Free Speech

What Would It Mean for President Trump to Declare Antifa a "Domestic Terrorist Organization"?

Not much as a legal matter, as best I can tell. [See UPDATE.]

|The Volokh Conspiracy |

A week ago, President Trump said:

It's not clear to me, though, what (if anything) this substantively means. The Secretary of State can designate foreign groups "Foreign Terrorist Organizations," which makes it a crime for people to give them various "material support or resources" (see, e.g., Holder v. Humanitarian Law Project (2010))—which includes giving them money and other tangible goods, giving them your services (by joining them and doing work under their control), giving them certain kinds of advice, and the like. But I don't know of any law that would similarly cover domestic groups, such as Antifa. (There are of course people in other countries that call themselves "Antifa," and doubtless there is some communication among American and foreign people who labeled themselves this way, but I can't see how that would be enough to trigger the statute, especially given the First Amendment.)

Now of course there is already a well-established legal category for domestic terrorist or otherwise criminal organization: conspiracies. If people are conspiring to burn or bomb or even just vandalize abortion clinics, or animal research facilities, or synagogues, or buildings that happen to be near demonstrations, or for that matter the property of a rival mafia family or street gang, that's of course a crime. And there are particular crimes defined as "domestic terrorism"—"activities that":

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended–

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion;  or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;  and

(C) occur primarily within the territorial jurisdiction of the United States.

When people conspire to commit such crimes, they may indeed be a sort of domestic terrorist organization (or, if you prefer, a conspiracy to commit domestic terrorism). Abstractly advocating or praising such behavior isn't a crime, and is indeed protected by the First Amendment. Indeed, joining an ideological group that has some unlawful ends is constitutionally protected unless it's done with the "specific intent of assisting in achieving the unlawful ends of the organization." But engaging in various kinds of violence is a crime—and is constitutionally unprotected—as is conspiring with others to do so (which is to say, generally speaking, deliberately agreeing to work with them in their criminal projects).

Still, there's no legal significance in labeling a particular conspiracy or set of conspiracies a "domestic terrorist organization," or in using that label for a political movement. Perhaps it might send a signal to federal investigators and prosecutors to look at the organization more closely—as they would generally be free to do, even as to ideological groups, when there's serious reason to think that those groups are actively planning criminal conduct. I certainly hope that the FBI and DoJ have closely investigated all sorts of violent ideological groups like that, and are continuing to do so for any other such groups that continue to be threats, whether they are white supremacists or radical leftists or ecoterrorists or violent anti-abortion groups. But, as best I can tell, all the government can do with regard to those domestic groups (again, unlike designated foreign terrorist organizations) is investigate them and prosecute their members for actual conspiracies to commit specific criminal acts.

UPDATE: Kevin Gerson, Director of the UCLA Law Library, notes that domestic terrorist organization status does matter in one context: 8 U.S.C. § 1182(a)(3)(B)(vi)(II), which provides that alien members of designated terrorist organizations—foreign or domestic—are not to be allowed into the U.S. So President Trump's planned designation might mean that alien members of domestic Antifa who are trying to come to the U.S. won't be allowed to enter, and may even be deported. I doubt that this would have much effect on Antifa, and I doubt that this is what most voters would expect from President Trump's statement, but there it is.

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  1. Consider that Antifa isn’t any one organized group – who would they exactly go after?

    1. The KKK and Neonazis etc exist even less as a coherent single organization than ANTIFA and are far smaller and less active. Doesn’t prevent constant proclamations that we need to go after them and that they are hiding behind every tree and rock.

      1. And how do you know that the KKK and Neonazis are smaller than Antifa? How many people are in Antifa. I know that some conservative sites are convinced that there are millions of Antifa and that Antifa is behind every bush (including the ones in their rural backyards), but it doesn’t mean any of it is true.

        1. Well they’re not burning down cities right now for one thing. And there’s a lot more ANTIFA activity online. Come to think of it I don’t recall seeing any largescale KKK/Neonazis activity anywhere near like we see out of ANTIFA since the 60s-70s except maybe in movies and hysterical documentaries. I guess the closest recent thing is the Tiki Torch march if you trust Prog reporting but even if you assume thats 100% KKK/Neonazi it certainly isn’t as big as some of the stuff we’re seeing now.

          Any way you slice it both orgs are basically defunct or FBI agents. Whats left of that activity mostly is limited to places like Stormfront which is even smaller than it was in the past.

          We don’t really have an extreme right pole of any significance offline or online anymore if you define the center as the zeitgeist of the general American population’s thought a decade or 2 ago.

          1. At this point the Klan exists only as some reenactors who are paid to show up occasionally at conservative rallies so they can be photographed.

            1. Those are not re-enactors. They are FBI informants.

          2. Antifa can’t be to blame for all riots and violence. Antifa wasn’t even around for the riots in the 1960s. There probably are a few Antifa members in the crowd, but it is quite a leap to then claim that everyone who engages in violence must by definition be part of Antifa. It’s like the left claiming that everyone in anti-lockdown protests was a Neo-Nazi.

            1. Oh okay, since you’re moving on to another point I’ll assume you realized its patently obvious KKK/Neonazis or whatever Bubba calls himself in the trailer park now are nowhere near the size or activity of present day antifa and mostly exist in the heads of leftists or as a boogeyman for the MSM.

            2. No, not everyone engaging in violence is part of Antifa.

              It’s a basic function of mob actions. As individuals, we are reluctant to initiate violence. However, once the mob starts to move, even people who wouldn’t otherwise commit acts of violence will go with the flow and join in.

              Some one has to throw the first brick, someone has to be the party starter.

              That’s what Antifa is there for. To turn what otherwise would be a relatively peaceful protest into a riot.

        2. Perhaps we should require that those people organizing these protests keep detailed records of each and every individual who attends the protests, and make that list available to the government.

          For contact tracing, for COVID-19, of course.

    2. The ones who are engaging in specific forms of criminal activity, as described by Prof. Volokh in this post.

    3. Antifa is designed to look like they’re not an organized group, but the idea that they aren’t an organized group is belied by the level of coordination they’ve demonstrated on multiple occasions.

      Just because the bottom layer of an organization consists of cells that get their direction through cutouts doesn’t mean you’re not looking at an organization.

      1. Antifa doesn’t exist, so it isn’t designed to look like anything, and doesn’t demonstrate any level of coordination beyond that of a group of people planning to go out to dinner. Someone texts someone else, “Hey, want to go out to dinner?” And the second guy says, “Sure. Let’s invite Jim.”

    4. “who would they exactly go after?”

      Well, for one thing, once Antifa is identified as a terrorist group, they could go after the people who mysteriously show up right away to bail the members out.

      1. Under what law?

        1. He said smugly….

    5. “Follow the money”

      – always good advice

    6. Neither is ISIS. You go after its funders, its leaders and its foot soldiers.

    7. They could go after a few key people at every university.

  2. It means that they’re another man’s freedom fighter, obvs.

  3. It’s just talk from POTUS. He has never just tossed out things before, so this must be real.

    1. Heh

  4. Only congress has the power to declare war. Isn’t declaring a foreign group a terrorist organization tantamount to a formal declaration of war? For example, is the “Islamic State” not a state?

    1. “Isn’t declaring a foreign group a terrorist organization tantamount to a formal declaration of war?”

      Only if said group is a nation/state.

      “For example, is the “Islamic State” not a state?”

      They have delusions of grandeur of uniting the entire Muslim world under the banner of one state (which they would run), but no at this time they are not a state.

      1. They are not a state because… they are not in the UN?

    2. Don’t forget the war on plaque. I think was declared by the head of the FDA.

  5. So, you say you don’t know of the relevant law?

    Try section 802 of the “Patriot” act.

    1. Brett Bellmore: Thanks, but isn’t that the section I quoted at length in the post (“And there are particular crimes defined as ‘domestic terrorism’ …”)? As I noted, that section punishes particular conduct — but it doesn’t turn on whether a group has been formally designated a “terrorist organization.”

      1. Yes, that IS part of what you quoted at length, which makes your remarks so strange.

        That section recognizes, explicitly, the existence of domestic terrorist organizations. While not all of the clauses applicable to foreign terrorist organizations also apply to domestic, quite a few of them do.

        1. Am I missing something here? The section defines the offense of domestic terrorism. That offense is a crime whether or not it’s committed by an organization labeled by the Executive Branch; conversely, other actions by organizations, whether labeled by the Executive Branch, aren’t crimes.

          It’s like a definition of the offense of “arson” — it may make various things arson, but it gives no legal effect to the President’s labeling something an “arsonous organization.”

          1. Would have responded to this earlier, but the comments section here was inaccessible for a couple days.

            The primary result of identifying Antifa as a terrorist organization would, I think, be some DOJ resources being dedicated to actually investigating the organization, rather than treating the criminal acts of members as incidental to their membership in it.

            A secondary result could be making life a bit perilous for people funding and aiding Antifa. You gave firearms training to Antifa members, you wouldn’t be training people who subsequently incidentally went on to commit terrorist acts. You’d be training people you knew to be members of a terrorist organization. Ditto for funding them. If (when!) those funds and training were deployed in a terrorist fashion, you’d be implicated, having involved yourself with a “terrorist organization” would show mens rea.

            But the main thing probably would be the DOJ ceasing to deliberately turn a blind eye to Antifa, the organization.

            1. Mens rea for what?

    2. Well why make us work. I looked it up and found this.

      The definition encompasses activities that are “dangerous to human life that are a violation of the criminal laws of the United States or of any State” and are intended to “intimidate or coerce a civilian population”, “influence the policy of a government by intimidation or coercion” or are undertaken “to affect the conduct of a government by mass destruction, assassination, or kidnapping” while in the jurisdiction of the United States.

      It sure does sound like protesters who break any law fit that definition. Do we really want to label those millions of people terrorists?

      1. I really doubt that the number of people meeting the criteria number in the millions. But if they did, yes. We’re not talking about jay walking here, “dangerous to human life”. If you don’t want to do the time, don’t do the crime.

  6. Agreed, Mr. V, domestic terrorism designation wouldn’t mean much w/o DoJ giving the stamp of approval. Given the CFC donations show overwhelmingly partisan DNC & anti-Trump support, and in view of agency behaviors, 1 would not be wrong to guess that such a designation might not occur. The agencies may view Pres T’s action as crossing into their territory, and take it personally -a pissing match. A good # of career fed types (bureacrats, career politicians, assorted strap-hanging cogs) seem to think they are somehow superior, from my work around them. They will view this potus as any other, he will be gone soon enough, and they, the ‘true government,’ will be able to get back to work.
    Additionally, as has been implied by Johannes, it’s difficult to gauge potus’ degree of interest given his tendency to run everything stream of consciousness.

    1. I guess it is a question of how much control Trump has gotten over agencies which nominally are supposed to be leaping to obey his orders. On the one hand, he IS gradually replacing personel. OTOH, as the election approaches, with the prospect of somebody else maybe being President, (A prospect the bureaucracy overestimated in 2016, and maybe now.) the “resistance” may feel emboldened, thinking that Trump won’t have time to do anything about their antics.

      I would guess that by now Barr has managed to assemble at least a few picked teams that can be counted on to do what they’re told, and not engage in sabotage along the way. But he’s also got plenty of things for them to do that the full DOJ would actively impede, so is going after Antifa important enough to use one of them?

    2. Hank Ferrous: What I’m asking is what the domestic terrorism designation would mean even if DoJ does give the stamp of approval.

      1. The FBI is supposed to have a nexus to crime in order to open investigations. Designating Antifa a terrorist organization would provide that.

  7. Trump can label antifa ‘domestic terrorists’ just like Southern Poverty Law Center can label groups ‘hate groups’ at random.
    It has no actual meaning, but like the force, it can influence the weak minded.

  8. In business, it is completely normal to threaten people with dire consequences completely independently of whether there is any basis for those consequences. Trump promised to make government more like business. Why shod he bring such tactics with him.

    Most people don’t know their legal rights and obligations. How many people are going to know that if Trump designates Antifa a terrorist organization, he doesn’t have any actual power to make any actual consequences happen?

    The entire value of nuclear capabilities is in getting people to do what you want without using them.

    Bluffs have precisely the same value.

  9. As I said around the time of the 9/11 attacks, the federal government has full power to make war on informal foreign organizations, and they don’t have to have written charters and corporate formalities, their soldiers don’t have to march in formation playing fife and drum bands.

    Letters of Marque and Reprisal cover the full modern gamut of informal war, just as post roads covers jet planes and the internet.

    But all this applies only to foreigners. There is no power whatsoever for government to make war on its citizens. It can suppress an insurrection. It can enforce criminal laws. But it can’t make war by fiat.

  10. What this is going to do is make it incredibly expensive, both politically and financially, for colleges to ignore the ANTIFA members they know they have on campus.

    Professor Volokh: what are the consequences of HARBORING a “Domestic Terrorist”, particularly if you are recipient of Federal Funding?

    Absent that, what would it mean politically? 55% of the public supported Trump bringing in ACTIVE DUTY TROOPS to quell the riots (which he didn’t do) and Joe Sixpack doesn’t support this foolishness.

    Trump not only plays three dimensional chess but he’s good at it — how would this affect everything else?

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