by Chris Gacek
November 2, 2017
On October 6th, the Commonwealth’s Attorney for Alexandria, Va., announced his findings in a report regarding the use of force by law enforcement officers during the shooting of Representative Steve Scalise (R-La.) and others at a baseball field on June 14, 2017.[i] Bryan L. Porter concluded that the multiple shooting and attempted mass assassination constituted an act of terrorism under Virginia law.
The Porter report is significant because its conclusion stands in sharp contrast to the report offered by two FBI officials at a press conference eight days after the shooting.[ii] Andrew Vale, the Assistant Director in Charge of the FBI’s Washington Field Office, indicated that the shooter acted alone and that there was “no nexus to terrorism.”[iii] He also stated that the agency would be investigating the shooting as an assault on a member of Congress and an assault on a federal officer. No indication was given that a terrorism investigation was being conducted, and the statements made seemed to downplay the shooter’s ideological and political beliefs.
It is important to recall the key facts in the case. Early on the morning of June 14, Rep. Scalise, the Majority Whip of the U.S. House of Representatives, and numerous other GOP House members and senators were the primary targets of a mass assassination attempt at an Alexandria baseball diamond. Scalise was shot in the hip and nearly died from his wounds. Two other players on the field, not elected officials, were shot and received dangerous wounds. Two United States Capitol Police agents, present as part of the protective detail for Rep. Scalise, were wounded by gunfire—one seriously.[iv] The would-be assassin, James T. Hodgkinson, was killed after being shot three times.
Commonwealth’s Attorney Bryan L. Porter made the following observation about the would-be assassin’s political affiliation and motivations:
Hodgkinson held strong political opinions and was very unhappy about the outcome of the 2016 presidential election. He spent a significant amount of time on social media, using it to express his political views, such as his strong support for Senator Bernie Sanders’ presidential campaign.
Another example of this is that Hodgkinson “liked” the Southern Poverty Law Center on Facebook—indicating that he was a fan of the organization and its attacking brand of politics.
Citing the Virginia terrorism statute, Porter confidently concluded, “The evidence in this case establishes beyond a reasonable doubt that the suspect, fueled by rage against Republican legislators, decided to commit an act of terrorism as that term is defined by the Code of Virginia.”[v]
Page 9 of Porter’s report may contain the most significant information pointing to the FBI’s misjudgment in the case—evidence that Hodgkinson conducted a number of surveillance sweeps of the playing field. After the shooting, there was a report to police that Hodgkinson had parked his van at the field on June 10th and walked around the field “casing” it. Porter reported that “at least one member of the Republican baseball team remembered seeing the suspect sitting in the Simpson field stands and watching the team practice on the morning before the incident, June 13.”[vi]
The Alexandria prosecutor’s report also noted that video files from Hodgkinson’s phone “show video of [the baseball diamond] recorded in April 2017.” This field cannot be described as a tourist site in Alexandria. Rather, it is a relatively unattractive part of the city that one would not visit at 7 a.m. but for the baseball practice. Furthermore, “several witnesses came forward and reported seeing the suspect walking around [the field] in May 2017.” Porter observed that “[f]rom these facts, it may be inferred that the suspect had already selected Simpson Field as a potential target as early as April 2017.”
Even if one does not agree with Porter that Hodgkinson had determined his course of action in April or May 2017, his viewing the practice the day before and looking over the location on June 10th gives strong evidence as to his intentionality in committing the shooting. Of course, this is only underscored by the widely known fact that Hodgkinson had asked two members of the GOP team only moments before the shooting, while walking into the parking lot, whether the Democrat or Republican team was practicing. When told that the GOP team was on the field, he replied “ok, thanks” and proceeded to get his rifle and pistol from his van. The shooting began shortly thereafter.
The shooting was no spur-of-the-moment loss of control by Hodgkinson. It tied into his ideological animosity to the political views of the men he was trying to assassinate, and he intended to kill as many of them as he could.
The Patriot Act sets forth the definition of “domestic terrorism” at 18 U.S.§ 2331(5). Such terrorism “means activities that”
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.
It requires little imagination to see how sections 2331(5)(B)(ii) or (iii) might apply to Hodgkinson’s mass assassination attempt. Given his strong anti-Republican and hard-left beliefs combined with his effort to kill numerous members of the U.S. House and Senate, Hodgkinson could easily be seen to be attempting to influence federal government policy by intimidation or coercion—by shooting leading political figures of the majority party in both legislative bodies.
Moreover, it is straightforward to see Hodgkinson’s actions as attempting to influence the conduct of government by assassination. At the very least, dead or significantly wounded members don’t vote or lead while incapacitated. The Majority Whip of the U.S. House of Representatives had been taken from his duties for almost four months, and he may now assess his political future differently. Even though he did not kill any members of Congress, his actions clearly affected our government if only for the horrific effect it had on Majority Whip Scalise.
All of these facts that were available to Mr. Porter and his prosecutor’s office in Virginia were also available to the FBI. Yet, a conservative reading of the federal domestic terrorism definition makes it clear that Hodgkinson’s actions should be characterized by the FBI as terrorism. Yet, the FBI stated eight days after the shooting that there was no nexus to terrorism. Why the rush to shut down a proper inquiry?
Congress needs to look into this and discover why the FBI is mischaracterizing what took place in Alexandria. It isn’t fair to Mr. Scalise or the other victims of this crime. More significantly, it is not accurate, honest, or truthful, and the American people deserve better.
It is a matter of great importance that our leading law enforcement agency understand terrorism. If the FBI cannot apply the law to simple facts, then it may be time for Congress to make some changes in that agency and its Washington field office.
[i] Bryan L. Porter, Use of Force Investigation and Analysis, Commonwealth’s Attorney, City of Alexandria (Oct. 6, 2017) (https://www.alexandriava.gov/uploadedFiles/commattorney/info/17-001%20-%20Simpson%20Field%20Shooting%20-%20FINAL%2010.06.17.pdf).
[ii] Law Enforcement Press Conference on the Shooting of Rep. Steve Scalise and others, FBI Field Office, Washington, D.C.(June 21, 2017): https://www.facebook.com/wjlatv/videos/10155472388738734/ (Facebook page for WJLA-TV). The two FBI officials who participated were Andrew Vale, Assistant Director in Charge, Washington Field Office, and Timothy Slater, Special Agent in Charge, Criminal Division, Washington Field Office.
[iii] It is possible for an act of terrorism itself to have no “nexus to terrorism” – in the sense of a wider terror network, but Vale could have made this more clear.
[iv] Both members of Rep. Scalise’s protective detail, Special Agent David Bailey and Special Agent Crystal Griner, were fired upon; Griner was severely wounded after being shot in her left ankle.
[v] “See Va. Code § 18.46.4. In the pertinent part, the Code of Virginia defines an ‘Act of Terrorism’ as ‘an act of violence… committed with the intent to (i) intimidate the civilian population at large or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation.’” Carla Branch, “Commonwealth’s Attorney Finds Use Of Deadly Force In June 14 Shooting Justified,” AlexandriaNews.org (Oct. 6, 2017) (http://www.alexandrianews.org/2017/10/commonwealths-attorney-finds-use-of-deadly-force-in-june-14-shooting-justified/).
[vi] Porter, Use of Force Investigation and Analysis, at 9.