate after Dobbs, prosecutors tried to deter it with one of the most important tools they possess, prosecution.

If you need additional evidence of the Department’s bad faith in this matter, it also fired at least four prosecutors who were involved in FACE Act cases. According to MSNOW, “The firings include that of a veteran Civil Rights Division prosecutor Sanjay Patel, who led the team enforcing the FACE Act.” The report cited two sources who said the firings “were coordinated with the Tuesday release of the report so the Justice Department could boast of removing people involved in alleged ‘weaponization.’”

Prosecutors are assigned cases to prosecute. They do their jobs. This, like the firings of FBI agents and prosecutors who worked on January 6-related cases and other matters Trump disapproved of, is about injecting politics into prosecution, not restoring integrity, as Todd Blanche claimed. Just because they say it doesn’t make it so. But they’re counting on the fact that you don’t know how DOJ operates, that you’ll take their words, their smears of decent, hardworking public servants at face value, and that they’ll get away with it. Now you know what this is really about.

Tonight’s column runs longer than I aim for, but not nearly as long as it would have taken for me to rebut every one of the false or misleading claims made in 882 pages. This gets us started, and hopefully gives you a basis for explaining to others how clearly flawed this report and its conclusions are. But worst of all, an administration that stokes fear by talking about the need to remove dangerous, violent “illegal aliens” from American streets while instead arresting hardworking people and their babies is also giving pardons and a pass to people committing actual violence at reproductive healthcare clinics. An administration that just today asked a court to vacate the convictions of some of the most dangerous, violent people involved in January 6—Oath Keepers and Proud Boys, Stewart Rhodes, Kelly Meggs, Kenneth Harrelson, and Jessica Watkins—refuses to protect people walking into clinics. This administration’s disdain for the intelligence of Americans is infuriating. So let’s shine a little sunlight and share information about what is really happening here.

Thanks for being here with me at Civil Discourse. Your paid subscriptions make it possible for me to invest the time and resources it takes to write the newsletter, and I’m very appreciative.

We’re in this together,

Joyce