Trump's Domestic Terrorism Executive Orders

In recent days, cult leader, convicted felon, and failed President Donald Trump has taken presidential actions aimed at clamping down on vaguely defined "incitement of violence." Justifying his moves due to recent acts of political violence, including the murder of Charlie Kirk and the shooting at an Immigration and Customs Enforcement office in Dallas, Texas, Trump is mandating that the powers of government be used to attack the political left. There are two possible interpretations of Trump's efforts. The first is that this signals the beginning of an all-out government-led assault on the First Amendment rights of those with whom Trump disagrees. This school of thought expects government investigations of organizations that support causes popular on the left, such as the rights of immigrants. The second interpretation is that Trump is demonstrating weakness and has taken to arm waving and foot stomping in lieu of concrete moves. Like a swimmer who is splashing around wildly but making little forward progress, Trump is floundering and making up for that with wild demonstrations that are largely symbolic. The truth may lie somewhere in the middle.

By way of background, Tyler Robinson has been arrested for killing Charlie Kirk. While officials have not yet announced a motive for the attack, they have suggested that Robinson was angry about Kirk's position on gay and transgender rights. Robinson has not been linked to any political organization, and his politics do not appear to be well-defined. The shooter at the Dallas ICE facility was identified as Joshua Jahn. Jahn took his own life after shooting three ICE detainees, one who died almost immediately and another who died several days after the attack. Jahn appears to have been motivated by anger towards ICE, though again his personal politics are not well-understood, and he has not been linked to any political organization. Both of these perpetrators were deeply involved in online activities, especially gaming, and neither had a history of political activism. Authorities currently believe that they acted alone. As such, Robinson and Jahn do not seem to be examples of left-wing political violence. This has not stopped Trump administration officials from exploiting these violent acts to place blame on the left and to justify crackdowns on Trump's opponents.

On September 22, Trump signed an Executive Order titled "Designating Antifa as a Domestic Terrorist Organization". This document claims that "Antifa is a militarist, anarchist enterprise that explicitly calls for the overthrow of the United States Government, law enforcement authorities, and our system of law." This, the very first sentence of the Executive Order, highlights a fundamental problem that this action faces. Antifa in the United States is not an organization. It has no officers, no board of directors, no bylaws, and no members. Hence, the Executive Order resorts to describing it as an "enterprise," a word with no clear meaning in this context. Antifa is mostly a right-wing boogeyman, a creation of fevered imaginations. In the MAGA mind, Antifa is blamed for almost every anti-Trump activity. Crowds of protesters? Antifa. A lone gunman who opposes ICE? Antifa. The escalator at the United Nations? Also probably Antifa. It is not a joke that in 2020, residents of Klamath Falls, Oregon, population 21,813, became convinced that busloads of Antifa members were on their way to loot and destroy their town. Town residents, armed with an array of firearms, gathered to defend the city. When Antifa failed to appear, residents claimed that the group had heard about the residents' opposition and retreated. Like the imaginary buses, Antifa serves a role in right-wing political activism by providing a stalking horse against which to rile up conservatives. Now, Trump wants the government to start taking action against this mirage.

The Executive Order designates Antifa as a "domestic terrorist organization." Never mind that Antifa does not exist; neither does the "domestic terrorist organization" designation as a legal term. U.S. law allows for foreign organizations to be designated as “foreign terrorist organizations," but there is no legal domestic counterpart to that classification. Nevertheless, it is concerning that the EO orders executive departments and agencies to "investigate, disrupt, and dismantle any and all illegal operations — especially those involving terrorist actions — conducted by Antifa or any person claiming to act on behalf of Antifa, or for which Antifa or any person claiming to act on behalf of Antifa provided material support, including necessary investigatory and prosecutorial actions against those who fund such operations." Take a hypothetical, but realistic scenario in which an individual makes a donation to a local mutual aid group. That group then later circulates a flyer for an anti-ICE protest whose organizers are simply local activists, and then during the protest, some individuals are arrested for obstructing ICE agents from making arrests. If anyone involved, however marginally, claims to have been acting on behalf of Antifa, everyone — including the individual who made the initial donation and the mutual aid group — could potentially be subject to government sanctions. Exactly with which laws they could be charged with breaking is another question, but having law enforcement come to your home to question you about your involvement with a terrorist organization can be intimidating. That is likely the entire motivation for the EO. It is not meant for actual legal actions but can be used to intimidate and create fear among Trump opponents.

Three days later, Trump signed another Executive Order, this one titled "Countering Domestic Terrorism and Organized Political Violence". The EO followed a pattern by Trump and his administration's officials in that only violence against targets associated with the right-wing is acknowledged. While the EO mentions the assassination of Kirk and the ICE shooting, it leaves out the murder of Minnesota state legislator Melissa Hortman and her husband, the shooting of another state legislator and his wife, and the shooting at the Centers for Disease Control that left a local police officer dead. In MAGA world, the only political violence that exists targets the right-wing. The EO also makes the extraordinary claim that "This political violence is not a series of isolated incidents and does not emerge organically." This turns known facts on their head. All evidence released so far suggests that "isolated incidents" is exactly what the Kirk and ICE shootings were.

The EO goes on to paint a picture in which "anti-fascist" — the term from which Antifa is derived — forces have engaged in wide-scale and sophisticated indoctrination to provoke attacks against those "who hold traditional American views on family, religion, and morality". The document outlines a number of investigative actions to be taken against individuals and groups that recruit or radicalize persons for the purpose of "political violence, terrorism, or conspiracy against rights" or "the violent deprivation of any citizen’s rights." While a quick reading of the text may suggest that it is reasonable, consider that Antifa, despite not existing as an organization, has been designated as a "domestic terrorist organization." Therefore, almost any act taken by those alleged to be connected to Antifa can be considered terrorism. Moreover, almost anyone can be alleged to be involved with Antifa because — and this is the benefit of attacking a myth — all connections are imaginary. This opens the door for government investigations of almost anyone that Trump doesn't like.

The real danger of this EO is not what it says in the plain text. In that regard, like the Antifa EO, it is almost meaningless. The EO is aimed at "Domestic Terrorist Organizations", a classification that does not lawfully exist. It seeks to criminalize a host of lawful First Amendment activities. Legally, this EO does very little. The actual threat represented by the EO is how it can be used by a Trump administration that has only the most nebulous interest in actual law. Investigations can be launched into almost any left-leaning organization on the basis that it funds terrorism when, in reality, it does nothing more than support activities that are entirely within First Amendment bounds. Consider a recent tweet by White House Deputy Chief of Staff Stephen Miller. After California Governor Gavin Newsom described masked ICE agents grabbing people off the street and stuffing them into unmarked cars to be taken to undisclosed locations for possible deportation without due process as "authoritarian actions by an authoritarian government," Miller tweeted that "This language incites violence and terrorism." Therefore, according to the EO, Newsom can be investigated for doing nothing more than making a statement that is easily supported by the facts. Newsom probably doesn't care, and might even welcome such an investigation. But what about those without Newsom's stature and resources? Will others be intimidated from engaging in lawful speech?

The two Trump executive orders aimed at combating domestic terrorism can be read two ways. Factually, EOs cannot create law. Therefore, the term "Domestic Terrorist Organization" is meaningless. Trump may as well designate Antifa to be "space aliens." For that matter, Antifa is not an organization. Because much of what is included in the documents flows from that designation, it is also legally meaningless. The threat, however, is how the EOs will be implemented and how Trump opponents will react to them. The orders could easily result in significant intimidation. Trump has been succeeding in his authoritarian steps by gaining compliance without resistance, often in advance. This is a clear-cut case in which compliance should not be provided. Meaning can only be given to these EOs if individuals give them meaning by complying. Ignore them and they will be shown to be nothing more than weak handwaving.