Why the U.S. Government Cannot Prosecute 'Domestic Terrorism' as a Crime

Vice President J.D. Vance and outgoing Department of Homeland Security (DHS) Secretary Kristi Noem both described Renée Good—an activist shot three times in her car by a federal immigration officer—as engaged in domestic terrorism.

Two weeks later, White House deputy chief of staff Stephen Miller called Alex Pretti—who was shot at least 10 times by officers—a domestic terrorist who tried to assassinate federal law enforcement.

In October 2025, a Border Patrol officer shot Marimar Martinez five times in her car. Unlike Good and Pretti, Martinez survived. DHS labeled her a domestic terrorist, claiming she had rammed the officers' vehicle while it was boxed in. Even after Martinez proved in court that officers had sideswiped her car before opening fire, DHS refused to withdraw its terrorist designation.

No Federal Law Exists to Charge 'Domestic Terrorism'

Despite officials' frequent use of the term, there is no federal statute that allows prosecutors to charge someone with domestic terrorism.

Federal law defines domestic terrorism as criminal acts that are dangerous to human life and intended to intimidate civilians or influence government policy. However, as the FBI noted in a November 2020 memo, this is a definitional statute, not a charging statute.

The FBI prefers the term domestic violent extremism because advocating such beliefs is not prohibited by U.S. law.

Sentencing Enhancements and Potential for Abuse

Federal sentencing guidelines already allow for an enhanced penalty if an offense involves international or domestic terrorism.

This provision has raised concerns about potential misuse. For example, when leaders of the far-right Proud Boys were convicted for organizing the U.S. Capitol riot on January 6, 2021, prosecutors argued the violence was no different than blowing up a building.

U.S. District Judge Timothy J. Kelly disagreed but still imposed terrorism enhancements, sentencing each leader to over a decade in prison. (All participants received a presidential pardon in 2025.)

Historical Precedents of Government Overreach

Over the past 25 years, the government has repeatedly expanded its power under the guise of fighting terrorism, both domestically and abroad.

The Trump administration claimed the authority to label individuals as domestic terrorists based on perceived offenses such as anti-Americanism, anti-capitalism, and anti-Christianity.

The FBI used the January 6 riot as justification to dramatically increase surveillance of American citizens who opposed then-President Joe Biden.

Critics argue that any further expansion of such powers risks normalizing government overreach under the banner of national security.