The Situation: The Nonsense and the Menace

The Situation on Thursday offered brief thoughts on the indictment of James Comey. 

Today let’s indulge in some weekend reading of executive orders.

To be precise, we’re going to be reading one executive order, entitled “Designating Antifa as a Domestic Terrorist Organization” and a White House memo entitled, “NATIONAL SECURITY PRESIDENTIAL MEMORANDUM/NSPM-7,” whose subject is “Countering Domestic Terrorism and Organized Political Violence”—two presidential orders that have emerged in the weeks since the Charlie Kirk assassination.

The two orders are a weird mix of nonsense and menace. 

They are nonsense because all of one of the documents and most of the other consists of factual and legal gibberish. At the same time, they are menacing because factual and legal nonsense nonetheless is routinely being implemented as the basis for changing the reality in which Americans live. 

In a world in which the president can declare that immigration from Venezuela is a “predatory incursion” and deport people summarily on that basis, in which he can use the same theory to blow up civilian boats in the Caribbean and kill the people in them, in which he can file indictments against political enemies just because he hates them, and in which he can simply refuse to implement inconvenient acts of Congress like appropriations and the TikTok ban, one can’t be too certain that nonsensical words like the ones in these documents can’t be made flesh too by force of presidential will and the flaccid response of others to that will. 

So let’s take a look at what’s in these two documents, and spend a little time thinking about what they do, what they can’t do, and what they’ll likely be used to do. Most important, let’s consider what they’re for.

The first document, the executive order, is simpler than the other. 

Dated Sept. 22, its problems begin with the first and last words of its headline: “designating” and “organization.” Antifa is not really an organization. It’s just a bunch of people and groups doing a bunch of different things, some of them constitutionally protected and laudable and some of them violent and criminal. It has no central leadership or organizational structure. It’s also not one group. So designating it as anything is a little bit like designating, say, white supremacy, leftism, of Christianity as an organization. It’s a category error. 

Even if it were not, the president just doesn’t have the authority to designate domestic terrorist organizations—or, to be more precise, he has no more or no less authority in this regard than you or I do. I have the authority to write a column or a press release calling Antifa or the Proud Boys a domestic terrorist organization. And Trump can do the same and call it an executive order. Both have the same legal effect: None. Note that the order cites exactly zero statutory authority for the president to make this designation a domestic terrorist group.

This stands in sharp contrast to the president’s power (actually assigned to the secretary of state) to designate foreign terrorist organizations. When the secretary of state designates a foreign terrorist group, it becomes a crime to provide that group with “material support,” which is defined quite broadly and sweeps wider than assistance that would otherwise be, in and of itself, criminal. In other words, a foreign terrorist organization designation is not just a press release. It has genuine, and quite serious, consequences both for the groups in question for those who interact with them.

Because the designation here carries no legal effect, the operative language of the order has to go on actually to do something. 

It’s pretty weak tea on its face:

All relevant executive departments and agencies shall utilize all applicable authorities to investigate, disrupt, and dismantle any and all illegal operations—especially those involving terrorist actions—conducted by Antifa or any person claiming to act on behalf of Antifa, or for which Antifa or any person claiming to act on behalf of Antifa provided material support, including necessary investigatory and prosecutorial actions against those who fund such operations. 

Boiling this down to simple English, the order directs executive branch agencies to investigate any illegal Antifa activities or illegal activities by material supporters of Antifa. It doesn’t make any previously legal activities illegal (nor could it), and it doesn’t give the executive branch any authority it didn’t already have with respect to Antifa or those who provide support to anti-fascist organizing.

What it does, however, is provide direction. 

It says that of all the groups and tendencies and loose affiliations that engage in political violence, federal resources should go to investigating and disrupting this one. It does not say why. It does not argue that people who organize under the banner of antifascism are more violent or dangerous or numerous than, say, the folks who stormed the Capitol in the president’s name or the many other groups that sometimes cross legal lines. But it does not need to. The reason is obvious: Antifa is understood to be a creature of the left. 

The true significance of this executive order is thus not that it authorizes any action that wasn’t already authorized or criminalizes conduct that was previously legal. Its significance, rather, is that it creates an investigative priority not around any rational assessment of a degree of threat, the type of crime, or the prevalence of that crime. It creates an investigative priority, rather, around the identity and ideology of the supposed perpetrators—which is to say people whom the president doesn’t like and who don’t like him. That’s the menacing part.

That it does this most on the basis of factual nonsense makes it worse—because power is always more menacing when it’s deployed on the basis of a lie. 

This brings me to NSPM-7, which is a somewhat more complicated animal—and a much more dangerous one. Like the Antifa order, it starts by reciting a lot of nonsense about a grand left conspiracy of funders and activists and criminals who are supporting domestic terrorism:

This political violence is not a series of isolated incidents and does not emerge organically. Instead, it is a culmination of sophisticated, organized campaigns of targeted intimidation, radicalization, threats, and violence designed to silence opposing speech, limit political activity, change or direct policy outcomes, and prevent the functioning of a democratic society.  A new law enforcement strategy that investigates all participants in these criminal and terroristic conspiracies—including the organized structures, networks, entities, organizations, funding sources, and predicate actions behind them—is required. 

Also like the Antifa order, the document mostly translates this nonsense into directives to the government to focus its existing authorities on “all participants in these criminal and terroristic conspiracies—including the organized structures, networks, entities, organizations, funding sources, and predicate actions behind them.”

What does that mean? It means directing the National Joint Terrorism Task Forces to “coordinate and supervise a comprehensive national strategy to investigate, prosecute, and disrupt entities and individuals engaged in acts of political violence and intimidation designed to suppress lawful political activity or obstruct the rule of law.”

While this specific language is politically neutral, and applies as much to Proud Boys as to violent anti-ICE protesters, the context in which it appears is most emphatically not. The prefatory language in the document is all about attacks on conservatives and people implementing Trump’s policies. It says not a word about attacks on others or attacks by Trump supporters. 

And like the Antifa order, this one singles out anti-fascist organizing as a particular problem. 

So again, the clear direction to law enforcement is to focus domestic counterterrorism resources on political violence of the left and of people who oppose the administration and its policies, rather than on political violence generally or political violence that most threatens American life. 

This document, however, goes an important step further than the Antifa order. Some of the specific tactics it directs the JTTFs to employ are unobjectionable—like investigating crimes. Some, however, are authorizations for gross civil liberties abuses. Consider, for example, these specific directions for subjects of investigations:

(i)   institutional and individual funders, and officers and employees of organizations, that are responsible for, sponsor, or otherwise aid and abet the principal actors engaging in the criminal conduct described in subsections (a) and (b) of this section; and

(ii)  non-governmental organizations and American citizens residing abroad or with close ties to foreign governments, agents, citizens, foundations, or influence networks engaged in violations of the Foreign Agents Registration Act (22 U.S.C. 611 et seq.) or money laundering by funding, creating, or supporting entities that engage in activities that support or encourage domestic terrorism.

In other words, not merely is the document instructing law enforcement to go after political violence of the left and its “supporters,” it is also demanding wide-ranging fishing expeditions against people and organizations who may have done nothing illegal but who may have funded those who later did so or maybe only “supported” what the administration defines as domestic terrorism.

The rest of the document contains various demands that these investigations receive high priority and makes resources available to them. It also specifically demands a focus on funders even as political violence investigations progress at the ground level: 

All Federal law enforcement agencies with investigative authority shall question and interrogate, within all lawful authorities, individuals engaged in political violence or lawlessness regarding the entity or individual organizing such actions and any related financial sponsorship of those actions prior to adjudication or initiation of a plea agreement.

The purpose here is naked: It is to turn federal enforcement away from political violence of the right and the Trumpist movement and to spark investigations instead of major grant-making organizations of the left and center on the basis of the lie that they are actually behind political violence in the United States. 

The factual premise is, as I say, nonsense. Focusing investigative attention on grant-making, which is presumptively First Amendment-protected activity, without any real basis for suspicion that people are knowing or intentionally funding violence is a grotesque abuse of law enforcement power. 

Some of this abuse will affect institutions with the money and power to defend their rights. But as with the law firms and the universities, it will tie up resources and time and energy, and it will have a chilling effect on smaller organizations that don’t have the clout to defend themselves. And some activist organizations will be destroyed merely by the pressure of investigation.

And of course, some organizations will cave—because that always seems to happen these days too. 

The Situation continues tomorrow.