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National security experts said Trump does not have the authority to designate a domestic group as a domestic terrorist organization.
The Treasury and State departments designate people or entities as foreign terrorist organizations, but it’s unclear if that’s the course the administration would take for antifa.
Antifa also isn’t a single organization with official members or a leader. It’s an umbrella term for an ideology and loosely affiliated groups across the country that say they counter fascism.
President Donald Trump claims that antifa supporters are leading riots across the country as thousands of people march on the streets to protest the death of George Floyd.
Floyd, a 46-year-old black man, died after a white Minneapolis police officer pinned Floyd’s neck under his knee. Floyd pleaded that he couldn’t breathe. Protesters across the country for several days have chanted calls for justice for Floyd. Some people have looted stores and set police cars and other property on fire.
Trump and allies say that a collection of far-left, anti-fascist groups are anarchists and responsible for the destruction. "The United States of America will be designating ANTIFA as a Terrorist Organization," Trump tweeted May 31.
It’s not an established fact that antifa supporters are the ones — or only the ones — looting or destroying property. Other groups are also under suspicion. Minneapolis Mayor Jacob Frey said on May 30 that "largely peaceful protests" have turned to "outright looting and domestic terrorism in our region." He added: "We are now confronting white supremacists, members of organized crime, out of state instigators, and possibly even foreign actors to destroy and destabilize our city and our region."
PolitiFact decided to examine the legal grounds for Trump’s statement of designating antifa as a terrorist organization. National security experts said there is no legal process for designating domestic groups as terrorist organizations. Also, antifa isn’t an organization with an official leader or membership.
Trump’s statement "is somewhat of an empty threat," said Michael German, a fellow with the Brennan Center for Justice’s Liberty & National Security Program.
If the Trump administration sought a way to make that designation, it’s likely to be challenged in court, experts said. "He has previously issued executive orders that weren't likely to survive legal challenge, so the lack of authority for such a designation may not stop him," German said.
Antifa is a term used for a collection of far-left, anti-fascist groups that rally against white supremacy and other causes, at times resorting to violence. The antifa movement goes back decades, but regained attention after antifa groups counterprotested white nationalists in Charlottesville, Va., in August 2017.
Antifa is not an organization with an official membership, leader, or base for operations. So when Trump said he would designate antifa as a terrorist organization, it’s unclear who exactly his administration would be targeting or what kind of consequences that label would carry. The White House did not respond to our request for information.
The State Department and Treasury Department make designations to the Foreign Terrorist Organizations list, but there is no equivalent government list for domestic terrorist organizations.
When the government designates a person or group as a Foreign Terrorist Organization, its members are inadmissible to the United States, and their assets and money in the United States are frozen so they don’t have access to it.
"There is a process to designate international groups as foreign terrorist organizations, but Trump is clearly directing his ire toward local activists, not anyone involved in anti-fascist organizing abroad," German said. "Antifa isn’t organized in that fashion in the first place, as it has no leaders, assets, or infrastructure, so banning material support to foreign anti-fascist groups would have little legitimate anti-terrorism effect here or abroad."
Attorney General Bill Barr in a May 31 statement said, "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."
"Domestic terrorism" is defined in federal law, but the term itself does not exist as a federal crime. In domestic terrorism investigations, prosecutors end up charging suspects with offenses such as hate crimes, murder or weapons violations.
Federal law defines domestic terrorism as acts dangerous to human life that violate the criminal laws of the United States or of any state, and which appear to be intended to:
• intimidate or coerce a civilian population;
• influence the policy of a government by intimidation or coercion; or
• affect the conduct of a government by mass destruction, assassination, or kidnapping.
The FBI adds ideology into its definition for domestic terrorism: violent, criminal acts "to further ideological goals stemming from domestic influences, such as those of a political, religious, social, racial, or environmental nature."
Reporters on June 1 asked White House press secretary Kayleigh McEnany what legal authority Trump would use to designate antifa as a terrorist organization and how members of antifa would be identified.
McEnany did not directly answer the question.
Twitter, @realDonaldTrump tweet, May 31, 2020
Twitter, @MayorFrey tweet, May 30, 2020
Rev.com, Transcript of White House press briefing, June 1, 2020
Justice Department, Attorney General William P. Barr's Statement on Riots and Domestic Terrorism, May 31, 2020
Phone interview, Karen J. Greenberg, director of the Center on National Security at Fordham School of Law, June 1, 2020
Email and phone interview, Heather Williams, senior policy researcher, associate director of the Strategy, Policy, and Operations Program, Homeland Security Operational Analysis Center (HSOAC) FFRDC at RAND Corporation, June 1, 2020
Phone interview, Michael German, a fellow with the Brennan Center for Justice’s Liberty & National Security Program, June 1, 2020
Congressional Research Service, Legal Sidebar, Domestic Terrorism: Some considerations, Aug. 12, 2019
State.gov, Foreign Terrorist Organizations
FBI.gov, Terrorism definitions
Congressional Research Service, In Focus, Foreign Terrorist Organization, Updated Jan. 15, 2019
Cornell Law School, 18 U.S. Code § 2331. Definitions
ADL.org, Who are Antifa?
PolitiFact, In Context: President Donald Trump’s statement on ‘many sides’ in Charlottesville, Va., Aug. 14, 2017
PolitiFact, Terrorism in the United States: key facts, patterns and trends, Dec. 5, 2019