These Red Scare threats shows how low Trump will go

There are nearly 25 million naturalized citizens in the United States, accounting for 7 percent of the total population. Each and every one of them should be laser-focused on the Trump administration’s plans to denaturalize and deport as many of them as possible.

Denaturalization is the process by which the federal government revokes the citizenship of persons born outside of the country who became citizens by meeting the standards set by Congress in the Immigration and Nationality Act, which include swearing an oath of allegiance to the United States, and demonstrating “good moral character.”

Although denaturalization rates have declined over the past several decades, there is ample historical precedent for the revival U.S. President Donald Trump is planning. Between 1906 and 1967 — when the Supreme Court stepped in to tighten the legal requirements — more than 22,000 Americans were denaturalized.

Many were left-wing activists who were singled out during the two Red Scares of the 20th century. A common method to denaturalize them was to accuse them of fraud in taking their oaths of allegiance. In 1919, in perhaps the most famous case of all, the government deported Emma Goldman to Russia under the Anarchist Exclusion Act after revoking her naturalized citizenship. In the 1950s, the government tried but failed to denaturalize labor leader Harry Bridges.

On June 11, Assistant Attorney General Brett Shumate wrote a memorandum that lists denaturalization as one of the Department of Justice’s (DOJ) top legal objectives to further Trump’s political goals. The memo was directed to the DOJ’s Civil Division, the department’s largest litigating component, which represents the United States and its executive agencies, members of Congress, cabinet officers, and other federal employees in thousands of legal matters each year. It instructed the division’s attorneys to “prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence,” focusing on 10 broad categories of enforcement actions:

1. Cases against individuals who pose a potential danger to national security, including those with a nexus to terrorism, espionage, or the unlawful export from the United States of sensitive goods, technology, or information raising national security concerns;
2. Cases against individuals who engaged in torture, war crimes, or other human rights violations;
3. Cases against individuals who further or furthered the unlawful enterprise of criminal gangs, transnational criminal organizations, and drug cartels;
4. Cases against individuals who committed felonies that were not disclosed during the naturalization process;
5. Cases against individuals who committed human trafficking, sex offenses, or violent crimes;
6. Cases against individuals who engaged in various forms of financial fraud against the United States (including Paycheck Protection Program [“PPP”] loan fraud and Medicaid or Medicare fraud);
7. Cases against individuals who engaged in fraud against private individuals, funds, or corporations;
8. Cases against individuals who acquired naturalization through government corruption, fraud, or material misrepresentations, not otherwise addressed by another priority category;
9. Cases referred by a United States Attorney’s Office or in connection with pending criminal charges, if those charges do not fit within one of the other priorities; and
10. Any other cases referred to the Civil Division that the Division determines to be sufficiently important to pursue.

The first nine categories are generally consistent with the government’s existing powers, reflecting Trump’s penchant for exploiting the loopholes and weak links in current law whenever feasible.

The 10th category, however, is a wildcard that could expand those powers exponentially and lead to a Red Scare encore.

And as dark and dangerous as that possibility sounds, it may be perfectly legal.

Article I, Section 8, Clause 4 of the Constitution grants Congress the power to establish a “uniform Rule of Naturalization.” Pursuant to this authority, Congress passed the first naturalization act in 1790, and ratified additional acts well into the late 19th century. But it was not until the passage of the Naturalization Act of 1906 that Congress federalized naturalization procedures.

The act incorporated earlier race-based legislation that limited naturalization to white people and those with African origins. It also created the Bureau of Immigration Services, the precursor of the present-day U.S. Citizenship and Immigration Services agency, which promulgated uniform application forms, and began the process of moving naturalization jurisdiction to the federal courts. (Prior to 1906, immigrants were able to apply for citizenship before any court of record, including state and municipal courts. In 1990, Congress shifted jurisdiction from the federal courts to the executive branch, where it remains to this day, although naturalization ceremonies are still conducted by federal district court judges.)

The Naturalization Act of 1906 was also the first federal law that provided for denaturalization, centered on individuals who had obtained citizenship by fraud, were racially ineligible, and lacked “good moral character.” The act was amended on several occasions, most notably in 1952 by the McCarthy-era McCarran-Walter Act, which added provisions for denaturalization based on activities deemed subversive or connected to communist or communist-front organizations.

Today’s denaturalization procedures are set forth in two sections of Title 8 of the U.S. Code. Section 1451 authorizes the Department of Justice to institute civil proceedings, alleging that citizenship was “illegally procured” or obtained “by concealment of a material fact or by willful misrepresentation.” The section also mandates denaturalization for individuals who refuse to testify before a congressional committee concerning their alleged subversive activities in cases where they have been convicted of contempt for such refusals.

Section 1425 of Title 8 authorizes criminal prosecutions, making it a felony punishable by 25 years in prison to knowingly procure, “contrary to law, the naturalization of any person.” A conviction results in automatic denaturalization.

Once denaturalized under either section, a person returns to their immigration status before becoming a citizen, rendering them vulnerable to deportation.

It’s easy to see why Trump and his advisers have opted to emphasize civil denaturalization proceedings over criminal prosecutions. In civil cases, there is no right to a jury trial or court appointed counsel, and there is no statute of limitations. The standard of proof is also lower. According to the Supreme Court’sprecedent decisions, to prevail, the government must present “clear, convincing, and unequivocal evidence” that the targeted individual obtained citizenship illegally or willfully misrepresented a material fact during the naturalization process. That is a rigorous test, but one far lower than the “beyond a reasonable” doubt standard for criminal prosecutions.

The first Trump administration attempted to make denaturalization a priority, launching an initiative dubbed “Second Look,” which built upon a similar Obama administration program called “Operation Janus” to identify alleged terrorists and fraudsters who had naturalized.

In the end, however, Trump 1.0 filed a mere 102 denaturalization cases, amounting to an annual rate higher than the 16 cases per year filed under former President Barack Obama, and eclipsing the total of 24 cases filed under former President Joe Biden, but still miniscule. This time around, Trump 2.0 is pledging to bring the resources of the entire DOJ civil division behind the effort, reviving the specter of mass denaturalization.

The Shumate memo had largely flown under the media’s radar until Trump started talking in early July about deporting former best bro Elon Musk and New York City mayoral candidate Zohran Mamdani, and stripping comedian and longtime celebrity nemesis Rosie O’Donnell of her citizenship.

O’Donnell, who is seeking dual citizenship in Ireland, appears safe from Trump’s clutches as she was born in Commack, New York, and enjoys birthright citizenship under the 14th Amendment. Even Trump’s January executive order attacking birthright citizenship for the children of undocumented immigrants would leave her unscathed.

Musk and Mamdani are another story, as both are naturalized citizens. Musk, born in South Africa, naturalized in 2002. Mamdani, born in Uganda to Indian parents, naturalized in 1998. Musk allegedly worked illegally in the U.S. in violation of his student visa after leaving Stanford University in 1995. Mamdani has been accused of posting comments on X quoting rap lyrics suggesting support for Hamas.

Even if Trump’s threats against O’Donnell, Musk, and Mamdani are basically performative, thousands of less affluent naturalized citizens will likely be caught up in the coming denaturalization dragnet. Millions more who are not targeted will be intimidated from exercising their First Amendment rights to free speech and full political engagement. The net result will be a society less diverse and less free for the vast majority, exactly what Donald Trump and his cohorts want.

• Bill Blum is a former California administrative law judge. As an attorney prior to becoming a judge, he was one of the state's best-known death-penalty litigators. He is also an award-winning writer and legal journalist, and the author of three popular legal thrillers published by Penguin/Putnam as well as scores of features and book reviews published in a broad array of magazines and newspapers. His non-fiction work has appeared in a wide variety of publications, ranging from Common Dreams and The Nation to the Los Angeles Times, the L.A. Weekly and Los Angeles Magazine.