Chad Marlow takes a critical look at President Trump’s late September National Security Presidential Memorandum (NSPM-7) authorizing government-wide investigations into nonprofits, activists, and their donors and funders using vague and overbroad labels of “terrorism” and “conspiracy against rights.” He also explores what pro-democracy groups and state governments can do to protect groups and individuals’ right to dissent and free speech.
SCOTT HARRIS: We begin our show this evening by welcoming Chad Marlow, senior policy counsel with the ACLU and we’re glad Chad could be here this evening to talk about an important presidential memo. Chad, thanks for being here.
CHAD MARLOW: Thanks for having me, Scott. It’s a pleasure.
SCOTT HARRIS: So Chad, on Sept. 25th, president Trump issued a presidential memorandum referred to as NSPM-7, which authorizes government-wide investigations into nonprofit groups, activists and their donors and funders using vague and overbroad labels of “terrorism and conspiracy against rights.” The memo orders Joint Terrorism Task Forces, which are FBI-operated partnerships between federal law enforcement and intelligence agencies, as well as state and local law enforcement to investigate and disrupt groups and individuals under the guise of addressing political violence and domestic terrorism. That was a description I got directly from one of your ACLU press releases on that memo from President Trump. What does this memo mean and the ideology behind it mean for individuals and groups that criticize and oppose President Trump’s policies? And I say that in terms of the protesters in the streets all across the country, political action committees and donors that are frequently targeted by Trump and his allies—like George Soros.
CHAD MARLOW: Yeah. Well, Scott, I think to most people, to most of your listeners, they may not be familiar with what we refer to as NSPM-7, but I think what they are very familiar with is that the president of the United States has very little tolerance for people who do not share and fully embrace his views and are not enthusiastically supportive of his agenda and him personally. And so in that light, him handing down a memorandum instructing the federal government, in particular the attorney general and the secretaries of state, treasury and homeland security to identify nonprofits and charitable foundations whose work does not completely align and take a gentle knee to Trump and his agenda as what he will refer to as people who are promoting domestic terrorism and political violence.
But I do think you and your listeners and a lot of people out there realize that this is Trump just trying to pound a square peg into a round hole, which is to say that he still has enough acumen, I think to not say, “I’m going to bring the entire force of the federal government down on anyone who dares disagree with me.”
So he couches it in these vague terms as you point out, like terrorism and political violence, knowing that when it comes to enforcement, loose terms equal latitude. And so that gives him the opportunity to go after whoever he wants to tie into those groups. And you mentioned protesters. One of the things that the memorandum specifically references as the type of politically-motivated terrorist acts that he’s going to clamp down on—so you’re expecting big things—he includes trespassing. He includes civil disobedience, which he calls civil disorder.
And in order to rope in nonprofits and charitable institutions, he says it’s not only people who engage in those acts, but people who in any way support them, inspire them, talk about them. And so that is kind of the world that we’re looking at—is anyone who attempts to organize a protest can come into the bull’s eye of this. Any nonprofit who attempts to go out and support people who want to have a conversation about the direction of our country and God forbid, may have an issue with the direction it’s going. Those unfortunately are all in the crosshairs of this memorandum.
SCOTT HARRIS: Thank you for that, Chad. We’re speaking with Chad Marlow, senior policy counsel with the ACLU and we’re talking with him about the National Presidential Memorandum, NSPM-7. And Chad, when it comes to this presidential memo, it’s certainly in conflict with the First Amendment of the U.S. Constitution. But what I’m concerned about and I know many others are, is that we have a U.S. Supreme Court with a very conservative majority that’s backed Donald Trump to the hilt in some very key issues, including giving him total immunity from criminal prosecution for anything he does in office. So I’m worried about this memo even though it is in conflict with the First Amendment.
CHAD MARLOW: And that’s not an unreasonable perspective. I mean, I think that one would hope that our Supreme Court even it has lines that it will not allow the president to cross. I think that sometimes it’s anyone’s guess as to where those lines are. But I also want to emphasize the fact that this memorandum is not just a threat with respect to the people who actually get investigated and prosecuted under it. But it’s actually a much broader threat than that because this memorandum is designed to have its greatest impact by sowing fear. Fear amongst these nonprofits. Fear amongst the charitable institutions. Fear amongst the people who work for them like me. People who donate to them. People who are members of them. One of the things that he actually says in the memorandum is that he wants the IRS commissioner, for example, to go after tax-exempt entities who he doesn’t agree with.
But it’s not just, he doesn’t just stop there. He also says that one of the things that going after them should include, and this is a quote, is referring such organizations and the employees and officers of such organizations to the Department of Justice for investigation and possible prosecution. And that is specifically designed to make people afraid to work for nonprofits that Trump doesn’t like because they could go to jail for doing so. So even short of investigating prosecuting people, Trump wants to sow fear, fear of even working against him, speaking out against him, doing anything that could draw his attention.
And so, I think that where a certain percentage of the people who don’t agree with him may end up being direct targets. I think everyone who disagrees with him, who is directly or indirectly involved with nonprofits or charitable institutions are being told, maybe you better sit this stuff out lest you get in trouble. And it’s that chilling aspect of it, regardless on how courts ultimately decide that I think is a win that Trump is looking for. To instill fear. And I think if you look at all of what he’s done broadly against people who oppose him, it’s very consistent with that approach.
SCOTT HARRIS: Yeah. Well, in combating that, you wrote an article titled, “Governors and Mayors Can Protect Nonprofits from Trump’s National Security Memo NSPM-7 that Labels his Opponents as Domestic Terrorists.” Tell us a bit about your advice to governors and mayors of cities who can do something to be proactive, to defend citizens who are just exercising their constitutional rights from the effects of this memo.
CHAD MARLOW: Yes, and so one of the interesting things that appears in this memorandum is an acknowledgement that the people who are effectuating it in particular, as you mentioned, the Joint Terrorism Task Force, who are kind of the leading the effort are going to have to work with state and local law enforcement in order to get what they need to go after these nonprofits and charitable institutions. That’s not because they want to work with state and local entities, it’s because they have to. Because a lot of the on-the-ground enforcement capabilities and even more important, the information they need to try to dig up some pretextual reason to go after these are in the hands of state and local governments. And this can be everything from highly sensitive and kind of on its face troubling surveillance data. But it could also be driver’s license information. Tax records. Business information. Employee information.
And so, what we are saying to governors and mayors is if this concerns you, if what Trump is doing with this memorandum concerns you, you can do something about it right now. If the governor of the state of Connecticut is listening to this program; if mayors anywhere in the state of Connecticut and I know you reached further than that, so let’s talk about Long Island, New York, Rhode Island. Any of these places want to do something right now as they listen to this broadcast, they can. And what they can do is they can sign an executive order that says—if it’s a governor, “My state” if it’s a mayor, “My municipality will not cooperate with this order.”
And I want to drill down a little bit deeper on that because while we may be talking about general law enforcement cooperation in particular, there is a risk with all of this highly private data being given over to the fed —so again, as I said—can go through it and try to dig up something to give them a pretextual reason to go after one of these targets. It is a pretty common practice.
I used to work for a large municipal agency in New York City. I can tell you it’s a common practice amongst all agencies, at all levels of government to share information and data with one another. They do this because one, it’s a relationship exercise. If an agency asks me for data and I say, “yes,” they’re going to like me more. If I say “no,” they’re going to like me less and I would prefer them to like me if I’m an agency. There’s also a mutual back-scratching element to it. If I give them the data or information they ask for this week, they’ll be more inclined to give me the data and information I ask for next week. And that’s generally a reasonable practice.
But in light of this presidential memorandum, it’s also a dangerous practice. And so what this executive order will say is to anyone who works for state government and municipalities—if it’s a governor or just a municipality if it’s a mayor—if you have any inclination that the information that you are being asked for is to go after nonprofits or charitable institutions or their donors, their members, their employees, their leaders, anyone—you are to say “no.” If they actually have a case to make, let them go to judges. Let them go to the courts and convince a judge that this isn’t a political witch hunt. And if they do and a judge says this is valid, looking through kind of a neutral court lens, then of course you’ll give them the information. But short of that, they’re not going to cooperate.
And again, I can’t emphasize this enough, so I’m going to say it again. Governors and mayors can do this right now. The ACLU has written model executive orders for governors and model executive orders for mayors. All they have to do is call up their state affiliate and ask for a copy. We’ll get it to ’em immediately and they can start protecting people today.
But there is no single thing that any of us can do to completely wipe out the power of this presidential memorandum. But they are absolutely things that our governors and mayors can do to make it far more difficult to effectuate. And I think we all need to be asking our governors and mayors, one, do you think this is a problem? And two, do you have the courage to do something about it? And all that requires them to do is lift up the most powerful weapon in the arsenal of democracy and that is their pens and sign an executive order. And people will be safer the minute after they do so than they were the minute before.
SCOTT HARRIS: Very powerful. I’m glad we got a chance to talk about this tonight and we’ll certainly try to get this information out far and wide. I know you’re short on time this evening, Chad, so thank you so much for spending time with us and leave our listeners with the website where they can get more information about what we’ve been talking about and the other important work the ACLU does.
CHAD MARLOW: Yeah, they can just find us—very easy to memorize. It’s just aclu.org and they can find us there and learn a lot about all of the things that we’re undertaking to protect American civil rights and civil liberties.
SCOTT HARRIS: Thanks so much, Chad. I’d love to stay in touch with you about this and the other issues you work on. Appreciate it.
CHAD MARLOW: Absolutely. Thank you so much, Scott.
SCOTT HARRIS: Good night. That’s Chad Marlow. He’s a senior policy council with the ACLU. This is Counterpoint. Please do stay tuned.
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