President Trump declared that he will issue yet another Executive Order, this time designating Antifa as a “terrorist organization.” There are a few problems with doing so, starting with the fact that antifa isn’t an organization at all, but rather an ideology seized upon by left wing radicals who cloaked themselves in the name when they engaged in violence.
Antifa is a label for a political subculture or protest style. The phenomenon does not have a leader, an initiation process, membership rolls, a headquarters, a bank account or a centralized structure.
Cynthia Miller-Idriss, an American University professor who studies domestic extremism, said antifa was an idea that could mobilize people. She compared it to concepts or ideologies like “white supremacy” and “Islamist extremism,” as distinguished from specific groups like the Aryan Brotherhood or Al Qaeda.
In the aftermath of George Floyd’s murder, we heard a lot about antifa. Since then, not much. And yet, Trump dusted off antifa as his next target.
I am pleased to inform our many U.S.A. Patriots that I am designating ANTIFA, A SICK, DANGEROUS, RADICAL LEFT DISASTER, AS A MAJOR TERRORIST ORGANIZATION.
There is, of course, no federal law permitting the designation of a domestic group as a terrorist organization.
Federal law empowers the executive branch to deem overseas groups “foreign terrorist organizations.” The law gives such groups a due process right to hearings to challenge the designation. If the designation stands, the status allows the government to freeze such groups’ assets and makes it a crime to provide material support to them.
“Trump can declare whatever he wants to declare, but there is no legal authority to actually designate a domestic group as a terrorist organization even assuming that antifa is an organization and not just an ideology,” [Mary McCord] said.
So if there is no actual organization known as antifa, and if there is no actual terrorist organization for domestic groups, what is this all about? Trump gave away the game.
I will also be strongly recommending that those funding ANTIFA be thoroughly investigated in accordance with the highest legal standards and practices. Thank you for your attention to this matter!
Under the guise of going after a terrorist organization, this will provide the excuse, the pretext, to go after the organizations funding progressive causes, such as George Soros’ Open Society and the Ford Foundation. This was wrong when New York sought to deprive the NRA access to banking, and it is just as wrong now. Yet, this is different and with far more potential for harm as the feds have far greater powers to wreak havoc with both the finances and the liberty of these organization. And what of the ACLU? Or FIRE?
When the connections between the non-existent antifa and organizations that take stands that make Trump frown are grounded in the sort of vagaries, nonsensical legal claims and chaos theory that substitutes for thought in this administration, there is no limiting factor to distinguish who or what will be subject to government attack and attachment.
But is this even constitutional?
First Amendment protections for freedom of speech and association would probably bar any attempt by Congress to enact a statute allowing the government to designate domestic groups as terrorist organizations and make it a crime to help them, legal specialists say.
Who these “legal specialists” are goes unmentioned, but the concept isn’t much of a stretch per se. That said, so what? As made clear by Brendan Carr’s “we can do it the easy way or the hard way,” he cares nothing for the First Amendment. Trump made his position even more clear.
Does constitutionality really matter anymore? The Trump administration rules by executive fiat, with the apparent blessing of congressional Republicans. It has demonstrated neither recognition nor concern for constitutional limitations. It has ignored the orders of lower federal courts, and the Supreme Court has bent over backward to avoid confronting a constitutional crisis which would likely result in Trump telling Chief Justice John Roberts he’s fired.
Other than optics, an Executive Order designating antifa a terrorist organization would be legally laughable. But given the reaction of embracing inane excuses of the MAGA faithful to his evisceration of the First Amendment when it comes to shutting down shows such as The View, the likelihood that this EO will serve as pretext to seize the funds and prosecute the personnel of progressive (first, and then liberal and afterward moderate) organizations seems highly likely. Antifa isn’t really the problem, just the excuse. And it’s probably good enough for Trump.
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The ACLU is a joke and I didn’t waste time looking at their website, but FIRE has consistently called out Trump’s attacks on free speech. They haven’t released anything about the “antifa” nonsense but I am confident that they will. Recent headlines from their site:
“FIRE statement on FCC threat to revoke ABC broadcast license over Jimmy Kimmel remarks about Charlie Kirk”
“Why RICO can’t be used to punish speech”
In other news, “Drugs” and “Subway Surfing” have also been designated as terrorist organizations.
Scott, with respect, I’d suggest your apparent concept of what is an “organization” may be too narrow. For example, the concept of “enterprise” in the RICO statute includes individuals “associated in fact” that require very little in the way of structure or heirarchy. The Supreme Court, in Boyle v. United States, adopted a broad standard for satisfying RICO’s enterprise requirement. No structural heirachy is mandated: “a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose” is sufficient. I don’t know enough about Antifa to know if that could be shown, but the fact that those acting under the Antifa monikor engage in fundraising and organizing “mostly peaceful” protests that destroy property might well satisfy the requirement.
That doesn’t mean, of course, that Antifa is, or could be a “terrorist organization,” whatever that means, but it does suggest that the “organization” part of that term could well encompass the organized activity in which individuals engage under the Antifa banner. (It also doesn’t address what aspects of activities occurring under the Antifa banner are protected by the 1st Amendment, but I think it’s fair to say that arson, property destruction, physical intimidation, theft, and physical attacks on law enforcement officers do not fall within those protections.)
Yes, use RICO of all things to parse the meaning of “organization.” Please never bring that damned statute up again. It’s more complicated than you think it is. Thanks.
It is indeed very complicated. Perhaps that’s why I wrote a 3-volume treatise on on Civil RICO, which has the identical violation requirements for a criminal RICO offense (including the enterprise requirement discussed here). I’m sure you know that RICO is one Title of the 1970 comprehensive statute addressed to organizational crime (Title IX, “Racketeer Influenced and Corrupt Organizations”), so it’s interpretation may have some bearing on what a statutory “organization” might encompass.
You’re welcome.
RICO should stay in such treatises and be relegated to history. I’ll concede you know how complicated it is then, but find the reasoning from RICO cases inapplicable to the situation at hand.
That said, the admin will probably try to wield it like a bludgeon and expand its already bloated scope. You could be right in the end that it’s relevant. Antifa, mafia, close enough.
RICO is absolutely relevant to this discussion, not only because its definition of “organization” is likely to be relevant to this issue, but also because it’s explicitly being weaponized against free speech. From a recent FIRE article: “Last week, protesters confronted President Trump at a D.C. restaurant. On Monday, Trump said he asked Attorney General Pam Bondi to look into bringing RICO charges against one of the protesters because she was a “paid agitator.” Then Tuesday night on CNN, Deputy Attorney General Todd Blanche told Kaitlan Collins that RICO investigations could occur. ”
[Ed. Note: I posted this even though it wildly missed the point under discussion.]
The United States Code uses the word “organization” in a variety of places. RICO is one, but there are many others as well. I think you’re trying to connect the word to RICO’s definition is no better than any other usage.
I would argue that the dictionary definition of organization (“an organized body of people with a particular purpose”) is the appropriate definition of Trump’s EO. If Trump wanted organization to be defined by RICO, the EO could have said so. It did not.
The tooth fairy is a terrorist. (There I fixed the whole thing.)