Trump to label "left-wing" groups as domestic terrorist organizations, a designation with no significance in law

An investigation of “campaigns” by groups seeking “radicalization” could target an enormous range of everyday activity, despite the First Amendment. Here's how that works in the law.

The Trump Administration recently issued several orders that seek to engage federal law enforcement agencies in suppressing what it describes as a broad movement supporting domestic political violence. The orders attempt to apply definitions and legal charges typically reserved for international terrorism cases to what it sees as domestic terrorist activities in ways that greatly stretch federal law and policy over the last several decades. Civil liberties experts worry that these new orders could form the basis of a broad crackdown of left-wing political activism and political opposition to the Trump Administration.

“NSPM 7” creates vague categories for political violence (but not right-wing political violence)

In late September, the Trump Administration issued a new National Security Presidential Memorandum (NSPM 7), a type of document that typically aligns policy between national security and federal law enforcement agencies and aren’t always immediately made public. NSPM 7 directs the national Joint Terrorism Task Force (JTTF), created after the September 11, 2001 attacks, to focus investigations into political violence, domestic terrorism, and support for terrorist activity by those holding a wide and vague set of ideals. The broad sets of ideas listed include “anti-Americanism, anti-capitalism, and anti-Christianity,” and “hostility towards those who hold traditional American views on family, religion, and morality.” It makes no mention, however, of right-wing or white-supremacist violence, which independent and government analyses blame for between 75% and 80% of domestic terror deaths since 2001.

The White House has taken specific aim at “antifa,” an umbrella term for antifascist activism that is not actually an organization or ideological movement. Activists self-identifying as “antifa” were active in confronting pro-Trump and white supremacist protestors during his first term, notably during the “Unite the Right” attack on Charlottesville in 2017. Shortly before issuing NSPM 7, President Trump issued an Executive Order declaring “Antifa” to be a “domestic terrorist organization”. NSPM 7 further grants the Attorney General the ability to recommend that other groups engaging in activities that fit the definition of domestic terrorism in the U.S. Code be designated a “domestic terrorist organization,” too. There’s just one complication: no law defines a “domestic terrorist organization,” so the designation has no significance.

White House Deputy Chief of Staff Stephen Miller was the main driver behind developing the new security memo in the weeks after the murder of Trump political ally Charlie Kirk. Miller described the directive as part of an “all-of-government effort to dismantle left-wing terrorism, to dismantle antifa, to dismantle the organizations that have been carrying out these acts of political violence and terrorism.”

Extremism is not against the law — crimes are against the law

Miller’s all out effort, however, has no standing in law nor the Constitution. Although the USA PATRIOT Act defines “domestic terrorism” as “activities involving acts dangerous to human life” that appear to have the intention of affecting public opinion or changing government policy or conduct, there is no specific provision outlawing domestic terrorism. The FBI and DHS do not initiate what they call investigations of “domestic violent extremism” until a credible threat of actual violent actions emerges because, as the FBI and DHS wrote jointly in 2023, “the mere advocacy of political or social positions, political activism, use of strong rhetoric, or generalized philosophic embrace of violent tactics does not constitute violent extremism and is constitutionally protected” by the First Amendment.

The memo elides those protections, however, by calling for the investigation of “campaigns” by groups seeking “radicalization” of audiences that the Administration, without evidence, claims drives violent incidents. Civil Libertarians warn that the broad categorizations of ideas connected to “radicalization” could make mainstream civic organizations like immigration support groups, labor unions, and racial justice campaigns a target. “Campaigns,” moreover, could include social media and online group discussions, which may be monitored by federal agents.

Grafting international terrorism law onto domestic law enforcement

Many criminal law concepts in the memo come from laws dealing with international terrorism. Because foreign terrorist organizations have no constitutional protections, federal law allows for the State Department to declare foreign groups to be terrorist organizations – as the Trump Administration has with several drug cartels in a loose application of law. Federal law also criminalizes material or financial support for international terrorist groups’ efforts to commit violence, even if the actions themselves do not constitute a violent act, like translating the writings of Islamic extremist groups.

If the standards of providing material support for international terrorism were to be grafted onto what the memo defines as domestic terrorism, an enormous range of everyday activity could be criminalized. Allowing someone accused of being a member of Antifa (even though one can’t be a member of an organization which does not exist) to stay in one’s home or share a meal would constitute material support, as would printing materials or contributing money.

The memo exploits some ambiguity in the criminal code. Through the 2001 PATRIOT Act, 18 U.S.C § 2332b(g)(5)(B) lists 51 “federal crimes of terrorism,” that may apply to domestic terrorist situations. Most of these offenses, however, are very specific, like hijacking an airplane or using a weapon of mass destruction – not, for instance, a mass shooting or driving a car into a crowd that may also have terroristic intent. Prosecutors could apply other sections of the criminal code related to the destruction of federal property and the use of bombs. Congress did not expressly authorize, however, federal prosecutors to apply such charges to Americans committing crimes against other Americans and whether Congress should codify specific domestic terrorism law is up for debate.

It’s already started

Federal prosecutors already have started to implement the new policies. Last month, two men were indicted in federal court for domestic terrorism-related charges for participating in a protest at an Immigration and Customs and Enforcement installation that turned violent in north Texas. Prosecutors charged them with “providing material support” to terrorists, under 18 U.S.C. § 2339A for attempting to seize weapons from the ICE facility in Alvarado for use by the Antifa “cell” the government argues to which they belong. (The indictments include no evidence that cell actually exists.) The men also were charged with attempted murder of an Alvarado police officer responding to the incident.

Existing terrorism law was rarely used because crime is already illegal

Although most terrorism-related federal charges have been brought against defendants since 9/11 under this section, only a handful involved domestic crimes. Furthermore, these previous cases involved planning mass violence or arson attacks.

In addition to criminal charges, prosecutors also may seek longer prison sentences for domestic terrorists. In the wake of the 1995 Oklahoma City bombing, Congress directed the U.S. Sentencing Commission to add stiffer penalties for crimes committed with “terroristic intent,” defined as the “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” But prosecutors rarely do so. As mentioned above, the First Amendment protects Americans’ political speech and assembly rights essentially to the point of violence being committed. Convincing judges that specific actions meet this broad standard, especially the planning or support of the crimes of others or plots that are abandoned, is difficult for prosecutors.

Notably, prosecutors chose not to charge defendants in cases related to the January 6, 2021 insurrection with domestic terrorism because enhanced sentences risked plea deals and penalties were inconsistently applied. Assaulting a federal officer is not among the crimes defined as “terrorism,” but “depredation” of federal property – like breaking a window in the Capitol – is. Applying “terroristic intent” too broadly also risks political backlash from those closer ideologically to defendants, as was evident with the embrace of January 6 defendants by Republicans in Congress.

Other avenues, like federal hate crime law, offer better prosecutorial avenues for demonstrating intent that lead to enhanced sentences, as in the case of lone actors like white supremacist mass shooter Dylann Roof.

If the courts accept the legal reasoning of NSPM 7, people providing any kind of aid to a disfavored group declared a “domestic terrorist organization” by administration fiat would face the stiffer sentencing guidelines laid down in 1995. Charities and philanthropies supporting disfavored groups could have their assets frozen and staff jailed. Organizations working in coalition with such groups also would face prosecution.