On Sunday afternoon, President Donald Trump tweeted that, “The United States of America will be designating ANTIFA as a Terrorist Organization.” The declaration, via social media, comes on the heels of Attorney General William Barr blaming the violence from the protests that have erupted across the country in response to the murder of George Floyd on “far-left extremist groups.”
In a Department of Justice press release from Sunday, Barr noted that “the violence instigated and carried out by ANTIFA and other similar groups in connection with the rioting is domestic terrorism and will be treated accordingly.” There was no mention of any of the far-right extremist groups that have sought to capitalize on the protests to advance their own violent agenda.
Antifa, or anti-fascists, is a loose collection of individuals and groups that engage in aggressive mobilization against far-right extremist movements, especially violent white supremacists. Within antifa there are also anarchists, a portion of whom descend on protests to engage in vandalism and violence, with the overall goal of destruction and destabilization.
Antifa is decentralized to the point of having no identifiable leadership, no specific funding streams, training camps, or strategy for recruitment. The movement’s entire raison d’être is its opposition to what its adherents consider fascists, typically defined as neo-Nazis and other racists.
This weekend was not the first time Trump has addressed antifa. In August 2019, following a rally in Portland, Oregon, where antifa members clashed with members of the far-right, including the neo-fascist Proud Boys, Trump tweeted, “Major consideration is being given to naming ANTIFA an ‘ORGANIZATION OF TERROR,” adding that “Portland is being watched very closely.” He made no mention of the actions of white nationalists and alt-right demonstrators.
While the president and attorney general may have political motivations for wanting to stigmatize a left-wing movement by tagging it with the terrorist label and thus seek to assign blame for the violence engulfing several U.S. major cities, it is unlikely that Trump can do so within existing legal authorities.
In the United States, there are two competent authorities for designating terrorist groups. First, the Department of State can designate groups as Foreign Terrorist Organizations pursuant to the Immigration and Nationality Act. It can also designate both groups and individuals as terrorists under Executive Order 13224. This order was established shortly after Sept. 11 as part of an effort to provide the State and Treasury departments enhanced capability to block terrorists from the U.S. formal financial system.
However, for the State Department to designate a group, it must document that the organization operates overseas, and that the group’s leaders, camps, and operations are based outside of the continental United States. Antifa, by virtue of its domestic presence and lack of any organizational cohesion, would be impossible for the State Department to designate.
Even if it could, it is unlikely that antifa, a movement of individuals and not a coherent group, would likely meet the first prong of the State Department’s legal criteria for designation. To designate an FTO, the State Department must satisfy three legal criteria. First, the entity must have characteristics of a group and be primarily based overseas. Second, the entity must engage in terrorist activity (every FTO on the State Department’s list has carried out an attack that has resulted in death). Third, the terrorist activity cited in the second prong must be a threat to U.S. national security interests.
Antifa would be unlikely to meet the second criteria, since there is no evidence that the organization has carried out a politically motivated attack resulting in death, even as the group is known to engage in destruction of property, menacing, intimidation, and other crimes, including crimes involving violence.
The Treasury Department can also sanction terrorists per Executive Order 13224. But it can only piggy-back on an already existing designation of a group, typically one that is already labeled by the State Department as a terrorist organization. Without an underlying State Department designation, the Treasury Department can’t act. And, while Treasury has designated a number of domestic-based charities as terrorist entities, those groups were linked to foreign organizations such as Hamas, the Tamil Tigers, Lebanese Hizballah, and al-Qaida.
So where does that leave the president in his desire to designate antifa as a terrorist group? The United States doesn’t have a domestic terrorism law—though several have been proposed in the wake of recent attacks by domestic extremists—and that also limits what the president can do against domestic based-entities. Even if antifa were an organization and not a loose-knit set of individuals who identify as anti-fascist, there is no underlying statute the president could use to sanction it. The only outlet would be for the president to create a new executive order that designated antifa as a domestic terrorist group.
Whether such an executive order could withstand legal scrutiny is an open question, but let’s presuppose he simply designates antifa without any underlying authority. The point of State and Treasury designations of foreign-based groups and individuals is to thwart their access to finance and to provide leverage for the Department of Justice to prosecute would-be material supporters. Using these same tools against U.S. persons via an executive order would have profound implications for civil liberties and First Amendment rights. U.S. citizens associated with the antifa movement, but with no links to international terrorism, could find their bank accounts frozen and subject to 20 years (a common stint for providing material support to a Foreign Terrorist Organization) of jail time for providing support. Antifa isn’t the first group Trump has proclaimed would be designated via media. In 2019, Trump said he would designate the Mexican drug cartels as terrorists. The president never followed through, however, implying that his suggestion to do so was based more on domestic politics and responding to his political base than on any desire to actually protect American citizens from violence. Last year, the Trump administration also publicly announced that it would designate the Muslim Brotherhood. That group, like the Mexican cartels, remains undesignated.
It is quite possible that the president will similarly fail to follow through on his threat to designate antifa as a terrorist organization, once his staff informs him of the lack of existing authorities, legal obstacles, and policy challenges associated with doing so. Trump did follow through on his controversial decision to designate Iran’s Islamic Revolutionary Guard Corps as a terrorist group, but the designation was not entirely unjustified as the IRGC trains other terrorists and militias beyond Iran’s borders.
If Trump were serious about designating domestic extremist groups as terrorist organizations, there are several groups that would be a much higher priority than antifa. For example, several white supremacist extremist groups have a presence in the United States, including the Atomwaffen Division, the Rise Above Movement, and the Base. The Atomwaffen Division has been linked to several murders already, and its members have been arrested while in possession of HMTD, a homemade explosive, along with other explosive precursors. Revolt Through Tradition, a group affiliated with the neo-Nazi Robert Rundo, claimed on Telegram that it was present in Atlanta during the riots at CNN headquarters this week.
As much as the president would like to make terrorism into a partisan issue, it isn’t one. Career professionals in federal law enforcement and the intelligence community—the front line against terrorism—should be agnostic to the ideology motivating groups and are foremost concerned with preventing violence. If, at some point, antifa coalesced into a coherent organization with a modicum of command and control that engaged in acts of political violence, and if legal authority were developed to address domestic threats, it might qualify. But so far, unlike several prominent white supremacist groups, this has yet to occur.
The sad irony surrounding the debate on whether to designate of antifa is that if it transpires, those subject to the resulting criminal charges could potentially face longer stays in jail than George Floyd’s murderer. Minnesota’s state sentencing guidelines for third-degree murder convictions is 12½ years, compared with 20 years for convicted terrorists. If that happens, it would be a miscarriage of justice.