Congressional Republicans and former Trump appointees have spent the last year building out their response to the movement protesting Israel’s war in Gaza, and now that Donald Trump is returning to the White House they warn that protest leaders, activists and those who help them raise money could face an onslaught of federal investigations and possible indictments.
An NBC News review of congressional hearings and letters, along with lawsuits filed by organizations led by former Trump officials, provides a preview of which federal laws a second Trump administration could use when pursuing investigations and potential prosecutions.
Judging from what has been pushed thus far, there are several legal measures most likely to be used once Trump returns to Washington. One would be deporting foreign college students in the U.S. on a visa after they’re found to have openly advocated for Hamas or another U.S.-designated terror group, or after they participated in an unauthorized campus protest and were suspended, expelled or jailed.
Another measure would be to pursue federal prosecutions of demonstrators who block synagogue entrances or disrupt Jewish speakers at events. A third approach is to charge protest leaders and nonprofits that aid in fundraising for protest groups with failing to register with the U.S. Justice Department as an “agent of a foreign principal.” And a fourth avenue is to open investigations into protest leaders who are in direct contact with U.S.-designated terror groups while advocating on their behalf.
The multifaceted law enforcement approach is a marked departure from the Biden administration’s response to the protest movement. Some of the nation’s leading civil rights groups told NBC News that they are gearing up for a flood of legal battles to protect the protesters.
“Trying to predict what Trump will do is a fool’s errand. We have to be prepared for the most extreme version of what he’s threatened,” said Ben Wizner, the director of the American Civil Liberties Union’s Speech, Privacy and Technology Project. “We have to take him both literally and seriously.”
‘A new sheriff in town’
Biden administration officials have told NBC News that prosecuting speech-related crimes related to the anti-war protests is not a high priority for the current Justice Department, nor is seeking out student protesters on foreign visas a top concern for U.S. Immigration and Customs Enforcement.
“President Trump will enforce the law,” said Sen. Joni Ernst, R-Iowa, in an email to NBC News. Ernst recently asked the FBI to open an investigation into a pro-Hamas student group at Columbia University called Columbia University Apartheid Divest. A member had threatened “Zionists” on social media, which the organization had initially distanced itself from after a strong public outcry but later supported in an Instagram post. CUAD also has handed out pro-Hamas flyers that circulated around campus featuring masked men holding weapons.
“There is a new sheriff in town,” Ernst said. The FBI has yet to respond to Ernst’s request, her office said. An FBI spokesperson did not immediately respond to request for comment. A Columbia University spokesperson said CUAD is not a recognized organization by the school and the flyers were under investigation. Members of CUAD declined to comment.
Reed Rubinstein, who held high-ranking positions in both the Justice Department and the U.S. Education Department in the first Trump administration, is now a senior vice president at America First Legal, a public policy law firm in Washington, D.C., founded by former Trump adviser Stephen Miller. (Miller is expected to return to the White House as a deputy chief of staff for policy.)
Under Rubinstein, America First Legal has in the past year filed four lawsuits that provide a glimpse into how the Trump administration could differ from its predecessor. America First Legal alleges in the suits that the State Department, the Justice Department, the Department of Homeland Security and the Department of Education have protected pro-Hamas extremists.
In court papers and in letters to several federal oversight officials, America First Legal has also said it believes the Justice Department should have forced several leaders of pro-Palestinian groups to report themselves under the Foreign Agents Registration Act, known as FARA, which requires individuals acting as “an agent of a foreign principal” to register themselves with the Justice Department.
It has also accused the Department of Education of not following Title VI regulations, which prohibits schools that accept federal funding from allowing on-campus discrimination based on race, shared ancestry or ethnic characteristics including being Jewish.
“There’s a difference between lawful speech and unlawful conduct,” Rubinstein told NBC News. “Law enforcement has an obligation to act.”
Although the lawsuits haven’t progressed in court, they provide a possible road map for how Trump-minded prosecutors could respond to the protest movement.
So far, only the Education Department has responded to the allegations, court papers show, and said the agency doesn’t have sufficient evidence to respond to the claims that policies aren’t being enforced. The Justice Department didn’t respond to a request for comment. Spokespeople at the State Department, the Department of Homeland Security and the Department of Education all said they can’t comment on pending litigation.
Rubinstein in an interview brought up an additional law he expects a second Trump administration could enforce. Known as the FACE Act, the law prohibits people from using force, threats or intimidation while blocking entrances of places of worship. Earlier this month, protesters with SJP Chicago gathered at the Chicago Loop Synagogue to demonstrate against an Arab Israeli speaker who had served in the Israeli military. Videos posted to social media showed demonstrators blocking the synagogue’s entrance, banging on the windows and getting inside.
“You do not have the right to deny somebody the ability to congregate in a church or synagogue,” Rubinstein said. “We would like to see the Department of Justice do its job.”
A spokesman for the FBI’s Chicago office said its policy is not to confirm or deny the existence of an investigation. The Chicago Police Department said it arrested two protesters and charged them with trespassing and one with property damage, both misdemeanor charges.
SJP Chicago did not respond to a request for comment. But in an Instagram post, it said protesters were not being anti-Jewish. “Zionist have scrambled to throw together a narrative that these acts were anti-semetic and fueled by hate (what’s new).”
An expected flood of legal battles
Some of the nation’s leading free speech and civil rights groups say they are gearing up to fight a new Trump administration and any attempts to go after protesters or their funders. Since 9/11, organizations including the Center for Constitutional Rights (CCR), along with the ACLU, the Council on American-Islamic Relations and the Knight First Amendment Institute have represented Muslim Americans and pro-Palestinian activists in cases involving free speech, surveillance or abuse.
Edward Ahmed Mitchell, CAIR’s deputy executive director, argued that the Biden administration failed to enforce FARA against leaders of pro-Israel groups. Mitchell said both Trump and President Joe Biden single out pro-Palestinian activists with either a lack of enforcement or with too much enforcement.
“Just as Americans who peacefully marched, protested and lobbied against segregation, the Vietnam War and South African apartheid were not deterred when government agencies spied upon, smeared, arrested and brutalized them,” Mitchell said, “the college students, human rights activists and everyday Americans peacefully opposing the Gaza genocide have not been deterred by such government abuses and, God willing, will not be deterred by such abuses in the future.”
Both CCR and the ACLU told NBC News that their concerns go beyond what the administration could do to crack down on just the protests. They pointed to the possibility that a Republican-led Congress could pass a bill currently under consideration that would strip away the tax-exempt status of nonprofits that a Trump appointed treasury secretary designates as providing material support to “terrorist supporting organizations.” CCR also said it worries a second Trump administration could wrongly level accusations of failing to register as foreign agents against protest leaders and nonprofits that aid protest groups with collecting donations. CCR is also watching whether a Trump Justice Department will charge certain activists accused of supporting Hamas and other U.S.-designated terror organizations with violating a U.S. anti-terror law that prohibits advocating for terror groups while in coordination with them.
“We are prepared for the Trump administration coming in and changing the game, particularly around the question, ‘Where does speech fit into this?’” said Vince Warren, CCR’s executive director. “To the extent that the Biden administration drew a line between speech and actionable conduct, we don’t think that the Trump administration will do that at all.”
CCR is also concerned about the plans laid out in Project Esther, an initiative backed by the Heritage Foundation, the conservative think tank that published Project 2025. Project Esther urges law enforcement to use a plethora of federal and state laws to dismantle what it terms the “global Hamas Support Network” using racketeering laws — used to break up the mafia — along with anti-terrorism and anti-hate speech laws.
“They will throw any type of spaghetti up against the wall,” Warren said.
The Knight Institute said although it expects the new Trump administration to aggressively police speech, it is prepared to fight back. Earlier this month, Knight successfully rebuffed the Biden Treasury Department, which had blocked a New York based nonprofit from organizing an overseas conference with Hezbollah members, arguing it can’t work with people sanctioned for ties to terrorism groups. The agency reversed course and settled the case earlier this month after Knight argued that an academic exchange of ideas could not violate anti-terror laws.
“If there’s one thing the First Amendment protects, it’s the right of Americans to criticize their own government’s policies,” said Jameel Jaffer, the Knight Institute’s executive director.
The ACLU’s Wizner struck a similar note, saying: “The courts have made clear that the First Amendment protects all manner of controversial advocacy, including advocacy of violence, so long as the speaker isn’t actively inciting imminent harm,” Wizner said.
Impact on college campuses
Kenneth Marcus, who ran the Department of Education’s Office for Civil Rights during the Trump and George W. Bush administrations, now leads the Louis D. Brandeis Center for Human Rights Under Law, one of the leading civil rights organizations focused on Jewish students. Over the past year, the center has sued a growing list of universities arguing officials failed to stop what it sees as widespread antisemitism on campus.
Marcus said he has met with Department of Education officials requesting an expansion of civil rights enforcement to protect Jewish students on campuses. The Department of Education didn’t respond to questions regarding Marcus’ concerns.
“We know that President Trump has repeatedly expressed concern about the campus situation,” Marcus said.
During the presidential campaign, one of the 20 promises in the preamble to the Republican Party platform was to “deport pro-Hamas radicals and make our college campuses safe and patriotic again.”
NBC News reported in August that the Biden administration said it was not targeting visa revocations for foreign students who may have engaged in speech-related offenses or participated in unauthorized campus protests and had not terminated any university or college student visas due to protest activity related to the Israel-Hamas war.
Trump’s return to Washington could lead to possible attempts to revoke student visas for foreign students who openly support Hamas or other U.S.-designated terror organizations, Marcus said. Marcus also anticipates more intervention from the Justice Department when Jewish students say they are being targeted on campus.
At a campaign stop in September, Trump said that at the start of his second presidency, he would inform universities that if they allow violence and threats against Jewish students, they “will be held accountable for violations of the civil rights law.”
“My administration will move swiftly to restore safety for Jewish students and Jewish people on American streets,” Trump said.
