Presidential Memorandum Signals Expanded Use of Counterterrorism Tools: Implications for Domestic Organizations and Organizers

On the heels of an Executive Order (EO) purporting to designate Antifa as a “Domestic Terrorist Organization,” President Trump has issued a broader National Security Presidential Memorandum (NSPM) titled “Countering Domestic Terrorism and Organized Political Violence.” Published on September 25, 2025, the NSPM directs executive departments and agencies to implement “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.”

The EO, which was issued on September 22, 2025, designated Antifa as a “Domestic Terrorist Organization,” singling out a specific target that has long been a focus of the President, and directing “[a]ll relevant executive departments and agencies [to] utilize all applicable authorities to investigate, disrupt, and dismantle any and all illegal operations—especially those involving terrorist actions—conducted by Antifa or any person claiming to act on behalf of Antifa.” But beyond these general instructions, the EO did not provide specifics about how it would be enforced and its source of authority, raising questions about its legal basis and immediate practical effect.

The NSPM begins to answer those questions. While not focused exclusively on Antifa, the NSPM begins by recounting a series of past acts of violence that have been featured prominently in the President’s public statements, contending that such acts reflect “common recurrent motivations and indicia . . . of violent and terroristic activities under the umbrella of self-described ‘anti-fascism.’”  Addressed to the Secretary of State, Secretary of the Treasury, Attorney General, and Secretary of Homeland Security, the NSPM offers far more details on how to operationalize the EO, including specifying the legal tools that the relevant agencies should use and the resources they should commit. 

The NSPM does not amount to a new terrorism designation or invoke new sources of legal authority. Rather, the NSPM is the latest indication that the Administration is pursuing an enforcement strategy through new and aggressive uses of existing authorities in furtherance of its goal of “disband[ing] and uproot[ing] networks, entities, and organizations that [the NSPM claims] promote organized violence, violent intimidation, conspiracies against rights, and other efforts to disrupt the functioning of a democratic society.”

Enforcement Avenues & Potential Consequences

The NSPM calls for five major efforts:

1. It instructs the Joint Terrorism Task Forces (JTTFs) to investigate, and the Attorney General to direct the prosecution of, “entities and individuals engaged in acts of political violence and intimidation designed to suppress lawful political activity or obstruct the rule of law.” 
2. It directs the Secretary of the Treasury to “identify and disrupt financial networks that fund domestic terrorism and political violence.”
3. It directs the Commissioner of the Internal Revenue Service (IRS) to “ensure that no tax-exempt entities are directly or indirectly financing political violence or domestic terrorism.”
4. It provides that the Attorney General “may recommend” the designation as a “domestic terrorist organization” of any group or entity whose members are engaged in domestic terrorism, as defined in 18 U.S.C. § 2331(5).  Domestic terrorist activities under that statute are those that involve unlawful acts that are “dangerous to human life” and “appear to be intended” to intimidate or coerce the government or civilians. 
5. It directs the Attorney General and the Secretary of Homeland Security to develop “appropriate grant programs to allocate funding for law enforcement partners to detect, prevent, and protect against threats rising” from anti-government sentiments.

Investigations and Prosecution: Directives to Federal Law Enforcement and Prosecutors

JTTFs have been a staple of the post-9/11 response to international terrorism and today play a key role in investigations of domestic terrorism. Under existing authorities, Federal Bureau of Investigation-led JTTFs, consisting of local, state, and federal law enforcement agencies, are already authorized to conduct domestic terrorism investigations, including into so-called Anti-Government/Anti-Authority Violent Extremists, and they regularly do so. 

The NSPM does not provide the JTTFs with additional investigative authorities, but instead reflects a new presidential prioritization, directing the JTTFs to use existing authorities to investigate individuals and organizations who fund or otherwise support actors engaging in political violence and intimidation.   

The NSPM directive to investigate is expansive, including a specific command that JTTFs “shall investigate” not just individual actors based on individual conduct but also “institutional and individual funders, and officers and employees of organizations, that are responsible for, sponsor, or otherwise aid and abet the principal actors engaging in the criminal conduct described” in the NSPM. The NSPM’s broad language does not specify what, if any, indications of individual knowledge and personal participation must be present for a “funder,” “officer,” or “employee” of such an organization to become the subject of an investigation.

This focus on investigating fundraising and sponsorship activities recurs throughout the NSPM, which directs “[a]ll Federal law enforcement agencies with investigative authority [to] question and interrogate, within all lawful authorities, individuals engaged in political violence or lawlessness regarding the entity or individual organizing such actions and any related financial sponsorship of those actions prior to adjudication or initiation of a plea agreement” (emphasis added).

The NSPM  further directs that in pursuing such investigations, law enforcement “should prioritize crimes such as the following: assaulting Federal officers or employees or otherwise engaging in conduct proscribed by 18 U.S.C. § 111; conspiracy against rights under 18 U.S.C. § 241; conspiracy to commit offense under 18 U.S.C. § 371; solicitation to commit a crime of violence under 18 U.S.C. § 373; money laundering under 18 U.S.C. § 1956; funding of terrorist acts or otherwise facilitating terrorism under 18 U.S.C. §§ 2339, 2339A, 2339B, 2339C, and 2339D; arson offenses under 18 U.S.C. § 844; violations of the Racketeer Influenced and Corrupt Organizations Act [(RICO)] (18 U.S.C. § 1961 et seq.); and major fraud against the United States under 18 U.S.C. § 1031.”

The list of charges is notable in several respects.

• A particularly notable listed statutory offense is 18 U.S.C. § 2339A (Providing Material Support to Terrorists). Individuals and entities involved in violent acts of domestic terrorism could already have potentially faced prosecution under 18 U.S.C. § 2339A for providing “material support or resources” in support of certain specified offenses broadly linked to terrorism, such as assaulting a member of Congress (18 U.S.C. § 351), committing certain acts of violence on mass transit (18 U.S.C. § 1992). or causing damage to government property (18 U.S.C. § 1361).  But the NSPM directs that such prosecutions will now be prioritized. A prosecution under § 2339A does not require that the recipient be a member of or directed by a designated foreign terrorist organization (FTO). In theory, then, this provision of “material support” could be applied to individuals who provide material support to these offenses and are associated with the anti-fascist movement[1] or other ideologies described in the NSPM. However, to secure a conviction under § 2339A, the government must prove that the individual or group providing material support did so “knowing or intending” that the support would be used for one of those statutorily specified crimes, precluding liability for negligent conduct or the mere expression of political views or donations in the absence of such knowledge.
• Several listed statutes, such as 18 U.S.C. § 2339B and 18 U.S.C. § 2339C, require a nexus to a designated FTO that would generally not be available in a fact pattern involving purely domestic groups and entities. 
• The potential emphasis on RICO prosecutions is also notable and raises potential novel issues. Public remarks by senior administration officials have foreshadowed using RICO as a way to target networks or organizations with perceived links to political violence. An individual may be prosecuted under RICO if they are “associated with any enterprise engaged in . . . a pattern of racketeering activity” affecting interstate commerce and participate in that activity (18 U.S.C. § 1962(c)). Importantly, an “enterprise” need not be a legal entity: “any union or group of individuals associated in fact” qualifies (18 U.S.C. § 1961(4)). Predicate crimes qualifying as “racketeering activity” include certain threats, weapons charges, obstruction of justice offenses, certain international terrorism offenses, and other violent crimes. As with § 2339A prosecutions, though, the NSPM elevates such prosecutions in priority but does not impact the analysis of whether the requirements for a RICO prosecution are met. 

The NSPM further instructs JTTFs to investigate, and the Department of Justice (DOJ) to prosecute, “non-governmental organizations and American citizens residing abroad or with close ties to foreign governments, agents, citizens, foundations, or influence networks” for violations of the Foreign Agents Registration Act (FARA). FARA, enacted in 1938 to counter covert propaganda efforts by the Nazis, is a disclosure statute that requires individuals and entities (“agents”) to register with DOJ if they are engaged in certain activities on behalf of non-U.S. individuals and entities (“principals”) (22 U.S.C. § 612(a)). Agents may be prosecuted for willful failure to register (22 U.S.C. § 618(a)). For other violations, civil remedies are available to compel the agent’s registration (22 U.S.C. § 618(f)). Since FARA is intended to target undisclosed foreign influence in the United States, its inclusion appears to indicate a focus on foreign connections or foreign funding tied to domestic organizations—and may herald new scrutiny on non-governmental organizations and advocacy groups with headquarters or affiliates based outside the United States. 

Financial Networks

The NPSM instructs the Secretary of the Treasury to “identify and disrupt financial networks that fund domestic terrorism and political violence.” The NSPM directs the Treasury Department’s Terrorism and Financial Intelligence Office, which includes the Office of Foreign Assets Control (OFAC) and the Financial Crimes Enforcement Network (“FinCEN”), to “deploy investigative tools, examine financial flows, and coordinate with partner agencies to trace illicit funding streams.” The NSPM additionally instructs the Secretary of the Treasury to “provide guidance for financial institutions to file Suspicious Activity Reports (SARs) and investigate indicia of illicit funding streams to ensure such activity is rooted out at the source and referred for law enforcement action.”

These tools are typically used in international counterterrorism efforts. For example, in the wake of the October 7, 2023 Hamas attack on Israel, OFAC imposed sanctions on several individuals and entities believed to be providing financial support to Hamas, and FinCEN issued guidance to financial institutions with specific instructions on filing SARs where the institution believes the activity relates to financing Hamas.  FinCEN issued similar guidance in May 2024 regarding “Iran-backed terrorist organizations.” OFAC and FinCEN also recently used these tools to disrupt financial networks believed to be funding Russia’s war against Ukraine.

Loss of Tax-Exempt Status

The NSPM directs the IRS Commissioner to ensure that tax-exempt organizations are not supporting terrorist activities. The IRS may already suspend an organization’s tax-exempt status if the organization is designated as a terrorist organization under (1) the Immigration and Nationality Act; (2) the International Emergency Economic Powers Act; or (3) an EO “issued under the authority of any federal law” if the organization is identified as engaging in terrorist activity or supporting terrorism, including acts of domestic terrorism. 26 U.S.C. § 501(p).  The IRS must conduct an examination of the organization and give the organization an opportunity to contest the revocation. This may have important implications for non-profit organizations that rely on such tax-exempt status. The NSPM further directs the IRS to refer employees and officers of these organizations to DOJ for investigation and possible prosecution. 

Designation as a “Domestic Terrorist Organization”

The NSPM provides that the Attorney General may “recommend that any group or entity whose members are engaged in activities meeting the definition of “domestic terrorism” in 18 U.S.C. 2331(5) merits designation as a ‘domestic terrorist organization.’”  It further provides that the Attorney General should submit a list of these groups or entities to the President through the Assistant to the President and Homeland Security Advisor.  

But the definition of “domestic terrorism” in 18 U.S.C. 2331(5) is not part of an existing designation regime for terrorism and is instead used to inform factual determinations made in the context of specific criminal proceedings, such as in connection with applications for search warrants and to qualify for certain enhancements at sentencing. As explained in our earlier primer on this subject, no statutory process exists for designating an organization as a “Domestic Terrorist Organization” akin to the regime that exists for FTOs. The limited examples of domestic charities designated under other authorities were asserted to have close ties to previously designated FTOs. In past administrations, DOJ officials have acknowledged that a regime to designate domestic organizations as terrorist groups raises legal and policy concerns, particularly in the absence of a statutory process for such designations.

Absent a valid designation under an established legal authority, any list of “domestic terrorist organizations” prepared by the Attorney General is likely to serve only as a shortlist of priority candidates for the enforcement actions described above and also a source of reputational harm.

Creation of New Grant Funding

The NSPM directs the Attorney General and the Secretary of Homeland Security to develop “appropriate grant programs to allocate funding for law enforcement partners to detect, prevent, and protect against threats rising” from anti-government sentiment. Organizations ideologically aligned with the priorities laid out in this order may be able to apply for funds from this bucket of funding if established. By contrast, as discussed above, the NSPM focuses on “financial networks” and “fund[ing]” of domestic terrorism and political violence. Organizations under the Administration’s microscope may see funding dry up further and be the subject of federal scrutiny.   

Additional Implications

Prosecutorial Discretion

The NSPM instructs that “the Attorney General shall direct the Department of Justice to prosecute all Federal crimes” emerging out of the investigations contemplated by the NSPM “to the maximum extent permissible by law.”  This direction, paired with the instructions to prioritize certain types of investigations and charges, appears to remove some prosecutorial discretion. 

Traditional DOJ charging policy formulations underscored the importance that federal charges not just be legally available but also “readily provable” in court. Prior Administrations (including the first Trump Administration) and the current Trump Administration have established charging policies that similarly embody a “core principle” that while “prosecutors should charge and pursue the most serious, readily provable offense,” prosecutors could “conclude that a strict application of the above charging policy is not warranted or would be inconsistent with” DOJ’s priorities.

But the NSPM does not discuss these important considerations. It is unclear whether the language used in the NSPM is intended to displace the traditional principles of federal prosecution for these cases. If so, that could have broad implications for the cases that are brought in these areas.

Potential Challenges

Individuals or entities that express views mentioned in the NSPM (i.e., anti-Americanism, anti-capitalism, anti-Christianity, and hostility towards those who hold traditional American views on family, religion, and morality) may be able to challenge the NSPM on First Amendment grounds provided they can establish an injury-in-fact and satisfy the other requirements of Article III standing. Such challenges would require courts to delve into issues left open in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), which concerned the FTO designation regime. The Supreme Court held in that case, with strong deference to the Executive Branch in the realm of foreign policy, that § 2339B did not violate the First Amendment as applied to the plaintiffs. The Court did not address how the provision would withstand a First Amendment challenge as applied to a specific group or activity closely associated with domestic activism or political speech, or whether the analysis would be different when considering potential criminal prohibitions on purely domestic activity.

The NSPM may also potentially furnish grounds for motions for relief for criminal defendants who are later subject to prosecution, such as claims of selective prosecution grounded in the Equal Protection Clause or the First Amendment. Such claims have traditionally faced high hurdles and would raise novel issues in this context.

Outlook

Combined with the recent EO targeting Antifa, the Trump Administration’s priority is clear: Executive Branch agencies are to aggressively investigate, prosecute, and otherwise disrupt organizations that the President views as orchestrating political violence. Non-profits and other organizations should be prepared for these shifting priorities to result in increased scrutiny of grant programs, tax-exempt status determinations, FARA prosecutions, and other criminal charges under terrorism laws and other existing statutes.

Organizations concerned about the NSPM and its effects should seek legal counsel to better understand their risks of facing administrative, civil, or criminal consequences. MoFo’s team is continuously monitoring Executive Branch action in this area and stands ready to assist organizations in identifying risks and developing solutions to mitigate those risks.

[1] The September 22, 2025 EO describes Antifa as a group or organization despite law enforcement officials stressing that Antifa was “more of an ideology than an organization.” This NSPM appears to align with law enforcement’s understanding as it includes language directed at “groups and entities that perpetuate” Antifa’s values.