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No, Trump Didn’t Make an Ex Post Facto Law to Punish People for Destroying Monuments

WASHINGTON, DC - MAY 22: U.S. President Donald Trump makes a statement in the briefing room at the White House on May 22, 2020 in Washington, DC. President Trump announced news CDC guidelines that churches and places of worship are essential and must reopen now.

In today’s edition of Our President Obviously Never Learned Middle School Civics and Government, Donald Trump went on a tweetstorm this morning to announce that he had “authorized” the federal government to arrest people who vandalize monuments “with up to 10 years in prison.” He even managed to make people think that he was making constitutionally prohibited ex post facto laws.

The tweets were a follow-up from an interview on Monday, when Trump vowed to sign an executive order demanding that cities “guard their monuments” in the wake of anti-racism protesters who have been toppling Confederate statues.

In his zeal to rush to the defense of monuments, Trump accomplished little more than a meaningless self back-pat. While we’re talking statues and statutes, let’s follow along with serpentine path of Trump’s failed logic.

For starters, any executive order on this topic is utterly impotent. Trump didn’t “authorize the federal government” to arrest people under the Veteran’s Memorial Destruction Act. That act has been on the books since 2003, and it already authorizes fines or imprisonment for the destruction of veterans’ memorials on public property. So, the feds have had the power to protect statues for a while now. Thanks, though, Don.

Local law enforcement also already has the power to protect property from being destroyed illegally – and they didn’t even require any special law. However, because of that whole federalism thing (on which I’m guessing the president is also a little fuzzy), Trump has no power to order local or state government to act as a monument security force serving at his personal beck and call.

Speaking of monuments and the law, though, a plain reading of the text suggests that the Veterans Memorial Destruction Act wasn’t aimed at glorifying the Confederacy. The act, as law professor Steven Vladeck points out, protects “service of any person or persons in the armed forces of the United States.”

I’m pretty sure the Confederacy doesn’t count as “armed forces of the United States,” what with that whole insurrection and treason thing they had going on. Across the country, statues of confederate soldiers, slave owners, and other controversial historical figures have been coming down; some have been officially removed by local authorities, while others have been forcibly taken down by protesters. Many, including Trump, have been asking: Who’s next, George Washington, Thomas Jefferson, Andrew Jackson, Ulysses S. Grant?

Although Trump proclaimed to have taken action, “per the Veterans Memorial Preservation Act,” that Act appears only to protect “any structure, plaque, statue, or other monument on public property commemorating the service of any person or persons in the armed forces of the United States.” Therefore, even if Trump were looking for an existing statute to protect monuments to the personal heroes of MAGAmerica, this one wasn’t the right choice. Unless the statute in question was of a U.S. veteran in military uniform, the Act arguably wouldn’t apply.

Perhaps the most glaring problem with Trump’s tweet, though, was that he bragged that his new order “may also be used retroactively for destruction or vandalism already caused.” The use of the word “retroactive” sent off alarm bells for those (apparently unlike the president himself) familiar with the concept of ex post facto laws.

Article ISection 9 Clause 3 of the U.S. Constitution prohibits Congress from passing ex post facto laws. Section 10 of Article 1 prohibits the states from doing the same.

Generally, an “ex post facto” law is one that retroactively makes conduct illegal that had not been illegal when it occurred, or one that retroactively increases the penalty for particular conduct. The case law on ex post facto statutes is nuanced and complex, but in a general sense, the basic idea of ex post facto is simply prohibited. So if Trump’s executive order had actually attempted to make past incidents of statue toppling a crime, it would likely be illegal under the constitutional prohibition against ex post facto laws. And let’s not even get into the whole mess Trump appears to be creating by assuming he can pass a criminal law by issuing an executive order. It’s Congress’s job to define what is and is not a crime; it’s his job to faithfully execute those laws.

Likely, though, there’s no ex post facto problem, as the law for which Trump is attempting to take credit has been on the books at least since 2003 — and I have no reason to believe it wasn’t passed properly.

[[Image via Alex Wong/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos