President Trump tweeted that the US will be designating Antifa as a terrorist organization. Does he have that power?

Question

President Donald Trump tweeted

"The United States of America will be designating ANTIFA as a Terrorist Organization."

Can he do that? Why or why not?

Answer 1

As mentioned elsewhere, in theory, Trump cannot do this. Among the various obstacles is the fact that antifa is a philosophy. It would be like labeling anti-Semitism or anti-racism or deontology a terrorist group. It almost lacks meaning. Another problem, as also mentioned in other answers, is that there is no definition of domestic terrorist groups in the US:

When it comes to ISIS and other international groups designated as terrorists, U.S. terrorism statutes make it a crime to provide them with "material support" -- such as money or even one's own person. That's how so many Americans who fled the United States to join ISIS in Syria or elsewhere were eventually charged and arrested by the FBI.

But no such "material support" statute exists for a U.S.-based group.

That said, there are a variety of things that people have claimed are explicitly prohibited by the law, and that have been carried out anyway. For instance, under almost any plain reading of the Constitution, the internment of Japanese-Americans without due process during World War II was illegal, but with presidential authority, and compliant courts, it happened anyway. Many people believed that Trump's ban on immigration from primarily majority-Muslim countries was unconstitutional, and it happened anyway. I doubted that Trump could suspend almost all immigration indefinitely, but it happened. Nor is this limited to the Trump administration. For instance, many Republicans complained that Obama's executive order offering a stay of deportation and a path to a work permit to young immigrants was not provided for by law: it happened anyway. Obama was also able to expand government surveillance programs and conduct drone strikes against American citizens (which Trump has continued) despite many people claiming that the law did not allow this.

The fact is that with the expansion of executive power, there is probably some fashion in which Trump can label the "antifa" ideology a terrorist group that will have an actual impact. Legal theory is frequently insufficient to predict actual policy. For instance, although there are not definitions of domestic terrorist groups, there is a definition of domestic terrorism in the US, as established by the Patriot Act:

(5) the term “domestic terrorism” means 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; and

Trump could potentially order the Department of Justice to consider any criminal case in which adherents of an "antifa" philosophy were involved to be considered terrorism under this law, justifying it by saying that antifa wants to influence the government by coercion, say. Even if it is untrue, it is possible he could get away with it.

Or, in a more unlikely scenario, he might simply create a new executive classification of some groups as domestic terrorist groups, going around Congress altogether. Such a policy could be undone relatively easily by a future president of a different ideological persuasion, but it's possible that he could just do it. After all, his primary goal here may be less legal than rhetorical. Trump may desire to appeal to "law and order" elements in his party by promising to crack down on what many of them see as dangerous radicals. To do this, Trump need not actually arrest any believers in antifa philosophies, but rather convince he supporters that he is taking strong action against the aforementioned.

Answer 2

Currently, there is no official designation for domestic terrorist groups. The Department of State and the Department of the Treasury can designate foreign groups as terrorist under certain procedural guidelines. The president cannot do this unilaterally, though I suppose he could pressure the Secretary of State to do so. But in this case there is no context in which a domestic group can be officially declared as a terrorist group.

Of course, nothing is likely to stop Trump from continually calling antifa a terrorist organization on Twitter or in his speeches, or acting as though that name-calling has some official significance. And while the House has recently introduced legislation creating a framework for a formal designation of domestic terrorism — H.R. 1931 — the idea itself has met resistance from both liberals and conservatives.

Answer 3

The biggest problem with designating Antifa as a terrorist organization is not whether or not President Trump has legal grounds to do that, but the simple fact that Antifa is not an organization at all. You cannot designate an organization as a terrorist organization if there is no organization to designate.

AntiFA is short for "Anti-Fascist Action" and it basically just means that you believe that actions should be taken against fascism.

Personally, I find the fact that President Trump wants to make taking action against fascism illegal both very telling and completely unsurprising.

Answer 4

Yes, with certain limitations

First to make clear that strictly legally US President could not designate certain groups, as terrorist organizations. But officials and functionaries appointed by him (and confirmed by Senate) could, and it is assumed that they would be under his influence. Therefore, for the sake of simplicity, we would take that administration moves according to President's wishes, which in Trump case may not be so due to effects of so called "deep state", professional bureaucrats and other elements with agendas of their own.

To designate Antifa as foreign terrorist group would be relatively easy. It would take a decision from Secretary of State (currently Mike Pompeo, person relatively loyal to Trump). As we can see from current list of FTO, beside usual Islamic and Jihadi groups, there are few leftist (communist and anarchist) groups on the list. Therefore, to designate Antifa as a foreign terror group would not be a precedent. Note that various organizations which style themselves anti-fascist and use violence against their opponents (anyone I don't like is a fascist) exist all over Europe and in some other continent. What repercussion would that have on US citizens ? Beside travel bans and arrests of foreigners, any US citizen caught communicating with these foreign groups, or even supporting them, could become a target for law enforcement. This is similar to anyone publicly supporting ideas of Islamic State (IS, ISIS, ISIL ...) suddenly becoming interesting to FBI.

What about domestic terror groups ? This is a bit more complicated. Definition of domestic terrorism is designed under 18 U.S.C. § 2331 and includes activities "to influence the policy of a government by intimidation or coercion" which could be pined to present actions of Antifa. This is further expanded in Patriot Act Title 8, which gives Attorney General free hands to investigate activities of certain groups accused of planning acts of terror as defined in the law. If Secretary of State were to designate Antifa as foreign terrorist organization, Attorney General would have even more motivation to investigate their activities on US soil. However, in any case, this activities would have to be physical, not just offensive speech which is protected by First Amendment.

Note that in any case, Antifa does not have to be well structured organization (with card carrying members, statute and rules, hierarchy etc ..) , because law does not require any of this. It is sufficient to have various like-minded individuals with relatively similar ideology, to designate them as a group.

Answer 5

While others have answered your specific question, I want to point out that creating this designation isn't Donald Trump's main goal.

He's much more interested in creating an unconscious association between Antifa and terrorism by prompting discussions like these. This is an age-old sales tactic and it's very effective, unfortunately.

See: https://en.wikipedia.org/wiki/Priming_(psychology) https://en.wikipedia.org/wiki/Implicit_stereotype

Answer 6

A few of the other answer (for example, this one and this one ) have mentioned that if Antifa were a foreign group, then it could be designated as a terrorist group. But under the assumption that it is a domestic group, there is no legal basis for such a designation by the US President.

However, it is simply not the case that Antifa is a US movement. They were active in Europe long before they were even known in the US. The "black bloc", as they are known for their attire of choice, has been protesting at WTO meetings for many years before most people in the US even knew who they were. In fact, when they made their 1st high-profile appearance in the US in organized WTO protests in Seattle in 1999, many in the media asked the question "Who were those masked anarchists in Seattle?"

They are an international movement. I won't call them an "organization" because I don't have any way of knowing who, if anyone, is behind the movement.

The Wikipedia entry on Antifa(Germany) does give some evidence for the international nature of the movement in the section on the "Contemporary Groups"

...Steffen Kailitz notes that "the difference between the autonomist scene and terrorist networks gradually lost importance from the 1990s" and that a number of antifa groups were involved in violent activities from the 1990s. In October 2016, antifa in Dresden campaigned on the occasion of the anniversary of the reunification of Germany on 3 October for "turning Unity celebrations into a disaster" to protest this display of new German nationalism whilst explicitly not ruling out the use of violence. Antifa protesters were involved during the 2017 G20 Hamburg summit confrontations.

So there is enough basis for considering Antifa an international movement. Can a movement be treated as a group? On the surface, the answer is probably "no." But it allows for investigation into the question of whether there are any covert funding or organizing entities which fuel the movement. This is a question which can be investigated by law enforcement.

If the law enforcement can find evidence that there are such behind-the-curtains organizers, then the fact that their organizing spreads across national borders would allow them to be designated as a terrorist organization.