Rebecca, Liz, and Alison speak with Rachel Levinson-Waldman from the Brennan Center for Justice about the Trump administration and current Congress weaponizing the government to attack nonprofits and punish speech and viewpoints they don’t like. They explore how executive orders and anti-terrorism statutes are being abused to investigate, defund, and intimidate civil society, and how this strategy is essential to the broader project to transform America from a democracy to an autocracy.
Show Notes
Trump Administration Documents
Presidential Memo – “Countering Domestic Terrorism and Organized Political Violence"
Executive Order Designating Antifa as a Domestic Terrorist Organization
Executive Order – “Guaranteeing Fair Banking for All Americans"
Articles and Reactions
NPR – "'We're not afraid': George Soros' foundation on being Trump's next target" (Open Society Foundation)
Lawfare – “The Politically Motivated Indictment of Southern Poverty Law Center”
Civil Society Rights & Resiliency Resources – Charity & Security Network
Cato at Liberty Blog – "Politically Motivated Violence Is Rare in the United States” (right-wing extremists account for 11% of politically motivated killings, while left-wing extremists account for 2%)
Brennan Center for Justice – “Trump’s Orders Targeting Anti-Fascism Aim to Criminalize Opposition”
ACLU – "How NSPM-7 Seeks to Use "Domestic Terrorism" to Target Nonprofits and Activists”
Lawfare – "The Bondi Memo’s Quiet Rewriting of Domestic Terrorism Rules”
Lawfare – "You Can’t Designate ‘Antifa.’ Banks and Platforms Will Act Like You Did Anyway”
Rebecca Markert:
Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I'm Rebecca Markert with Americans United for Separation of Church and State.
Liz Cavell:
I'm Liz Cavell with the Freedom From Religion Foundation.
Alison Gill:
And I'm Alison Gill with National Women's Law Center. And today we're very excited to welcome Rachel Levinson-Waldman, who is the director of the Liberty and National Security Program at the Brennan Center for Justice to speak about the Trump administration's weaponization of the national security laws to target nonprofits. And this is a really serious topic, so I really appreciate you coming in today, Rachel.
Rachel Levinson-Waldman:
Thank you for having me. I'm really glad to be here.
Alison Gill:
The Liberty and National Security Program seeks to advance effective national security policies that respect constitutional values and the rule of law. And Rachel has engaged on a wide variety of issues related to policing and technology, including the federal government's use of surveillance technology. She has been published in law journals on topics, including law enforcement, use of social media for monitoring and surveillance, and Fourth Amendment issues arising from government surveillance and public spaces. And she co-authored numerous Brennan Center reports on related issues. Prior to joining the Brennan Center, she served as counsel for the American Association of University Professors and prior to that as a trial attorney with the Civil Rights Division of the Department of Justice. So thank you so much again, Rachel. We really appreciate you joining us.
Rachel Levinson-Waldman:
Yeah, thank you.
Alison Gill:
So can you tell us a bit more about your work at the Brennan Center for Justice and what you do there?
Rachel Levinson-Waldman:
Sure. So I joined the Brennan Center coming on 15 years ago in early 2012 and I've been with the Liberty and National Security Program that whole time. I usually describe our work as kind of historically being focused on post 9/11 national security and civil liberties issues. So privacy, secrecy, domestic intelligence gathering, Islamophobia, overclassification, sort of those suite of activities has grown to include issues around policing and technology and civil liberties and civil rights. And I would say more broadly kind of the weaponization of national security and national security rhetoric since 9/11. That is a through line in the last 20 or 25 years and then we've seen it kind of leveraged and weaponized in various ways. And the Brennan Center overall was founded in 1995. I always describe it as being dedicated to shoring grams. So that's civil liberties and national security.
It's a lot of democracy and voting rights work, campaign finance reading reform, redistricting, ending mass incarceration, kind of a suite of issues related to how our democracy functions for the people.
Alison Gill:
Fantastic. Thank you again. So I feel like there's so many issues we could talk about within that ambit when it comes to this administration's unprecedented use of surveillance technology, aggressive policing and other types of weaponization. But today we'd really like to focus on an issue that our listeners might not be as familiar with, which is the use of national security mechanisms to target donors and nonprofit organizations that the president opposes. So can you start by giving us an overview of what's been happening in that area?
Rachel Levinson-Waldman:
Sure. So there's a lot to unpack here, but let me take it sort of in order a little bit and walk through some of the big efforts that we've seen from this administration, specifically the second Trump administration. So starting out in September 2025, so last fall, the president put out an executive order that designated Antifa, which your listeners probably know. Right, It's a sort of loose conglomeration, basically sort of directed at anti-fascism, designating Antifa as a domestic terrorist organization and directing the entire executive branch to use its authorities to investigate, disrupt, and dismantle any and all illegal operations conducted by Antifa or anyone claiming to act on their behalf or any activities for which Antifa had provided material support. So notably, this is despite the fact that there is no statute that actually allows the president to designate a group as a domestic terrorist organization. It would be in profound conflict with the First Amendment and that Antifa isn't really even an organization in the first place.
In a lot of ways, it's really defined by its lack of central organization. Even Christopher Ray, who is President Trump's FBI director during his first term, when he testified to Congress in the fall of 2020 about Antifa, he described it as a movement or an ideology and not a group or an organization. And then shortly after that Antifa executive order came out, President Trump published what's called a National Security Presidential Memorandum. This one is called NSPM7 and it basically orders kind of a whole of government approach to pursuing anti-fascist groups and it directs multiple executive agencies. So you have the State Department, the Departments of Justice and Homeland Security, the Treasury Department to prioritize domestic terrorism. And here I think what's really important is the language that it uses because domestic terrorism sounds scary and it sounds important, which it can be. And it does mention some acts of political violence that are crimes like assassination attempts and should be prosecuted as criminal acts, but it goes on to list what it calls these common threads that animate violent conduct.
Those are things like anti-Americanism, anti-capitalism, extremism on migration, race and gender, hostility towards people who hold traditional American views on family religion and morality and then it ties those threads back to Antifa. So there's this kind of like brew of actual criminal activity and then this insinuation that all of those constitutionally protected viewpoints or ideologies are somehow indicative of criminal activity and are adequate to lead to a law enforcement investigation and that's really what that order is focusing on. It sets out this comprehensive law enforcement focus where the FBI and joint terrorism task forces, which the FBI runs, would look for possible federal crimes, would investigate organizations along with their employees and officers and funders that are related to those activities. So it is incredibly sweeping. It also brings in the tax system, directs the secretary of the treasury and the IRS to kind of search for crimes to investigate and prosecute.
And then it purports to authorize the attorney general to designate groups as domestic terrorism organizations, even though again, there is nothing in the law that allows that and it runs squarely into the First Amendment. And let me just take a quick moment to make a point that I think is important in terms of kind of hearing this and thinking about what these orders mean, because I started this timeline in the fall of 2025. There are these two executive orders that came out, but this administration has really been marked by an effort to go after its political enemies and reward its friends, including targeting nonprofit organizations and civil society. So just to kind of take a few examples, the day after President Trump's inauguration, he issued an executive order that directed every federal agency to identify large nonprofit corporations, associations, foundations that should be investigated for their DEI practices.
DOGE tried to assign staffers to the Vera Institute of Justice, which is a very well respected nonprofit whose mission is about discriminatory criminalization and mass incarceration because despite the fact that DOSH has no authority to infiltrate an independent civil society organization. And then over the summer, a congressional committee pretty much seeming to take its cues from the administration, launched an investigation into more than 200 nonprofit groups that it accused of providing aid to migrants, included the Catholic Charities Coalition for Humane Immigrant Rights and more. So it's really this kind of comprehensive effort I think that's targeted at nonprofit groups, civil society organizations.
Alison Gill:
Thank you so much. There's a lot to unpack there. And you're also reminding me of the recent targeting against the Southern Poverty Law Center as well, which is not, of course, using this domestic sort of terrorism framework, but is still very targeted against a nonprofit that is sort of an oppositional ideology to the president
Rachel Levinson-Waldman:
Yeah, I think that's right.
Alison Gill:
So following up on that, can you tell us what effect these sorts of steps you've been talking about will have on law enforcement? Like what does the NSPM7 do and does it grant investigators additional powers or otherwise enable them to do some of the actions you've been telling us about?
Rachel Levinson-Waldman:
Yeah, I think this is a really important question and in some ways there are a few different answers. I mean at the most basic level it does not create new law and even though federal law does define domestic terrorism, there's no actual crime of domestic terrorism. And I think that's one of the things that these orders sort of muddy a little bit. At the same time, calling something domestic terrorism does unlock additional investigative authorities by the FBI. It opens up sentencing enhancements and it can result in targets being added to federal watch lists. So kind of putting something in this category of a domestic terrorism investigation does have legal consequences and it can certainly be very scary. One of the sort of follow ons from NSPM7 was that it set out kind of all of those directives, which were a little bit vague, although significant, but what happened next was a few months later in December, the Attorney General, Pam Bondi, issued a memorandum that kind of operationalizes NSPM7.
So it tells federal prosecutors to prioritize investigations of Antifa, basically to look for opportunities to charge people for the activities highlighted in NSPM7. And it again keeps pointing back to viewpoint. Again, things like adherence to what it calls extreme viewpoints on immigration, on gender ideology, on anti-American sentiment and basically says that the threat kind of defined by those strands will be one of the top priorities, if not the top priority for federal law enforcement. And it goes on to set out a number of specific steps that federal agencies are supposed to kind of carry out in order to again, operationalize everything that NSPM7 directs.
Alison Gill:
What are some of those?
Rachel Levinson-Waldman:
Yeah. So this includes creating and maintaining lists of domestic terrorism organizations and what it calls Antifa aligned entities. That's going to include mapping related groups and coalitions. This really kind of hearkens back to the church committee era, kind of the post Watergate era, right? When it came out that federal agencies were doing all of this domestic kind of intelligence gathering. It has federal law enforcement agencies look back in their files to pull out ANTIFA related information and send it to the FBI so that JTTFs can review it. It's directed to reopen matters from the past five years that involve domestic terrorism so there can be additional investigations, directs using tax law to go after groups and to use this terrorism sentencing enhancement, which can result in much more significant penalties, sends grants to state and local law enforcement agencies for programs to counter domestic terrorism.
So it kind of loops all of those state and local entities in and it directs the FBI to set up a tip line to invite information from the public and provides cash awards. So it's sort of a bounty system almost that says if you can gin up some information about people you know or organizations you're seeing that are engaged in activities that fall into these categories that we have declared that we don't like and you send this information to the FBI, then you may get some money for your troubles.
Alison Gill:
Wow, that's amazing. Very scary. And what is the impact of all this on nonprofits in the US? I think we have to differentiate US nonprofits versus foreign nonprofits a little bit, right? So can you tell us about what impact all this has?
Rachel Levinson-Waldman:
Yeah, I think this is really important. I mean, I think at a basic level it is going to be enormously chilling to nonprofits. I think one of the real impacts of this, as I've sort of been alluding to, there's a real question how much of this will sort of hold up in court, right? There's not actually the authority to designate domestic terrorism organizations. There's some real tension with FBI and DOJ directives around investigating people based on viewpoint, but it's not even clear that that's the point that instead the point is to quash kind of a whole range of activity that individuals and groups would otherwise be engaging in because the risks seem too high. Basically the stakes are so high. So I think there can be and is going to be a really significant chilling effect. It might reduce trust in nonprofits. It sort of lays the groundwork and there's more generally a lot of rhetoric that this administration has been using to kind of go after civil society, go after nonprofits.
I think a lot of that is really designed to reduce the public's trust in nonprofits so many of which are doing incredibly important day-to-day work in people's communities and previous administrations have often partnered with civil society, have kind of lifted up their work. So this is very much taking the opposite approach. And I think there's also a real risk that it will be harder and harder for organizations to get funds, right? Whether it's people deciding not to donate or financial institutions deciding that there are risks in kind of facilitating donations, especially for groups that are engaged in activities that are specifically called out or seem like they're going to be a really significant target of the administration.
Alison Gill:
It reminds me of what I was just mentioning before about the Southern Poverty Law Center, which is not being targeted for some domestic terrorism, but we've seen that they are being targeted by this administration and that has already had impact, for example, on their ability to get fidelity and other types of donor, what was it called, donor assisted funds? Donor
Rachel Levinson-Waldman:
Advised funds.
Alison Gill:
Donor advised funds. So can you talk a little bit about that?
Rachel Levinson-Waldman:
Yeah, it's a good question. And you're right that the SPLC indictment was on different grounds,
But I think it is also an important flag here. So in response to some of the coverage about the SPLC indictment and the fact that people using some of these donor advised funds weren't able to send donations to SPLC anymore, Fidelity said that a grant could be declined if an organization was being investigated for alleged illegal activities, including terrorism, or if other state and federal agencies were investigating the organization. It's been a little ambiguous in some statements whether an investigation alone justifies kind of freezing that grant making or if it has to be an indictment, but it certainly seems possible that if it became public that a group was being investigated by the FBI or by a state law enforcement agency for engaging in domestic terrorism, even if that investigation was ultimately baseless that an entity like Fidelity or Vanguard or Schwab, these kind of big financial institutions might decide to halt grant making to that organization.
And I want to call out one I think really interesting sort of tension here, which is a conflict between this outcome or this potential outcome of NSPM7. I think it's not just potential because you do see this language kind of threaded throughout NSPM7 and the Bondi memo and subsequent the FBI has set up this mission center to investigate nonprofits. It's been reported that FBI and IRS are setting up this kind of joint collaboration, right? So it's quite explicit that they're sort of thinking about how to try to stem funding to organizations that are carrying out activities that they sort of see as in opposition. At the same time, there's a separate executive order that President Trump put out last August on what's often called debanking and that order came out of allegations that the Biden administration had unfairly denied financial services to groups that were conservative or were aligned with cryptocurrency and some other matters and that order says that people aren't supposed to be denied access to financial services because of their constitutionally or statutorily protected beliefs, affiliations or political views and that politicized or unlawful debanking shouldn't be used kind of as a tool to inhibit beliefs or affiliations.
And so we have this real tension between on the one hand NSPM7 and these subsequent efforts directing the Treasury Department and IRS to investigate funding sources for organizations that could be implicated. And on the other hand, this order saying, "Oh no, no, we definitely want ideology out of these decisions." And so I think it really remains to be seen how that's going to be resolved or if it will be, but there are these two very sort of contradictory orders out there.
Rebecca Markert:
I just had a quick question. As we're talking about these orders, Antifa and the Southern Poverty Law Center, it's just bringing to mind that this seems to be part and parcel of this administration's goal to target political opponents and other civil society organizations. And I just keep thinking of the executive orders against certain law firms last year as well and I was just curious if you could talk a little bit about that. Is that a sort of parallel track and do you see this as like multiple lines of attack?
Rachel Levinson-Waldman:
I think that's exactly right and I think we can broaden that out. So there's this attack on civil society or there's the attack on law firms, there's an attack on higher education, right? It sort of feels like there are these kind of parallel concerted efforts to go after sectors that provide expertise, kind of independent expertise that provide an independent voice that supply advocacy. I think similarly we can put sort of the attack on media and independent media as another tranche of those. So these do all feel like pieces of a broader campaign or broader effort to undermine all of those sectors in the eyes of the public and just make it much harder for them to do their work in ways that they have for decades, sometimes side by side with an administration, sometimes in an adversarial posture, but in a way that is under the kind of overall rubric of rule of law and due process and a functioning democracy and this does feel like a piece of a larger effort.
Alison Gill:
I think that's a really important point and thank you, Rebecca, for mentioning the law firms. I was thinking about them, many of these big law firms that were being targeted, they often work with nonprofits. They help provide them with litigation resources, they do research, they consider and bring big cases. So I mean, that is another way indirectly they're impacting the ability of nonprofits that might stand up against the Trump administration to actually do so because not only are the law firms they targeted affected, but other law firms, the ones they made deals with now have all their pro bono commitments that are acquired elsewhere and other nonprofits that maybe that aren't ones they pointed at or made deals with are now more reluctant to engage with nonprofits. It really distorts the entire field.
Rachel Levinson-Waldman:
Yeah, I think that's exactly right. There has been an enormous trickle down effect. And as you say, it has impacted both those law firms that basically signed deals with the administration, but also ones that didn't, but are kind of reading the writing on the law, right? It has just become harder for the civil society sector to get pro bono assistance. Those law firms, I think I just think a lot of law firms are being much more careful, much more cautious, much more selective about the kinds of matters they're undertaking, the groups that they're working with. We have seen as kind of a corollary or a counterpoint to that new law firms being set up that are sometimes being settled with the explicit purpose of working with organizations that kind of need that support and then they're doing additional work, right? They're sort of doing some combination of the pro bono work and work that kind of helps to pay the bills or they're getting other kinds of funding to support the nonprofit sector and that has been amazing.
But even those getting up and running, it doesn't really replace what had been a really robust pro bono practice by basically all of the big law firms in this country.
Alison Gill:
Absolutely. And it's also, I think it impacts some of the areas more than others, especially those that were called out in these NSPM and other sorts of the Bondi memo and other avenues where they attack like trans healthcare, for example, or immigration or DEI. Those things are especially harder to fight because the law firms don't want to be connected with it sometimes.
Rachel Levinson-Waldman:
Yeah. I suspect that's right. I don't know exactly what the landscape looks like, but I can't imagine that it's not harder for those groups, sort of even harder for those groups to get legal help and other kinds of assistance.
Alison Gill:
You were talking about this a little bit before, Rachel, but one of the reasons this caught my eye and the reasons we're discussing it on this podcast is because NSPM7 explicitly names domestic terrorism animated by anti-Christianity and I'll go ahead and read that section. 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. In other words, people who are not conservative. It definitely seems like they're equating, opposing or objecting to Christianity among these other things as terrorism or at least a motivating factor for violence. So what is the impact of this sort of framing?
Rachel Levinson-Waldman:
I think there are a few things that are of real concern. I mean, one is just at a baseline kind of identifying an ideology or a set of ideologies not action as terrorism, certainly identifying threats to a single religion to the exclusion of all others and that is in the face of a rise in material threats too and attacks on Muslim and Jewish communities among others, but it's sort of specifically calling out this anti-Christian bias. The same thing comes out. There was a task force report that just came out maybe a month ago now on eradicating anti-Christian bias and that also says that the FBI is considering a new threat category that would include violent extremism that derives from bias against Christian denomination. So it's again, sort of like highlighting this specific threat or perceived threat. And I think there's just a basic question as there is with all of these kinds of ideologies or viewpoints of how is this defined?
How do you define anti-Christianity, right? All of these terms are so devoid of meaning. They could be filled in basically however a member of the administration wants, however somebody undertaking investigation wants. So if you were clear about your desire not to be part of the Christian faith or a particular Christian denomination, does that count as anti-Christianity? If you said that you don't believe personally that Jesus died for humanity's sins, is that going to be interpreted as anti-Christianity? And I think that's one of the real dangers of this definition, it's not even really a definition, is that it's so broad and ambiguous and it really undermines constitutional protections for freedom of speech for notice and due process and really for freedom of religion. The Baptist Joint Committee put a statement out right after this task force report on anti-Christian bias came out basically saying religious freedom exists only when it's enjoyed by everyone.
And I think that's one of the other really important pieces here is that it is actually setting up this kind of exclusionary framework.
Alison Gill:
I think you're right and reading over the anti-Christian bias report, which by the way, is huge. It's hundreds of pages. They have a very extensive record of what they consider anti-Christian bias. A lot of it is frankly opposing a certain type of Christian conservative viewpoints on things like abortion issues or LGBTQ issues or church state issues. A lot of it is just like disagreeing with a certain sort of Christian nationalism that's taken sort of favored by this administration. It's not even really anti-Christian in any way that's conceivable. It's pretty fascinating.
Rachel Levinson-Waldman:
Right. And of course, those are issues that are contested within a lot of Christian denominations and faith groups, right, like where you would land on any given issue
Alison Gill:
Absolutely. I saw just recently that the US counter-terrorism strategy says the following, our national counter-terrorism activities will also prioritize the rapid identification and neutralization of violent secular political groups whose ideology is anti-American, radically pro- transgender and anarchist where we'll use all the tools constitutionally available to us to map them at home, identify their membership, map their ties to international organizations like Antifa and use law enforcement tools to cripple them operationally before they can maim or kill the innocent. We will do the same with state sponsors of such groups and those governments undertaking lethal plots on US soil or against Americans everywhere. And I read this, it seems outlandish. It seemed to me to be saying that they will identify neutralized secular groups even without them engaging in violence, like beforehand by mapping them, identifying membership and using law enforcement to cripple them. Do you read that this way and like is this realistic or what ability do they have to do this?
Rachel Levinson-Waldman:
Yeah, it's a pretty incredible document. I mean, it lists out what it calls three major types of terror groups, right? What says are narco terrorists, legacy islamist terrorists, that's the wording in the report and then quote unquote violent left wing extremists including anarchists and antifascists. And that is what it says are the three major threats that are sort of posed to this country. And as with so many of this administration's directives, it really says one thing but does another. So it says in the introduction that counter-terrorism operations will be apolitical, they won't be used to target our fellow Americans who simply disagree with us, but then it does go on to pretty much do exactly that. In answer to the question we're asking, and FBI is prohibited from targeting groups solely on the basis of ideology, that's under the Attorney General's guidelines, which were developed in the wake of the church committee's investigation of domestic intelligence gathering, that says that investigations have to be predicated on specific articulable facts that point to a federal crime, the scope of the investigation is supposed to match the threat.
And then there is this other guidance that FBI's domestic investigations and operations guide that echoes this point. I will say we have long criticized the guidance in those documents as being too weak. For instance, that really the prohibition is on targeting groups solely on the basis of ideology belief, right? That solely does a lot of work. There's a lot of wiggle room if you can point to something else and we have also long criticized the authorities that FBI agents have had to conduct surveillance to probe subjects to open investigations even with relatively low indicia of criminal activity, but even so these are important guardrails that are in place that the FBI has long looked to and pointed to and these orders certainly seem to be in significant tensions at least with the spirit of this guidance that has guided the FBI's activities.
Alison Gill:
We're not talking about statute though, you're talking about guidance issued by the AG, right? So that could very well change, right?
Rachel Levinson-Waldman:
It could, and it has. Since 9/11, it's been amended to loosen some restrictions. So absolutely there is a history in fact of the Attorney General's guidelines being loosened to provide more authority for the FBI.
Alison Gill:
So if let's say, I don't know, acting AG Blanche wants to sort of open this up, that's an area he could do so potentially.
Rachel Levinson-Waldman:
He could. Yeah. I think that is something that he could decide to carry out.
Alison Gill:
Wow. Okay. Just again, looking through this counter-terrorism document, it's hard to call it that. It's really quite amazing. It really never misses an opportunity to link a killing to one of their pet causes. For example, Charlie Kirk is described as being killed by a "radical transgender activist" here, which a claim is pretty questionable. It seems to me like they're using the situation to build a permission structure for investigation and other action. Is that what you see?
Rachel Levinson-Waldman:
Yeah, it's so interesting. Charlie Kirk's killing is cited in a bunch of documents, right? So in addition to this one, it's cited specifically in NSPM7, it's cited specifically in the Bondi memo. So that is sort of a basic permission structure. I mean, I think that's a good framing for this. It is literally being used as justification for this really unprecedented expansion of federal authority in order to target opponents of the administration and constitutionally protected activity. And I think it even goes a step farther in terms of thinking about what kind of activity it's trying to build this permission structure for. So the month after Kirk's assassination, Scott Bessent, the treasury secretary, appeared on the Charlie Kirk Show on the podcast and said that the administration's use of national security authorities to go after left wing activists was in response to various events, including the online response to Kirk's killing and he called the assassination of Charlie Kirk quote unquote a "domestic 9/11" and then said just as after 9/11 and Osama bin Laden was captured, we are operationalizing this here at Treasury, at the Treasury Department, and we're going to track down who is responsible for this.
So you see this kind of implicit, at least implicit comparison that's being made not just between Kirk's individual killer, but what the administration is seeing as some kind of movement behind it and Al-Qaeda, which is a wild comparison to make. I mean, there's so many dangers in this, but one of the pieces of language that you cited to is the kind of "radical transgender activist" language, right? So it's at the same time putting transgender individuals, putting groups that represent transgender people-
Alison Gill:
Hospitals.
Rachel Levinson-Waldman:
Hospitals, absolutely anyone providing gender affirming care or medical care or other kinds of support, psychologists who are working with transgender minors or others really in the crosshairs and obviously it should not need to be said, but being radical is not a crime and being transgender is not a crime despite the efforts that this administration and states are making to make it increasingly difficult to live safely as a transgender person.
Liz Cavell:
I just wanted your help, Rachel, like talking through the piece of this that is really breaking my brain, which is like it's so obvious in all these administration actions, right? The bondy memo, the NSPM thing, all the decrees, the counter-terrorism strategy, like they're naming these broad descriptions of basically political opponents, left wing ideologies and any ideology that you could describe that's not conservative Christian nationalism. And every one of these directives pays lip service to the idea that like they're harnessing the concept of domestic terrorism to claim all of the authority to do these investigative and surveillance and even enforcement things, but they're all paying lip service to the idea that like it's tied to action. It's motivating action, right? It's like violent secular leftist political groups or like specifically mentioning violent acts that kill or maim the innocent people other than the obvious kind of knock on effects that you were talking about, like chilling groups like ours frankly, like groups, normal nonprofits that are operating for normal educational or even charitable purposes, like not doing anything violent or committing anything close to criminal conduct or actions that could be considered criminal, terroristic or violent in any way.
Do you think there isn't maybe a plan is too far of a reach, but like do you think there's an idea from the administration that the leap from using this just to kind of chill or intimidate or decrease trust in civil society versus like this actually is going to someday lead to a place where we can just somehow do law enforcement on regular nonprofit organizations that have this ideology but are not engaged in criminal conduct or violence What is the connection there?
Rachel Levinson-Waldman:
Are they going to undertake actual investigations, right? Not just use it as a cudgel but literally open up files.
Liz Cavell:
Right. Like wield all these tools that are described as tools for investigating criminal activity, yes, motivated by this ideology and all that is problematic from a First Amendment standpoint because those are protective viewpoints, but like we're also talking about conduct. Without the conduct, the violence, how do you think the administration would purport or do you think they would purport to be able to use these tools they're creating or saying that they have to, yes, actually do these things to regular nonprofits that are not engaged in criminal conduct. And I know that's a broad question because they're harnessing every agency's power. So the IRS could mess with our tax exempt status, right? But that's not the same as like the criminal investigative powers that would seem to need some kind of conduct or violence to kick off.
Rachel Levinson-Waldman:
I think that's a great question and I will say, I mean, it's one of the things also I feel like I have spent so much time with these various executive orders and sort of puzzling through them and they do all sort of use some of the right language. They talk about violent activity and political violence and threats, right? They are sort of gesturing at actual violent conduct at least in part and yet they're also pointing quite explicitly just to viewpoint. I mean, I think you're asking the right question like, what does that mean? How are they going to like smush all of these things together into actual investigations? I think in thinking about the answer to that, there are a couple of other things that have happened that are worth looking to. One is the designation of four, I believe, foreign groups that are being called Antifa aligned and I think they kind of identify themselves in some way as being Antifa aligned, designating them as foreign terrorist organizations.
There is in fact a statutory framework to designate a foreign organization as a foreign terrorist organization. It does not raise the same First Amendment issues. There are other First Amendment issues that come up about when domestic groups might be working with them and this is something the Supreme Court has considered because of what are called these material support laws, because it is a legal right to give material support, which includes almost anything and certainly any Iota of financial support to a designated FTO, which is the shorthand for a foreign terrorist organization. I think a lot of people think that the designation of these groups as FTOs and my recollection from looking at the coverage about them is that they are groups that had in fact engaged in violence and some of them significant violence, but largely not directed at Americans and that's typically when organizations are designated as FTOs is when they actually pose some kind of domestic national security threat or they're threatening Americans abroad that is not the case by and large for these organizations.
And I think there is a strong theory that the justification or at least a significant justification for that designation is to be able to draw a thread between domestic organizations and what are now these FTOs. So if there's some domestic organization that, and this is really stretching it, but if there is some domestic organization that is deemed to be aligned with Antifa or generally supporting Antifa and/or any of these ideologies or viewpoints that have by fiat been defined as connected to Antifa, then that is somehow providing material support for these organizations is connected to them. Any thread that can be drawn to a designated FTO honestly is really dangerous for an individual organization, right? It allows investigations, it could allow the use of, well, basically would allow the use of foreign intelligence gathering authorities like under the Foreign Intelligence Surveillance Act. Once you're in kind of that universe of foreign terrorism and something that is ostensibly directed at a foreign threat, it unlocks enormous powers, right?
I think that's one of the answers.
Alison Gill:
Just on that front, you're bringing to mind for me the Open Society Foundation and George Soros, I'm sorry, who's a big boogeyman on the other side on the right who gives money to a lot of different causes and is being accused of funding some of these groups because if they can point, like you said, a thread to that org that funds a lot of the nonprofits, a lot of nonprofits in the US get funding from him, right? So that might open up some of those orgs to further investigation. Is that right?
Rachel Levinson-Waldman:
Yeah. I think that's fair. I think finding any threat or any connection to a foreign group that's under investigation is quite powerful and in some ways quite beneficial for the government. I think one of the other examples that I would point to, and this is about individuals, but I think it's a useful way of thinking about how broadly these domestic terrorism authorities can be used is that I don't know if the Prairieland investigation and prosecution has been on your radar, but this was an investigation by the FBI of I believe nine activists in Prairieland, Texas who had gone out on a noise demonstration at an ICE facility. The facts are complex at least one person went with a weapon, ended up shooting and hitting an officer in the ear. So that is an entirely appropriate act to prosecute as a violent crime, but it was all put under the umbrella of domestic terrorism and Antifa.
Some of them I believe sort of said that they had some alignment with Antifa, some of them were dressed in black and it was kind of the way that conspiracy laws can be used to sort of sweep everyone in. The domestic terrorism laws are even more powerful because it can just be these people shared this ideology and thus they're kind of united under this rubric of domestic terrorism. The DHG actually got a number of prosecutions that I think one of the most alarming aspects of that prosecution is that one of the charges was for transporting Antifa materials, which was literally a box of 'zines, right? It was printed out and stapled radical magazines as one is allowed to do under the First Amendment and that was one of the domestic terrorism charges that people were indicted and convicted of.
Alison Gill:
And convicted of.
Rachel Levinson-Waldman:
Yeah. And so I think that's a window into it feels like there shouldn't be a basis for that. That feels so far beyond the realm of domestic terrorism and anything that should be charged as a crime and yet it was in front of a jury that was sympathetic. And so I think there are sort of these like warning signs that are going off in various places.
Alison Gill:
Just building on this conversation, sort of what Liz was saying, I think another aspect of this is once they open the door through these investigations, I mean, American law is so deep and so complicated that you can often find things to charge people on. It springs to mind Leticia James, the attorney general for New York who was subject to a politicized prosecution for some real estate dealing she had in Virginia. And it's the most minor thing ever. It has to do with like a form and whether she signed it one way or another way, it's really meaningless in any sense, right? And just by digging in deeply enough, they were able to find this and move forward with a prosecution against it, which has since been dismissed, but they were able to find this and move forward with it. And that reminds me of like if they were to sort of go after nonprofits, targeted nonprofits in that really deep way, like our nonprofit tax rules are very complicated and very easy to like find minor mistakes with, or like definitions of what counts as lobbying are very … There's a lot of things in there that you, if you press hard enough, you could maybe bring a case.
And so that worries me that that is the goal here is once you crack open these orgs that can investigate them, you can find stuff even that's minor to go after these nonprofits and then states have to spend money defending themselves. They have to spend money on investigation and responding to it and that depletes them even further.
Rachel Levinson-Waldman:
I think that's exactly right and it sort of puts me in mind right there's this quote, show me the man, I'll show you the crime.
You can find a reason and a way to go after almost anyone. And I think you're right in terms of sort of how Byzantine the tax laws are. There's a reason that there is actually statutory protections against weaponizing the tax laws including specifically, this is also post Watergate, that the president and vice president and members of the cabinet are not supposed to direct that the IRS open an audit or other kind of investigation of a particular group because it is such a powerful tool and it's so easy to misuse. And I think that's right. If a target is identified, once sort of the digging begins, I think potentially anyone could be vulnerable.
Alison Gill:
Another thing about this, going back to the counter-terrorism strategy, I found remarkable, you mentioned it listed three types of major terrorism that threatened the United States. Not on that list is right-wing terrorism at all, even though it's pretty significant in the US. Can you maybe talk about that a little bit?
Rachel Levinson-Waldman:
Yeah. It's a really significant gap there and it's a gap that others have noted and it's quite striking given the fact that right wing violence has consistently been identified as a significant threat. So near the end of the first Trump administration, I mentioned Christopher Ray before, President Trump's FBI director in his first administration told a Senate committee that the majority of the domestic terrorism cases that the FBI had investigated were motivated by what he said, some version of what you might call white supremacist violence a couple of months later in oversight hearing Ray referred to the events of January 6th as domestic violence quite notably in January 2024, the National Institute of Justice, which is the research evaluation technology arm of the Department of Justice published a report finding that militant nationalistic white supremacist violent extremism has increased in the United States and said that the number of far right attacks continues to outpace all other types of terrorism and domestic violence extremism.
And part of the reason I bring up that report is because it was deleted from the website of NIJ of the National Institute of Justice in September 2025, just a week or two before the executive orders on Antifa and domestic terrorism were published. And so as you say, despite this kind of history of recognition of the threat that is posed by right wing violence, the counterterrorism strategy doesn't list it as any kind of threat, let alone a major threat. And even with, I mean, commentators have observed there has been some uptick in left wing violence, it is still a pretty incredible omission from the report.
Alison Gill:
And right wing violence is still many times greater than left wing violence in this country.
Rachel Levinson-Waldman:
I suspect that's right.
Alison Gill:
I also, I don't know, I can't help but mention this, this is just recent development so it's not in my … I'm deviating from our outline a bit, but like this recent weaponization fund where the president is trying to set aside $1.8 billion to give to people that were previously convicted under January 6th and other people that unfortunately have suffered weaponization or conviction for crimes at the behest of government. I think the combination of both not recognizing right wing violence and creating a fund that in many ways kind of incentivizes it, these things are linked, aren't they?
Rachel Levinson-Waldman:
And this sort of brings to mind the debate I think this was before President Trump was elected the first time, right? Where he said to the Proud Boys
Alison Gill:
To
Rachel Levinson-Waldman:
Stand back and stand by, right? I mean, it goes back to what you were saying about the permission structure, right? Is sort of this consistent sometimes explicitly and sometimes with a wink and a nod, I think laying the groundwork for at least potential violence.
Liz Cavell:
Well, we're focused today with Rachel's expertise on like the government purporting to harness surveillance and law enforcement powers kind of in this arena in terms of like weaponizing against nonprofits, but I do think it's significant and especially for nonprofits like ours as we think about the powers of the administration to target nonprofits about the sometimes adjacent or working together with law enforcement, but not always, but the powers of granting or revoking tax exempt status That is also an enormous power that the administration holds over pretty much all of civil society and like that is one where I do think unlike my big broad question about like violence and conduct and making those connections to justify criminal law enforcement, it seems like there's a lot broader power to harness the whole domestic terrorist label in a way that is kind of outside of checks and due process under the tax code and that threat against nonprofit organizations is actually quite immediate.
It wouldn't require spinning up a criminal prosecution.
Rachel Levinson-Waldman:
Yeah. I think there's sort of an open question there. So there are three basic grounds for revoking an organization's tax exempt status. It can be that the activities no longer qualify as tax exempt. So it no longer has a charitable mission or it's undertaking much more political activity than it's supposed to, something like that. The second is if it has failed to file 990s, right, sort of basic disclosure documents for three years in a row, or if it engages in activities that are illegal or that undermine a clearly defined and fundamental public policy and that one is where it feels like there's a lot of play in the joints that language doesn't stand alone. So in addition to the statute, there's guidance that the IRS has, there's some Supreme Court interpretation of what clearly defined and established public policy looks like, but it does seem fairly clear that the combination of NSPM seven and the Antifa order and then the Bondi memo are in effort to couch a pretty wide variety of constitutionally protected viewpoints as activities as either a legal or counter to public policy or both.
And so I think I can't predict what that's going to look like, but I think it's a fair question to raise in terms of how that fairly considerable power could be used or at least could be leveraged in an attempt to strip organizations of their status.
Alison Gill:
Really helpful. Rebecca, do you want to take us to the last question?
Rebecca Markert:
Yeah, I can do that. So I'm curious to know what we can do. Is there anything that nonprofits or other organizations can do to prepare themselves against being targeted by this administration? Is there anything that members of the general public or listeners who are listening to this that they can do about this situation?
Rachel Levinson-Waldman:
Yeah. I mean, I want to be very clear that I am not counsel for the Brennan Center. I'm not counsel for any other organization so I won't hand out legal advice, but there's good guidance for nonprofits that would serve them in good stead, right? Whether it's to essentially to avoid being targeted, but to sort of prepare for the risk that any organization in this space could be targeted and a lot of these things probably most nonprofits are doing or already familiar with, right? So being sure that all of their activities are in line with their exempt mission, being sure that all of their required filings and public disclosures are in good order and their finances generally complying with all of the lobbying restrictions and other election related reporting and practices, especially since we're in an election year, training employees and board members on how to use social media and other public facing platforms and especially being clear about who's authorized to speak for the organization and on what topics.
Certainly if they're involved in protests or similar kinds of activities, being very clear that they're not asking participants to hinder law enforcement, that they're not endorsing doxing, which has been a big focus of the administration of those memos, kind of promoting the release of private information about law enforcement officers, should use good digital security practices. There's some good guidance on that from the charity and security network. Certainly any organization doing international grant making should be especially careful because of that focus on foreign organizations, it's especially important. The last that I've seen is just having a response plan in place, right? So if the IRS or the Department of Justice or another agency comes knocking, they know how they're going to respond, they know who they're going to reach out to for help, including whether that's outside counsel if they have it so they're not kind of scrambling in the moment.
And you asked about members of the public, I think seeking out information from reputable sources, paying attention to the data and the facts, continuing to support organizations that are providing the services in their communities that they care about or are working on issues that they care about and also honestly, they can ask Congress to hold hearings about these efforts that the administration is undertaking and especially how all of these directives are actually being carried out.
Alison Gill:
I want to just highlight one of the things you said, which was to donors to continue to support organizations that they care about in their communities and nationally and issues they care about. And that's important because there's so much of this is meant to intimidate donors, intimidate people to not participating in society, to stop showing up at your local meetings or providing support. And there's really been actually increasing good law about nonprofits protecting their lists of donors, right? Recently there was just a Supreme Court, I think, order on this and there has been increasing. So that is not something that's easily obtained even if there is sort of a process like this like investigation. Is that right?
Rachel Levinson-Waldman:
It's a good question. So you're right. I mean, the Supreme Court case law going back basically to the McCarthy era, right? Saying that membership lists of nonprofits are constitutionally protected by the First Amendment. And then as you say, more recently, much more recently, there was a Supreme Court opinion holding that donor lists are constitutionally protected. I think once you get into a criminal investigation, those are sort of could a, especially on the donor list, that was specifically the state of California was just trying to compel disclosure of those donor lists. I think that could start to look different if a predicated criminal investigation were opened and then the FBI is using a subpoena or is using a warrant to get information, but certainly on a basic level there are powerful constitutional protections for the identification of members of and donors to nonprofit organizations.
Alison Gill:
That's helpful. Thank you.
Rebecca Markert:
Well, we would just want to thank you so much, Rachel, for taking the time this afternoon to speak with us about this really important issue. Something I think that's been on a lot of people's minds is they're seeing the news and those of us who want to support nonprofits and activists in general. So thank you so much for taking time this afternoon.
Rachel Levinson-Waldman:
Thank you for having me. I really enjoyed this.
Rebecca Markert:
So that is it for today's episode. I'm Rebecca Markart.
Alison Gill:
I'm Alison Gill.
Liz Cavell:
And I'm Liz Cavell. If you haven't already, please follow us on our socials, Facebook, Instagram, Blue Sky and X. Please also remember to let us know how you're liking our show by leaving a review. This is the best way to help new listeners find our show, so please review us. You can also find us at we-dissent.org. Thanks for listening.
Rebecca Markert:
We Dissent is a joint production of the Freedom From Religion Foundation, the National Women's Law Center, and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio engineering is provided by audio for the arts based in Madison, Wisconsin. Thanks for listening.
