“Extremely disturbing”: What does Trump’s “antifa” executive order actually do?

It took only minutes after Charlie Kirk was pronounced dead for right-wing figures to begin calling for retribution. “More people will be murdered if the Left isn’t crushed with the power of the state,” Laura Loomer, a far-right activist and close ally of President Donald Trump, posted on X. Despite the motive remaining unknown, pardoned insurrections and Republican lawmakers alike quickly warned of a “civil war.” Vice President JD Vance, hosting the late influencer’s podcast later that week, decried “radical left lunatics” and vowed to “go after” a nebulous “network” of liberal organizations that, he said, “foments, facilitates, and engages in violence.”

This hope to go after enemies did not come about suddenly after Kirk’s death. The Trump administration has long had a plan for silencing dissent.

The Heritage Foundation, the right-wing group behind Project 2025, laid out its wishlist for a similar campaign in Project Esther. Building off bipartisan roadblocks to pro-Palestine activism, Project Esther calls for deportations, federal criminal investigations, and probes into George Soros. Now, Kirk’s murder has seemingly provided a shock doctrine moment for the implementation of some of these ideas: On September 22, Trump signed an executive order designating “antifa” as a domestic terrorist organization—formalizing his administration’s threat to punish the broader left for Kirk’s shocking murder.

The day after, I spoke with Chip Gibbons, policy director at the nonprofit civil liberties advocacy organization Defending Rights & Dissent, about the Trump administration’s playbook for crushing free speech.

Gibbons has spent a decade submitting Freedom of Information Act requests to the FBI—including asking for the FBI’s antifa files in 2017—in an attempt to shed light on its domestic surveillance activities. In 2020, he obtained records revealing that the FBI had opened counterterrorism investigations into nonviolent Palestinian solidarity activists. He is the author of the forthcoming The Imperial Bureau: The FBI, Political Surveillance, and the Rise of the US National Security State from Verso Books, which traces the rise of domestic political surveillance through the emergence of the US national security state.

Two days after my conversation with Gibbons, Trump signed a National Security Presidential Memorandum laying out specific action steps for a whole-government strategy “to investigate, disrupt, and dismantle all stages of organized political violence and domestic terrorism,” including unleashing the FBI’s Joint Terrorism Task Force on “antifa.” In an email, Gibbons called the memo “extremely disturbing.”

“If there was any question if the Antifa order was bluster or the beginning of a serious campaign against the left,” Gibbons wrote, “this document—which is essentially a blueprint—shows we all have deep reasons to be concerned.”

This interview has been lightly condensed and edited. 

You noted in a recent statement for Defending Rights & Dissent, that “there is no law that allows the president to designate a domestic organization as terrorists … [but] a close read of the language mirrors existing FBI powers.” What does the law actually say, and what exceptions exist for the FBI in practice to investigate domestic targets?

At the presidential and executive level, there are really two terrorism designations that matter. One is the “Foreign Terrorist Organization” designation, which was added to the Immigration and Nationality Act by the Antiterrorism and Effective Death Penalty Act of 1996. The designation allows the Secretary of State to set up a blacklist of prohibited foreign organizations, and then it becomes a crime to provide them with material support. The material support statute isn’t just buying guns, or buying weapons. It includes a broad range of services—legal representation, PR; the government also claims it covers coordinated advocacy with the Foreign Terrorist Organization. It really is one of the broadest criminalizations of pure speech since the Smith Act of the 1930s.

There’s also what’s called the Specially Designated Global Terrorist, which comes from the International Emergency Economic Powers Act. That’s the law that we use to impose sanctions on foreign governments and individuals. The Specially Designated Global Terrorist label has been applied to domestic groups, like the Holy Land Foundation, but it’s always been on the basis of support for international terrorism. There is no purely domestic designation. And Trump didn’t invoke the Emergency Powers Act. He didn’t invoke any law. 

In the order, what I noticed is that in the very first sentence, he calls antifa an “anarchist enterprise.” Enterprise is a key term here for two reasons. First, it invokes RICO, which is something they keep talking about. But also: the FBI is able to conduct something called a “terrorism enterprise investigation” into a group of two or more. It can apply to an organization; it can apply to just a group of people. And the FBI, we know for a fact, internally distinguishes its domestic terrorism investigations based on ideology. They have a category called “anarchist violent extremists.” And we know from Christopher Wray, the former FBI director, that the FBI had open investigations into individuals who were inspired by an antifa-like “ideology.”

So Trump’s order is, I think, what happens when you have a government of podcasters. You don’t get the bureaucratic language right every time, but it’s similar enough that it’s easy to read as a green light into a terrorist enterprise investigation being opened. It’s also difficult to believe the FBI hasn’t already done so. It’s very clear there’s been some sort of movement in this direction already, and now Trump can escalate it.

This will also affect how local law enforcement sees groups. We know that in Cop City prosecutions, for instance, prosecutors claimed that the DHS labeled protesters as either domestic terrorists or domestic violent extremists, and they used that as a justification for what they were doing. So now you have an executive order from Trump saying this is a domestic terrorism organization. If you’re the local sheriff, you’re not really thinking about the niceties of, well, this is what the Immigration and Nationality Act says and these are FBI guidelines—you hear: Okay, these people are a terrorist organization, and I can go out and get them.

Antifa, of course, is not a single, cohesive organization. So what are the specific ways we might see an order like this play out in the policing and surveillance of groups and individuals across the left?

The FBI operates under extremely loose guidelines. And the guidelines encourage them to take a preventative path to counterterrorism—the FBI cannot just wait to learn about terrorists or terrorism, they have to go out and be proactive in disrupting.

In order to facilitate this, there are two types of broad categories of FBI investigations: predicated investigations—in which you have a factual predicate that someone is breaking a law or threatening national security—and then there are assessments, where you don’t require a factual predicate. Those are designed for the FBI to proactively find potential terrorists and prevent terrorism. 

Now, you can imagine, if you tell an FBI agent to proactively go out and find anarchists, violent extremists, before they can act, they’re going to look for someone with that ideology. Now you have Trump telling people to go out and look for antifa, which means they can be opening assessments on people who they, for whatever reason, feel have this nebulous, broad ideology.

And we already saw that happen during Trump’s first term, during the George Floyd protests. The Trump administration used a lot of this heated rhetoric about antifa, and we heard stories of people who participated in the protests being asked by FBI Joint Terrorism Task Force agents, “Do you know anything about antifa?”

I’m glad you brought that up, because I was remembering that Trump actually did threaten to designate antifa a terrorist organization in 2020, and it never ended up happening. Is there something about this political moment five years later that emboldens him to make this declaration now? Why didn’t it happen before?

It’s really hard to say. I mean, last time we had Bill Barr as US Attorney General. I don’t like Barr. But he was a serious bureaucrat—and he knew how the FBI powers worked. He pushed a number of internal bureaucratic moves to use the FBI structures, including setting up a new working group on what were called “violent anti-government extremists”; [this new group] he claimed was targeting antifa and the Boogaloo boys. Then, some of the George Floyd protesters that were arrested had their names run through a database of foreign intelligence information collected by the NSA.

Barr understood how the FBI worked. Calling someone something that doesn’t have any meaning in law is less efficient than triggering the Joint Terrorism Task Force, triggering the Foreign Intelligence powers, triggering the RICO laws. And Barr was clearly very interested in doing that, and knew how to do that, and it was unsatisfactory to Trump and the Republicans because they want this violence and the spectacle of everything, whereas this sort of more sophisticated, bureaucratic approach doesn’t satiate their bloodlust.

So is Trump’s executive order actually a less effective means of criminalization, or is the open-endedness of it ripe for a new type of abuse?

I don’t want to say it’s less effective because if someone within the FBI views it as a green light to use their actual existing powers, it’s an extremely effective move, and it gets local law enforcement going. It is an executive order that seems to be written by somebody with a minimum understanding of the counterterrorism bureaucracy. There are lots of little errors in there, but I don’t think we sit back and laugh and say, ha ha ha you didn’t use the right terrorist enterprise language. Because someone in the FBI does know what it means, and they can use this as a license.

This moment feels like something that people like you have been warning about for years, especially the erosion of constitutional protections after 9/11. Can you explain some of the specific national security and policy developments that laid the groundwork for this moment? 

The biggest policy that laid the groundwork for this was the adaptation of a preventative approach to counterterrorism, saying the FBI was no longer a law enforcement agency that would prosecute terrorism after it happened, but was going to disrupt it before it occurred as an intelligence agency.

Of course, the 9/11 attacks were a horrific tragedy, and after any sort of tragedy like that you’re going to have a less open atmosphere, a greater willingness to restrict rights. But the response was not made up on the spot.

There was a 25-year project, pre-9/11, to restore the Hoover-like powers of the FBI, driven by this desire to confront terrorism. Proponents argued that limiting the FBI to investigating only crimes or foreign powers, where evidence of lawbreaking existed, stripped some of its ability to prevent terrorism. If you go back to what was written in The Nation magazine and by scholars of the McCarthy period in the early Reagan years, they’re all saying this fear of terrorism is going to be used to revive McCarthyism. It becomes the official policy after 9/11.

The whole theory behind this is that terrorism comes out of political movements, so you have to spy on those political movements. In the course of writing my book, I obtained a document from the FBI written right before 9/11, in August 2001, about the coming terror threat of anarchists. It said anarchists are a big terror threat because they’ve already killed President McKinley, but it also says it’s because of the big World Trade Organization protest, and domestic terrorism always follows a watershed protest.

So, you have this ideology crystallizing within people who want to bring back the Hoover program, as well as the new generation of counterterrorism experts that say that preventative surveillance of political speech is needed to stop terrorism before it happens, and that framework was put in place after 9/11.

That’s an interesting point: that, to the FBI, terrorism comes out of political movements. It seems to me that the pro-Palestine movement has increasingly become a channel for this broader domestic surveillance of leftist groups. Do you see a connection between Project Esther and Trump’s executive order?

There’s an argument that’s made that Israel’s genocide in Gaza and wars in the occupied territories are a laboratory for future military policy. And I think in the United States, you’ve seen the suppression of pro-Palestinian speech being a laboratory for future crackdowns on free speech. 

A lot of the preventative approach stuff was initially about reviving the McCarthy era—targeting the Communist Party and the Socialist Workers Party and the National Lawyers Guild. That doesn’t really make sense from a counterterrorism perspective. By the 90s, though, they had started to focus on pro-Palestinian groups. And there’s actually some early-90s discussion that leaked into the press about the FBI using RICO, because this is before they had the material support law to go after them. Then, of course, after 9/11, who were the main War on Terror prosecutions: Sami Al-Arian, accused of supporting Palestinian Islamic Jihad; the Holy Land Foundation, accused of giving aid to Palestinian orphans; and then Muhammad Salah, who was tortured by the Israeli government.

The Heritage Foundation report is very much in line with this tradition, and it does mirror the framework we’re seeing with antifa. There are discussions of a shadowy network—we have a diffuse group of Americans who are engaging in political speech because they don’t like Israel’s genocide, and they transform that into shadowy network, the “Hamas Support Network,” that is somehow all coordinated and working together. And they talk about going after the funders, using RICO, designating people as terrorists. All of these protests against Trump’s policies across the country are not, they claim, diffuse Americans outraged—they’re being put up to it by antifa. 

The question now is: Does the Trump administration go after someone more mainstream? I don’t use that term to disparage people’s views, but just to indicate they’re more politically connected—like George Soros or the Tides Foundation. Or do they go after someone who has more radical politics and is less politically connected? And if they do the second, do the Democrats rally their support, or do they say: Oh, I don’t want to touch that guy? Because when setting up these types of precedents, the state is very, very good at finding people they perceive as being clearly marginalized and unlikely to garner support. That’s part of the reason why they’ve gone after Palestinian groups so much.  

So, we’ve talked about how so much of this feels like it’s been in the works for a long time, from McCarthy, to post-9/11, to today. At the same, I think to many people, democracy feels pretty fragile right now. As somebody who’s been looking at the erosion of civil liberties for a long time and sounding the alarm about First Amendment rights, do you find this executive order and Trump’s second administration to be uniquely concerning or authoritarian—or is this just part of a broader lineage?

I think it’s both. It’s part of a broader 100-plus-year history, but it’s also an escalation. And we should be afraid of the escalation. 

The national security state is a wonderful tool for a skilled authoritarian to crush American democracy. There’s very little question at this point that Trump is an authoritarian—the question is, how skilled is he? He has all these powers, from the FBI to the NSA to the DOJ to the DHS, to really do damage to our democracy. These are powers that should never have been given to the executive branch, but now he has them, and it’s terrifying. If Trump truly is, I don’t know, the American Franco or Pinochet—and I’m not going that far just yet—but if he was, he could easily accomplish that through the weapons we’ve given him through decades of national security policy.