Trump is targeting the First Amendment rights of all Americans

Using the Kirk murder to justify the creation of a domestic terrorist group label is the one step in squelching all opposition.

The Trump administration has used Charlie Kirk’s death as a false pretext to embark on a new campaign of intimidation, abusing the power of America’s federal law enforcement agencies to target civil society. Senior administration officials were quick to claim that Kirk’s assassination was tied to a broader network. They offered no evidence to support this supposed connection. But the Trump administration is threatening the First Amendment rights of non-governmental organizations (NGOs) and individuals.

Days after Kirk’s murder, White House adviser Stephen Miller declared that a “vast domestic terror movement” exists on U.S. soil. Miller vowed “to uproot and dismantle these ‘terrorist’ networks,” saying the Trump administration would unleash the power of the federal government “to identify, disrupt, dismantle, and destroy these networks.” Miller’s words were no accident. He echoed the rhetoric of the post-9/11 era, when the U.S. government reoriented to combat foreign terrorist organizations. The Trump administration is now reconfiguring federal law enforcement agencies— with civil society, including nonprofits and community organizations, as its target.

Let us be clear: The administration’s attack on civil society is doomed to fail. Its actions have created and will create clear First Amendment challenges that will be litigated and defeated in a court of law. But all affected parties should understand their plan of attack.

In his first term, President Donald Trump declared that he would designate antifa a domestic terrorist organization but did not follow through. There are at least two reasons why. First, the FBI concluded that antifa is not a singular, hierarchical organization but instead a loosely knit, decentralized ideological movement. Second, and more important, there is no legal basis for declaring any domestic group a “designated terrorist organization.” Nevertheless, a Sept. 22 executive order designated “Antifa” a “domestic terrorist organization.”

The White House turned antifa into a national bogeyman, blaming it for a host of criminal activities, whether its adherents were involved or not. But antifa is not the Trump team’s true target. Trump’s war on terror is not aimed at killing or arresting terrorists; it’s designed to kill free speech. Alarmingly, with no basis, the Trump administration has now taken additional steps to designate domestic groups as terrorist organizations. Under a new national security memorandum, the administration has created a process that threatens the First Amendment rights of American groups and individuals.

The FBI says antifa is an ideology, not an organization

The FBI has repeatedly made it clear that some antifa adherents pose a violent threat. And antifa followers have been convicted under existing laws.

In testimony before Congress in November 2017, then-FBI Director Christopher Wray stated the bureau was conducting “a number of what we would call anarchist extremist investigations, where we have properly predicated subjects [people] who are motivated to commit violent criminal activity on kind of an antifa ideology.” At a June 2020 press conference, Wray stated that “anarchists like antifa and other agitators” were “exploiting” the mostly peaceful protests held after the murder of George Floyd “to pursue violent, extremist agendas.” Wray said the FBI was “committed to identifying, investigating, and stopping individuals who are inciting violence and engaging in criminal activity.”

While investigating the threat of violence from some individual antifa adherents, the FBI concluded that there was no true mother organization directing activities. Wray testified in September 2020 concerning antifa: “It’s not a group or an organization. It’s a movement or an ideology.”

Thus far, the Trump regime has failed to produce any evidence contradicting the FBI’s conclusion that antifa “is not a group or an organization.” A White House “fact sheet” fails to identify any antifa leaders, let alone a hierarchy or chain of command. It does not identify any common organizational elements, such as sources of funding, training infrastructure for violent extremists, or a propaganda hub.

The White House points to four examples of political violence that it attributes to antifa, but even here it fails to make its case. For example, the fact sheet reads: “ICE officers are now facing a 1000% increase in assaults against them.” But no data or other evidence is offered to show how antifa is responsible for a significant share of this alleged increase in assaults. The White House points to a handful of other incidents attributed to antifa adherents but again fails to connect the dots to an actual organization.

There is no legal basis for designating antifa, or any other group, as a “domestic terrorist organization”

Even if the Trump administration could show that a string of attacks is attributable to a single organization, it still cannot unilaterally designate antifa as a “domestic terrorist organization” under the law. Though the executive branch has legal authority to designate foreign groups as terrorist organizations, that authority does not extend to domestic entities. In fact, Trump’s EO designating antifa does not cite a single criminal statute or other legal authority.

This is unsurprising. Congress has not passed a domestic terrorism statute, so there is no law for the administration to cite. Some background is in order.

The State Department designates foreign terrorist organizations (FTOs) under section 219 of the Immigration and Nationality Act. In the aftermath of the Sept. 11, 2001, terrorist attacks, President George W. Bush signed Executive Order 13224 creating a list of specially designated global terrorists (SDGTs). EO 13224 derives its authority from several statutes creating new tools for the executive branch to cut off foreign terrorist funding. However, all the entities and individuals designated as FTOs and SDGTs are foreign—not domestic.

Executive branch agencies—including the FBI, the Department of Justice, and Homeland Security—have long recognized this clear dividing line. Although the federal government relies on multiple statutory definitions of domestic terrorism, these definitions have not been—and can not be—used to designate domestic groups as terrorist organizations.

Unlike with FTO designations, there is no statutory basis designating groups in the domestic context. As explained by the Congressional Research Service: “While [domestic terrorism] is defined in federal statute, the term domestic terrorist is not used to officially label any group (as it is with foreign terrorist organizations).”

There is also no statutory basis for charging individuals as “domestic terrorists.” According to CRS’s summary of the law: “While an individual may commit crimes that are widely considered to be acts of [domestic terrorism], they cannot be charged at the federal level with committing an act of [domestic terrorism] because there is no federal criminal provision expressly prohibiting domestic terrorism.” (Emphasis in original.)

Therefore, the U.S. government has not charged even the most notorious domestic terrorists in American history—such as Timothy McVeigh, who was convicted of blowing up the Alfred P. Murrah Building in Oklahoma City, killing 168 people, including 19 children—with domestic terrorism per se. Instead, prosecutors relied on existing criminal statutes. The same is true in other domestic terrorism cases. As the FBI and DHS have explained, a “litany of federal and state charges are used to charge [domestic terrorism] subjects for applicable criminal violations.”

McVeigh’s terrorism was far deadlier than any attack allegedly carried out by an antifa adherent thus far. And there is no legitimate reason why the Trump administration could not prosecute antifa followers under existing criminal laws.

While working to counter the threat of domestic terrorism, federal agencies have been careful not to brand organizations as such out of concern for violating Americans’ First Amendment rights. In fact, the FBI has not designated any group as a “domestic terrorist organization.”

The CRS explained the FBI’s rationale: “Doing so may infringe on First Amendment-protected free speech—belonging to an ideological group in and of itself is not a crime in the United States.” Indeed, the FBI emphasizes that it investigates violence and other criminal acts—not ideology.

Trump’s National Security Presidential Memorandum (NSPM-7) has no basis in law

Despite these longstanding constitutional concerns, the Trump administration is pressing ahead with plans to designate domestic groups as terrorist organizations.

On Sept. 25, the Trump White House issued National Security Presidential Memorandum-7, “Countering Domestic Terrorism and Organized Political Violence.” NSPM-7 opens the door for groups to be labeled as “domestic terrorist organizations.” Unlike the EO, NSPM-7 cites a statute (18 U.S.C. 2331(5)) as its purported legal basis. But this is a thin veneer over an otherwise lawless directive.

Under NSPM-7’s guidance, the attorney general “may recommend that any group or entity whose members are engaged in activities meeting the definition of ‘domestic terrorism’ in 18 U.S.C. 2331(5) merits designation as a ‘domestic terrorist organization.’” The attorney general shall then “submit a list of any such groups or entities to the President through the Assistant to the President and Homeland Security Advisor.”

The FBI has long relied on 18 U.S.C. 2331(5) solely for defining terrorism. Though other criminal statutes rely on 18 U.S.C. 2331(5), it does not by itself impose any criminal or civil sanctions or penalties. Therefore, prosecutors do not use this statute to charge individuals. As the FBI has made clear, 18 U.S.C. 2331(5) “is a definitional statute, not a charging statute.” Most important, the statute has not been used for designating domestic groups as terrorist organizations.

Therefore, as is the case with Trump’s EO targeting “Antifa,” NSPM-7 does not cite any legal basis for designating a domestic group as a terrorist organization.

NSPM-7 does cite several other existing criminal statutes, stating that federal law enforcement officials “should prioritize crimes” ranging from assaulting federal officers to money laundering to “funding of terrorist acts or otherwise facilitating terrorism,” among other specific crimes. The FBI already investigates such criminal acts. It does not need NSPM-7 to do so.

Trump’s national security memo threatens Americans’ First Amendment rights

NSPM-7 advances a politicized narrative, claiming that a “new law enforcement strategy” is needed to investigate “all participants in these criminal and terroristic conspiracies—including the organized structures, networks, entities, organizations, funding sources, and predicate actions behind them.”

This so-called “law enforcement strategy” is a roadmap for creating fear and quashing free speech. It is important to compare NSPM-7’s guidance to the FBI’s and DHS’s longstanding policy.

Here is the standing investigative policy of America’s law enforcement agencies, as set forth in the FBI’s and DHS’s June 2023 strategic intelligence assessment on domestic terrorism, as submitted to Congress:

The FBI and DHS use the term “domestic violent extremism” to refer to [domestic terrorism] threats. The word “violent” is important because 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. The FBI and DHS do not investigate, collect, or maintain information on US persons solely for the purpose of monitoring activities protected by the First Amendment. Under FBI policy and federal law, no investigative activity may be based solely on activity protected by the First Amendment, or the apparent or actual race, ethnicity, national origin, religion, gender, sexual orientation, or gender identity of an individual or group.

NSPM-7 does not reference the First Amendment. Nor does it show any concern for the “mere advocacy of political or social positions.” To the contrary, the White House states, without citing any evidence, that there “are common recurrent motivations and indicia uniting” a “pattern of violent and terroristic activities under the umbrella of self-described ‘anti-fascism.’” NSPM-7 reads:

These movements portray foundational American principles (e.g., support for law enforcement and border control) as “fascist” to justify and encourage acts of violent revolution. This “anti-fascist” lie has become the organizing rallying cry used by domestic terrorists to wage a violent assault against democratic institutions, constitutional rights, and fundamental American liberties. Common threads animating this violent conduct include anti-Americanism, anti-capitalism, and anti-Christianity; support for the overthrow of the United States Government; extremism on migration, race, and gender; and hostility towards those who hold traditional American views on family, religion, and morality.

The examples cited above could easily be construed to justify investigations into any group critical of the Trump administration’s policies, including its nationwide efforts to detain migrants—a campaign that has frequently denied people their due process rights. Any person who criticizes conservative social values could be investigated, as the White House has seemingly declared the beliefs of many Americans to be extremist.

Under this new investigative framework, NSPM-7 directs agencies and departments across the government to take sweeping actions. The National Joint Terrorism Task Force and its local offices around the country, the attorney general and DOJ, the secretaries of Treasury and Homeland Security, and the Internal Revenue Service commissioner are among those directed to take new actions.

The nation’s JTTFs are ordered “to investigate and disrupt networks, entities, and organizations that foment political violence so that law enforcement can intervene in criminal conspiracies before they result in violent political acts.” NSPM-7 is not limited to actual “criminal conspiracies,” as defined by the law. Instead, it takes an expansive approach that targets speech and political dissent. It imagines organized “campaigns” that “justify murder or other violent action” against “specific targets” through “a variety of fora, including anonymous chat forums, in-person meetings, social media, and even educational institutions”—all of which could be investigated.

The threat to tax-exempt, nongovernmental organizations is acute. The IRS is directed to “to ensure that no tax-exempt entities are directly or indirectly financing political violence or domestic terrorism.” And the JTTFs are directed to investigate “institutional and individual funders,” as well as the “officers and employees of organizations” responsible for actions deemed threatening. Given NSPM-7’s broad definition of extremist indicia, any organization, even entirely peaceful ones, could find themself in the government’s investigative crosshairs.

Funding to these groups might also be investigated, allegedly to “identify and disrupt financial records that fund domestic terrorism and political violence.” The secretary of the Treasury is directed to “provide guidance to financial institutions to file Suspicious Activity Reports to investigate indicia of illicit funding streams to ensure such activity is rooted out at the source.”

NSPM-7 also contains a broad definition of terrorism—so broad that it even includes non-violent acts. Trespassing, doxing campaigns, looting, and civil disorder are included as examples of “domestic terrorism.”

Trump’s true target is civil society

NSPM-7 shows that Trump is reconfiguring the federal government to go after civil society, including organizations that his administration deems to be “anti-American.” Within days of Kirk’s death, Vice President JD Vance vowed: “We’re going to go after the NGO network that foments, facilitates, and engages in violence.” NSPM-7 is the administration’s gameplan for doing so – even though it has failed to connect any NGO to Kirk’s assassination or any other recent act of political violence.

Antifa is not the target. The civil society organizations that provide services in our communities and stand up for democracy are. Authoritarian rulers fear their own people above all else.

Tom Joscelyn is a senior fellow at Just Security. Norm Eisen is the publisher of The Contrarian. Susan Corke is the executive director of Democracy Defenders Action and Democracy Defenders Fund.

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