In recent days, the White House and other executive branch entities have taken a series of actions which escalate the growing threats against nonprofits and foundations. These actions are deeply concerning, as they seem to extend far beyond efforts to address violence and domestic terrorism, raising profound issues about free speech and other constitutional protections.
- On September 22, President Trump issued an executive order (EO) declaring antifa to be a “domestic terrorist organization.” Although antifa is not a specific organization and there is apparently no existing federal mechanism to designate domestic terrorism groups, the EO directs executive departments to “investigate, disrupt, and dismantle any and all illegal operations … 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.”
- On September 25, the President issued a memorandum, “Countering Domestic Terrorism and Organized Political Violence.” The memo is sweeping and deeply concerning. It purports to connect exempt organization activity and free speech exercise with domestic terrorism, and adds more tools to motivate the IRS to strip tax exemptions based on ideological grounds.
As one example: “This “anti-fascist” lie has become the organizing rallying cry used by domestic terrorists to wage a violent assault against democratic institutions, constitutional rights, and fundamental American liberties. Common threads animating this violent conduct include anti-Americanism, anti-capitalism, and anti-Christianity; support for the overthrow of the United States Government; extremism on migration, race, and gender; and hostility towards those who hold traditional American views on family, religion, and morality.”
The September 25 memo calls for the creation of a Joint Terrorism Task Force, with full prosecutorial authority, and directed 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. “
It further directs the IRS Commissioner to “take action to ensure that no tax-exempt entities are directly or indirectly financing political violence or domestic terrorism,” and to refer these organizations and their employees and officers to the Justice Department for investigation and possible prosecution.
- Separately, the U.S. Justice Department has reportedly started to escalate investigations into large foundations such as the Open Society Institute, raising the prospect of charging them with criminal activity for funding domestic terrorism.
Web briefing September 29 at 4PM ET – The ACLU, National Council of Nonprofits and several other organizations are partnering to present a web briefing about the new directives. Learn more and register here. (We are unsure whether this session will be recorded.)
National Sign-on letter – The National Council of Nonprofits, Public Citizen, State Democracy Defenders Fund, Leadership Conference on Civil and Human Rights, ACLU, and Americans Against Government Censorship, are circulating an updated sign-on letter that condemns political violence and denounces efforts by any administration to stifle opposing voices. You can read the Open Letter Rejecting Presidential Attacks on Nonprofit Organizations and consider signing your organization on.
Watch your email and our website for additional updates.
Some additional general resources:
Nonprofit Toolkit: Resources for Nonprofit Organizations Facing Government Investigations – ProtectDemocracy.org
Nonprofits Under Fire: How the IRS Can – and Cannot – Revoke Federal Tax-Exempt Status – Tenenbaum Law Group PLLC
Resources to Navigate Undertainty – New Jersey Center for Nonprofits
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