Background
Yesterday, President Trump signed a Presidential Memorandum titled “Countering Domestic Terrorism and Organized Political Violence” (“Memorandum”). The Memorandum cites recent acts of political violence, such as the murder of Charlie Kirk, as justification for the creation of a “national strategy to investigate and disrupt networks, entities, and organizations that foment political violence.”
While it does not identify any specific organization by name, the subtext is clear: the White House is targeting individuals and organizations on the ideological left, claiming they endorse “anti-Christianity,” “extremism on migration, race, and gender,” and “hostility towards those who hold traditional American views on family, religion, and morality” which has “created a movement that embraces and elevates violence to achieve policy outcomes.”
In short, the Memorandum calls upon multiple federal agencies to investigate, prosecute, or otherwise focus their enforcement efforts on organizations that are ideologically opposed to the administration’s actions and policies, based on a pretext of preventing a vague category of activity they label as “domestic terrorism.” Along with an Executive Order issued earlier this week entitled “Designating Antifa as a Domestic Terrorist Organization,” the Memorandum is nothing more than a thinly veiled attack on the First Amendment and core American freedoms, issued under the guise of preventing political violence.
Memorandum
The Memorandum’s purported goal is to “disband and uproot networks, entities, and organizations that promote organized violence, violent intimidation, conspiracies against rights, and other efforts to disrupt the functioning of a democratic society,” and it takes the following actions in furtherance of this stated goal.
First, it directs the FBI-led National Joint Terrorism Task Force and its local affiliates, with widespread mandatory coordination with other federal agencies, to oversee a “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.” This strategy must include:
- Investigating “crimes relat[ed] to acts of recruiting or radicalizing” individuals to engage in political violence, acts of terrorism, or the deprivation of rights guaranteed by law.
- Investigating “institutional and individual funders,” including an organization’s officers and employees, “that are responsible for, sponsor, or otherwise aid and abet” those committing acts of political violence, terrorism, or otherwise “obstruct[ing] the rule of law.”
- Investigating NGOs and American citizens residing abroad or who have “close ties to foreign governments, agents, citizens, foundations, or influence networks” that are engaged in violations of the Foreign Agents Registration Act or money laundering by “funding, creating, or supporting entities that engage in activities that support or encourage domestic terrorism.”
Second, the Memorandum orders the Attorney General to:
- Direct the Department of Justice to prosecute all federal crimes “related to” the above investigations, “to the maximum extent permissible by law.”
- Create “specific guidance that ensures domestic terrorism priorities include politically motivated terrorist acts such as organized doxing campaigns, swatting, rioting, looting, trespass, assault, destruction of property, threats of violence, and civil disorder,” and identify “any behaviors, fact patterns, recurrent motivations, or other indicia common to organizations and entities that coordinate these acts.”
- Along with the Secretary of Homeland Security, designate “domestic terrorism” as a national priority area.
- Recommend that any group or entity whose members are engaged in “domestic terrorism” as defined in 18 U.S.C. 2331(5) be designated as a “domestic terrorist organization” and to share the list of designated entities with the President.
Third, the Memorandum directs the Secretary of the Treasury to coordinate with the Attorney General to make available all resources to “identify and disrupt financial networks that fund domestic terrorism and political violence,” including guidance to “investigate indicia of illicit funding streams” and to instruct financial institutions to file Suspicious Activity Reports related to the activity discussed.
Fourth, the Memorandum orders the Commissioner of the IRS to “take action to ensure that no tax-exempt entities are directly or indirectly financing political violence or domestic terrorism,” including referring these organizations, and their employees and officers, to the Department of Justice for investigation and possible prosecution.
Finally, the Memorandum directs federal law enforcement agencies to question “individuals engaged in political violence or lawlessness” about “the entity or individual organizing such actions.” Further, the agencies are directed to interrogate individuals regarding any “financial sponsorship” of their activities (e.g., whether they were paid to engage in a protest).
Impact
Despite the Memorandum’s extreme rhetoric, its proclamations have no immediate legal impact on progressive organizations. Therefore, the Memorandum is best understood as a statement regarding the Trump administration’s priorities and an intention to weaponize federal law enforcement against the President’s perceived opponents to achieve those ends, as opposed to an order with a substantive legal effect.
Notably, the Memorandum calls on the Attorney General to designate groups as “domestic terrorist organization[s],” a term which is not defined in Federal law. However toothless on its face, the Memorandum sends a troubling signal that nonprofit, political, and other civil society organizations that oppose the policies and actions of this administration face an increased risk of a federal investigation, which could lead to criminal charges or other punitive measures such as the revocation of tax-exempt status. At a minimum, such politically motivated investigations would bog down targeted organizations with legal costs and compliance headaches all while detracting from their missions.
Please reach out to your ELG contact to help assess your risk and discuss what your organization can do to best protect itself in this environment. ELG will monitor the implementation of the Memorandum and will keep our clients apprised of key developments.