By Raphael Satter and Alexandra Alper
WASHINGTON (Reuters) – When Donald Trump ordered the U.S. government to ban popular Chinese social media app TikTok in 2020, he said “aggressive action” was necessary “to protect our national security.”
Now the Republican president-elect, who will assume his second term in the White House on Monday, is seeking to protect TikTok from a new law that gives TikTok parent company ByteDance until Sunday to sell the app to an American buyer or face being banned in the U.S. President Joe Biden, who is with only three days left in office, he was called upon to give ByteDance more time to sell the app.
“We’re going to put measures in place to make sure TikTok doesn’t stop,” Trump’s new national security adviser, U.S. Rep. Mike Waltz, told Fox News’ “Fox & Friends” Thursday.
So how could Trump or Biden have prevented TikTok from going dark?
BIDEN TO THE HELP?
The TikTok Act gives the president the power to grant a one-time extension of up to 90 days for the sale, if he confirms there is a path to — and evidence of progress toward — a divestment, including “binding legal agreements,” which the law does not define.
Meeting those demands would allow Biden to grant ByteDance a reprieve of nearly three months, according to Colin Costello, a lawyer for Freshfields and a former official in the Office of the Director of National Intelligence. He said the criteria for a binding legal agreement could potentially be met by the signing of a simple “term sheet” between ByteDance and a potential buyer, although no such deal appears on the horizon.
But to stop the ban in a long-term way, Costello said, it might require President-elect Trump to direct his Justice Department to “deprioritize,” or not enforce, the law, possibly for a period of time. That would take a page from former President Barack Obama, whose administration decided in 2012 to use “prosecutorial discretion” to grant deportation relief to immigrants who came to the U.S. illegally as children.
In TikTok’s case, that could give Congress time to consider a new bill that would give ByteDance another 270 days to find a U.S. buyer before it shuts down.
Still, the new law threatens to punish the tech companies that make TikTok available through their app stores — Apple Inc (NASDAQ: ) and Alphabet (NASDAQ: ) Google — and it’s unclear whether their lawyers would risk continuing to offer the app.
“It would put Apple and Google … in the right place,” Costello said. “Here you’d have a president saying he’s not going to enforce the law, even though they’d still be clearly breaking the law.”
TRUMP COULD BECOME ‘CREATIVE’
Trump could issue an executive order invoking the sweeping International Emergency Economic Powers Act and argue that containing TikTok is useful for national security, said Anupam Chander, a professor at Georgetown University Law School who has followed the issue.
Trump could argue, for example, that such a move would prevent users from fleeing to China’s RedNote app, which is run directly from China and is subject to censorship by the Communist Party. The order could tell tech companies like Apple or Google that they won’t face consequences for breaking the law, such as keeping TikTok on their app stores past the statutory deadline.
Such a scenario would not be without its challenges, Chander said.
“When the president can refuse to enforce a direct mandate of the law and promise the subjects of the law that it won’t be enforced on them, that opens a box,” he said.
“I don’t want to say it’s illegal,” he said. “It’s creative and an insult to Congress, but when you give the president unlimited national security powers, he could use them in unexpected ways.”
THE SUPREME COURT FOR SALVATION
The easiest way to save TikTok would be for the Supreme Court to stay the lawsuit the app filed against the government, which would allow the new Trump administration to make a new argument to the court that TikTok wasn’t so bad after all.
It would still represent a dramatic break from Trump’s past attacks on TikTok, but would avoid plunging the government into a legal or constitutional quagmire.
But time is running out. The court only has one business day between now and Sunday, when the statutory forfeiture order comes into effect.
“The Supreme Court can still save President Trump’s promise to keep TikTok alive,” Chander said. “Maybe we’ll find out tomorrow that it’s too late.”
