The president doesn’t have the legal authority to follow through on his tweet.
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 . 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—thoughin 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 forU.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 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 wouldas 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 wouldIt 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
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