To clarify this debate, we must distinguish between speech and lawbreaking. No donor or grantee should be criminally prosecuted for speech. Only those who violate laws should face legal jeopardy.

Another important distinction is between violating nonprofit laws versus breaching criminal laws. Capital Research Center reports have long documented apparent nonprofit-law violations that involve many areas of “charitable” work and span many donors on the left. In the present debate, the most obvious nonprofit law at issue is the Internal Revenue Service’s half-century rule that neither 501(c)(3) charities nor 501(c)(4) nonprofits may urge civil disobedience that breaks laws. The First Amendment protects the right to advocate such lawbreaking, but a nonprofit that enjoys tax privileges can lose those privileges for supporting unlawful conduct. The Times ignores this distinction, even though it admits that nonprofits criticized in the center’s report “encouraged U.S. activists to block roads or destroy property during protests.”

Compared with tax-law cases, criminal prosecutions of nonprofits or their donors would rightly face a much higher bar, because it must be proved that they intended to facilitate lawbreaking. Investigations in this area should begin by focusing on people who commit crimes before expanding outward to target any nonprofits or donors for aiding criminal acts.

Again, such charges won’t be easy to prove. Aiding and abetting a crime entails knowingly and intentionally assisting in its commission, while a conviction for conspiracy requires proving that a defendant intentionally entered into an agreement to commit a crime, and then an overt act in support of the conspiracy was carried out. If the Open Society Foundations’ claims of innocence are true, they have nothing to fear.

On the other hand, some nonprofit observers point to examples like the shutdown of streets surrounding Chicago’s O’Hare International Airport last year by the radical anti-Israel group A15 Action. Those blockages arguably violated federal civil-rights law. A Tides Center group advertised online in advance that it was raising money to bail out any A15 members who were arrested, which arguably makes Tides an accomplice or conspirator to the crimes that led to arrests.

Prosecuting A15 or Tides would be unconventional for federal prosecutors, but not necessarily unjustifiable under existing law. A federal judge in Illinois has rejected a civil suit based on a similar legal theory, but that case, Manhart v. WESPAC Foundation, is under appeal, with friend-of-the-court briefs in support from a dozen states and the Manhattan Institute.

Prosecutions that use traditional criminal laws would be more likely to succeed than ones using the Racketeer Influenced and Corrupt Organizations laws, as often suggested by those who favor legal action against left-wing nonprofits and donors. RICO prosecutions require building complicated cases and usually take years to resolve.

However they are brought, any prosecutions should aim to strengthen the rule of law and America’s vigorous, highly diverse civil society. We suffer from both political violence and prosecutorial abuses, as no one knows better than President Trump. While conservatives should be wary of setting any precedent for overzealous prosecutions, left-leaning nonprofits and donors should honestly examine whether they are respecting nonprofit and criminal laws alike.