President Donald Trump is using the specter of terrorism to falsely portray his critics as threats to national security. 

On Monday, President Donald Trump signed an executive order designating “antifa” a domestic terrorist organization. But the order is a hollow threat under the law and seems intended only to spread a false narrative and muzzle dissent.

In a recent post on Truth Social, Trump wrote, “I am pleased to inform our many U.S.A. Patriots that I am designating ANTIFA, A SICK, DANGEROUS, RADICAL LEFT DISASTER, AS A MAJOR TERRORIST ORGANIZATION. I will also be strongly recommending that those funding ANTIFA be thoroughly investigated in accordance with the highest legal standards and practices.”

But Trump’s order is a non-starter under the law for several reasons. 

First, federal statutes permit the State Department to designate organizations as terrorists, which, in turn, can trigger punitive legal consequences. For example, anyone who provides money, goods, or services to a designated organization can be charged with the crime of material support. The government can also freeze the assets of a designated organization. Members of the organization may be deported from the United States. 

But here’s the rub: The law applies to “organizations,” something antifa is not. 

Short for “anti-fascist,” antifa is a philosophy that holds that authoritarians should be combated with a violent response, such as assault or property damage. That philosophy is dangerous and contrary to our American values of free speech and use of the courts to resolve conflicts. But antifa is not an “organization” any more than white supremacy is an organization. Antifa has no members, bank accounts, or organizational structure like al Qaeda or Hezbollah. Antifa has no official insignia patch to wear on one’s sleeve like those worn by the Proud Boys or the Oath Keepers. It is a movement, not an organization. The president could no more designate antifa an organization than he could “feminism,” “pacifism,” or “the patriarchy.”

But that is not the only flaw in Trump’s message. Even if antifa somehow were to become an organization, it still would fall short of statutory requirements. That’s because the law is limited to foreign terrorist organizations. Groups like ISIS are properly designated because they are based outside the United States. 

U.S. law has never designated domestic organizations as terrorist organizations. Lawmakers have declined to provide prosecutors with the tools that could dismantle such groups. For instance, material support—a law that applies only to foreign terrorist organizations—is a particularly effective tool for prosecutors because it targets preparatory activity short of violence. That law makes it a crime to simply provide money to a designated group, even if the funds are given for humanitarian purposes. The rationale for the law is that money is fungible, and so any donation to the terrorist group frees up other funds to support bombings or assassinations. Material support charges are intended to disrupt terrorist attacks before they can occur by making it more difficult to plan and carry them out. 

But our concerns about violating the civil liberties of American citizens have prevented Congress from extending these laws to domestic groups. The Senate’s Church Committee hearings in the 1970s revealed abuses by the CIA and FBI, which considered civil rights activists and Vietnam war protesters to be “subversives.” Fears of punishing people simply for their political views has kept Congress from designating domestic groups as terrorist organizations. 

 For example, when members of the Proud Boys and Oath Keepers attacked the U.S. Capitol, charges of material support were not an option. For prosecutors, proving material support would have been far easier than demonstrating other crimes because they would have needed to show only that defendants knowingly provided goods or services to a designated terror group. They would not have been required to prove any intent by the defendants to cause harm. But material support was not a crime that could be charged against these domestic violent extremists. Instead, prosecutors charged seditious conspiracy, a much more difficult crime to prove because it requires evidence of intent to use violence against the authority of the United States government. Their prosecutions were successful despite this higher burden of proof—at least until Trump’s pardons—but perhaps additional defendants could have been charged for supplying weapons, funds, or other assistance if material support laws had been available to them. For better or for worse, the laws that apply to terrorists are limited to foreign organizations. 

By designating antifa as a terrorist organization despite these obstacles, Trump is promoting a false narrative that far-left extremists are a threat to our national security. The timing of the announcement in the wake of the horrific murder of conservative political activist Charlie Kirk seems designed to link his death with an organized movement, despite evidence to the contrary. While hosting an episode of Kirk’s podcast last week, Vice President JD Vance referred to an “incredibly destructive movement of left-wing extremism that has grown up over the last few years, and I believe, is part of the reason why Charlie was killed by an assassin’s bullet.” Appearing on the same podcast, White House Deputy Chief of Staff Stephen Miller spoke of “the organized campaign that led to this assassination,” and “terrorist networks.” Miller said the Trump Administration would “identify, disrupt, dismantle, and destroy these networks and make America safe again for the American people, it will happen, and we will do it in Charlie’s name.”

In fact, all public evidence indicates that Kirk’s shooter acted alone, not as part of any organized network. And while political violence is a valid concern, data show that right-wing violent extremism far outpaces left-wing motivation in both frequency and lethality. The recent murder of a Minnesota lawmaker and her husband, the hammer attack on Nancy Pelosi’s husband, the Jan. 6 attack on the U.S. Capitol, the mass shootings the Tree of Life Synagogue in Pittsburgh, the grocery store in Buffalo, the Walmart in El-Paso, the Mother Emanuel Church in Charleston, South Carolina, and the Murrah federal building in Oklahoma City were all perpetrated by attackers with right-wing ideologies. Yet, Trump said after Kirk’s death,  “The radical left causes tremendous violence,” and “they seem to do it in a bigger way” than right-wing extremists. Political violence is a danger to society regardless of who commits it. Our focus should be on the conduct rather than any ideology. 

Trump’s legal advisers certainly know he can’t legally designate antifa as a foreign terrorist organization, but the new order will convince some people that left-wing extremism is a danger to public safety, scoring political points for Trump. In addition, the fear of serious legal repercussions could silence potential critics of Trump’s abuses of power. 

As Sen. Chris Murphy (D-CT), said last week, “The murder of Charlie Kirk could have united Americans to confront political violence. Instead, Trump and his anti-democratic radicals look to be readying a campaign to destroy dissent.”