Trump's Designation of Antifa as Domestic Terror Is Legal Nonsense

On Monday the Trump regime signed yet another executive order that plainly states what many of us have known for a while now—that the cabal currently in power are unabashed fascists. US President Donald Trump declared that those opposed to fascism, those who are anti-fascist in this county—a country that has fought wars against fascism—are now labeled as “domestic terrorists” by this current government—in essence, enemies of the state.

Trump and his minions do not have the constitutional or statutory authority to create a terrorist designation pertaining to an amorphous political belief. Period. The First Amendment continues to protect freedom of speech and association, and would thus prevent any congressional attempt to enact a law that would allow the US government to designate US groups as terrorist organizations based simply upon their political activities. But, as we know with this regime, there is the law as it has existed for over 100 years, and then there is their attack on the law.

This EO targets “Antifa” which is obviously short for “anti-fascist.” Anti-fascists are opposed to fascists. Fascism rejects democracy. Fascists sign executive orders (no democratic process involved) that seek to malign or punish their political opponents, because that is the only way they can take more control from the people in a democratic country. Fascists attempt to undermine democratic elections, erase actual history, and manipulate words to falsely justify their propaganda. This EO is another example of Trump’s war of words—an attempt to recreate reality in order to solidify a fascist dictatorship.

Antifa is not an organization or an “enterprise.” There are no “members.” It is a social movement opposed to fascism, similar to feminism or anti-racism—not a single group or entity. One of our trial experts explained fascism thusly:

Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy, but effective collaboration with traditional beliefs, abandons democratic liberties and pursues with redemptive violence and without ethical or legal constraints, goals of internal cleansing and external expansion.

The majority of Americans hold anti-fascist political beliefs. Those beliefs, opinions, and associations are the foundations of US First Amendment constitutional safeguards. Anti-fascist beliefs are also closely intertwined with anti-racist beliefs. During the 1930’s Spanish Civil War, many Americans went to fight fascists (including my great-uncle). As the Smithsonian explains in “A Brief History of Anti-Fascism,” about one of these American antifascists:

Eluard Luchell McDaniels traveled across the Atlantic in 1937 to fight fascists in the Spanish Civil War, where he became known as "El Fantastico" for his prowess with a grenade. As a platoon sergeant with the Mackenzie-Papineau Battalion of the International Brigades, the 25-year-old African American from Mississippi commanded white troops and led them into battle against the forces of General Franco, men who saw him as less than human. It might seem strange for a Black man to go to such lengths for the chance to fight in a white man’s war so far from home—wasn’t there enough racism to fight in the United States?—but McDaniels was convinced that anti-fascism and anti-racism were one and the same. ‘"I saw the invaders of Spain [were] the same people I’ve been fighting all my life," Historian Peter Carroll quotes McDaniels as saying. "I’ve seen lynching and starvation, and I know my people’s enemies." McDaniels was not alone in seeing anti-fascism and anti-racism as intrinsically connected; the anti-fascists of today are heirs to almost a century of struggle against racism.

When Hitler’s fascist regime and the Axis powers seized control of Germany, other global countries, including the US, France, UK, USSR, and many others, became the Allies, who ultimately won that war and stuffed fascism back down into the dark evil place where it has mostly slumbered. It may take similar global action to stop the US from spiraling into full-blown fascism, and it could take generations to restore democracy if it is lost.

Weak political leaders must also target their political opponents’ funding in order to maintain fake power (think political ads, campaign staff, political signs, etc.). Because anti-fascist beliefs are not an organization or enterprise, and because a belief does not have “members,” it is also obvious that “Antifa” is not funded. It never has been. It doesn’t have a mailbox or bank account or hierarchy. Clearly the Trump fascist regime wants to go after George Soros, a billionaire liberal philanthropist, and is using this as an obvious weapon to actually go after democrat-leaning funding sources, which are in fact the regime’s political opponents. The goal is to target and destroy the funding of the regime’s political opponents; money they will use to oppose fascist authoritarians and their kind within the democratic electoral process. A truly fair election will likely remove the fascist dictator by overwhelming popular vote—so of course this fascist regime is also targeting the electoral system. To date, Soros has not sent a check to “Antifa.”

The Trump regime tried labeling anti-fascists as domestic terrorists in a 2017 EO as well, and that failed. Trump’s own Federal Bureau of Investigation (FBI) director said that enforcing that EO would be difficult because Antifa is an ideology, not an organization, and it lacks the hierarchical structure that would usually be required to designate it as a federal terror group. Nothing has changed within the US Constitution or our system of laws, or the facts about anti-fascists in the US during this intervening time period.

The protests happening around the country are not Antifa protests. They are the American people standing up to disgusting, cowardly, racist, ignorant executive branch power.

The wording of this EO is what we call in lawyer talk “sloppy.” For instance, the EO references “material support” provided by anyone “claiming to act on behalf of Antifa” to “any and all illegal operations—especially those involving terrorist actions”—without even citing to the federal material support statute, 18 USC § 2339A. The existing legal precedent regarding “material support” comes from prosecutions related to material support of FOREIGN terrorist organizations (and a few states with domestic material support statutes). The US secretary of state is authorized to designate foreign groups as “foreign terrorist organizations” (FTOs). No congressional approval is needed for the secretary to make this designation, but they must inform Congress seven days prior to doing so. Once designated, it is illegal under US law to give money to an FTO—and, significant to the Trump regime, the US could also freeze any assets held by members of the designated group in a US bank, and members could be threatened with sanctions.

TO BE CLEAR, THERE IS NO EQUIVALENT DOMESTIC TERRORISM LAW, which is why this Trump declaration is just bullshit without legal authority. There is no federal statute that would allow him to designate a domestic, US-based group as a terrorist organization. In part, this is because of the serious First Amendment concerns that would obviously result. Constitutional law scholars all agree that this “declaration” has no legal impact.

In the 2010 US Supreme Court case Holder v. Humanitarian Law Project, 561 US 1 (2010), a case involving foreign organizations, Justice John Roberts ruled that attempts to criminalize support for designated domestic terrorist groups would not “survive First Amendment scrutiny,” and “Congress could [not] extend the same prohibition on material support at issue [in this case regarding a foreign org] to domestic organizations.” Will Roberts overrule himself? Not likely….

Holder and the First Amendment remain the law of the land, and this executive order is flagrantly unconstitutional. It doesn’t stand a chance of passing legal muster in a legitimate courtroom.

But that doesn’t prevent this EO from causing harm to Americans until the judicial branch of government finds it to be unconstitutional and illegal. The Trump regime will likely use this EO to increase surveillance and criminalization of its adversaries (increasingly similar to Vladimir Putin’s Russia, where political opponents are murdered in prisons). They may attempt to use it to target, threaten, and punish people who openly protest the regime’s policies and actions. When the FBI has carried out previous domestic terrorism investigations against neo-Nazi groups like the Base and Atomwaffen Division, US prosecutors used criminal enterprise laws like Racketeer Influenced and Corrupt Organizations (RICO). We’ve seen an uptick in the State’s use of RICO to target political expression—e.g. the Atlanta Cop City cases, where a judge recently tossed out the abusive and illegal use of RICO against activists.

The regime may use this designation to place the military in US cities to enforce the will of the dictator, and justify it as “fighting Antifa protests.” To be clear, the protests happening around the country are not Antifa protests. They are the American people standing up to disgusting, cowardly, racist, ignorant executive branch power.

No matter what the new bullshit of the day is, know that Civil Liberties Defense Center will be there to defend you in court if needed. We offer pro-bono legal representation for people who are targeted for their political activism and constitutionally protected activities. We have lots of know your rights and risks legal resources too—even if you think your rights will be trampled upon, you still need to assert them in order to be able to raise them in court. It’s critically important for Americans to continue to fight against fascism and to defend our imperfect democracy.

This piece was originally published on the Civil Liberties Defense Center website.