Reynaldo Aligada Jr. and Shannon Elkins initiated the challenge in pretrial filings last month when they argued that four of the five federal charges against their client, Michael Hari, should be dismissed.
The crux of their argument was that Congress exceeded its authority under the Commerce Clause of the U.S. Constitution when it passed and modified laws that make it a federal crime to damage real property because of the religious nature of that property, or to forcibly obstruct the free exercise of religion.
Two other charges — conspiracy to commit federal felonies with fire or explosives, and carrying or using a destructive device related to crimes of violence — also should be dropped, Hari’s attorneys argue, because those alleged crimes are predicated on the statutes that they contend are unconstitutional.
Federal attorneys replied early this month that laws under which Hari was charged are without merit and have successfully withstood challenges in other jurisdictions.
U.S. Magistrate Judge Hildy Bowbeer entertained oral arguments on the motion for just under an hour Monday, then took the matter under advisement. She will ultimately issue a report and recommendations for consideration by U.S. District Judge Donovan Frank, who is overseeing the case.
The indictment alleges that Hari rented a pickup truck in Illinois and drove to Minnesota with his alleged co-conspirators, Joe Morris and Michael McWhorter, armed with a pipe bomb that Hari had built in Illinois. Along the way, they bought diesel fuel and gasoline, which they mixed together in a plastic container. Early on Aug. 5, 2017, Morris broke a window at Dar Al-Farooq Islamic Center in Bloomington and tossed the container into the building. McWhorter then lit the fuse on the pipe bomb and tossed it inside, igniting the fuel.
Several worshipers were present in the mosque at the time, though none were injured. The fire cause substantial structural damage.
Morris and McWhorter pleaded guilty in January to two charges: intentionally obstructing and attempting to obstruct by force and the threat of force the free exercise of religious beliefs, and using a destructive device in relation to crimes of violence.
Minnesota Public Radio reported that Aligada had argued in court Monday that Congress overstepped its authority under the Constitution when it passed laws that make the alleged conduct federal crimes. Such authority resides only with state or local jurisdictions, Aligada and Elkins argued in court filings. They said that damaging religious property and making threats have no impact on interstate commerce, so Congress had no business writing laws against such activities.
“Thus, should the federal government wish to regulate such activity under the auspices of its Commerce Clause authority, it is incumbent upon Congress to demonstrate a sufficient linkage with interstate commerce,” Aligada and Elkins wrote.
While Hari’s attorneys argued the law, federal prosecutors also noted the facts in the case.
MPR reported that Timothy Visser, a trial attorney with the U.S. Department of Justice civil rights division, stressed that people were inside the mosque when the bomb exploded, and he said that Hari intended to interfere with their religious practice.
In court filings, Visser, together with Assistant U.S. Attorneys John Docherty and Julie Allyn, said that Hari’s attorneys “ignore the plain language of the statutory provisions at issue, minimize and/or misconstrue the relevant legal standards, and misapply governing law.” They cited legal precedents that found that prosecutorial discretion about what charges to file and where was largely a function of the executive branch “particularly ill-suited to judicial review.”
After Bowbeer weighs in, Frank will decide who is right. If they determine that the law is unconstitutional, it could affect criminal cases nationwide.
On Tuesday, Frank canceled Hari’s Sept. 30 trial date pending resolution of the matter.