He did not.
It’s a Monday, which means several of the thoughts that popped into the president’s head over the weekend are ready to be baked into executive orders. Apparently, one thought Trump had is that he does not like it when people set the American flag on fire. And a related thought: Burning the flag should be a crime, punishable by exactly one year in prison.
I, too, do not like it when people burn the American flag. But I have exactly as much legal authority to make doing so a crime nationwide as President Trump does, which is to say none at all. He can, however, can issue an executive order on the matter. Titled “Prosecuting Burning of the American Flag,” the order would be unconstitutional. One cannot be prosecuted in this country for burning an American flag, as that would violate the free speech clause of the First Amendment. Antonin Scalia and four other Supreme Court justices reached this conclusion in 1989, and it has never been overturned.
Acknowledging this decision, Trump’s executive order does not actually instruct anyone to prosecute burning the American flag. Instead, it asks the attorney general to prioritize prosecuting other crimes that one may happen to commit while burning the American flag. “This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace,” the order states. The Department of Justice shall also alert local law enforcement when it thinks an instance of flag burning violates a state or local law, “such as open burning restrictions, disorderly conduct laws, or destruction of property laws.”
Trump’s executive order, then, does not create any new law against flag burning — which would be unconstitutional in many ways. It merely demands that existing laws be prosecuted extra hard when an infraction involves setting the American flag ablaze. That, while ugly to a free speech absolutist, is permissible behavior.
Unfortunately, as evidenced by his own words while signing the executive order, Trump seems to genuinely believe that he just criminalized flag burning nationwide and decreed a universal punishment of one year in prison: “What the penalty is going to be, if you burn a flag, you get one year in jail. No early exits, no nothing . . . You don’t get ten years, you don’t get one month. You get one year in jail, and it goes on your record. And you will see flag burning stopping immediately.”
The executive order, sitting on the desk when he said this, does not contain any mention of a one-year punishment for burning a flag. It does not contain any punishment, in fact, because the president cannot penalize flag burning with an executive order.
The president claims to have issued an executive order significantly different from the one he did issue, and provides numerical details of this fictitious order that he would have no power to institute. It seems like cause for concern.