Trump plays dealmaker as questions surround TikTok
President Trump's efforts to force TikTok's Chinese parent company to sell the popular app, all while keeping it available to U.S. users despite Sunday’s ban, raise a slew of legal and practical questions about the platform's future.
Trump signed an executive order Monday delaying enforcement of a law that would ban TikTok in the U.S. in a bid to create "a joint partnership" in control of the app. The order and those efforts, however, are expected to face lawsuits and procedural hangups.
“President Trump’s executive order doesn’t save TikTok," said Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute, which filed a brief supporting TikTok at the Supreme Court.
"It just makes the app entirely dependent on his whims and consolidates his power over the digital public sphere," Krishnan continued. "This isn’t a win for free speech and it certainly isn’t a win for the rule of law. Congress’s TikTok ban is terrible policy, but overriding a duly enacted law by executive fiat sets a dangerous and anti-democratic precedent.”
Trump’s executive order — one of more than two dozen he signed on his first day in office — instructed his attorney general not to enforce the law for 75 days, granting TikTok a temporary reprieve.
The law requires TikTok’s parent company, ByteDance, to divest from the app within 270 days or face a U.S. ban. The clock ran out Sunday, leading TikTok to shut down access in the U.S. late Saturday night.
While the Biden administration said Friday it would leave enforcement to the Trump administration, TikTok argued that the White House had not provided the “necessary clarity and assurance to the service providers.”
After a 12-hour blackout, TikTok began restoring service to its American users midday Sunday, after Trump announced his plans to sign an executive order suspending enforcement of the law.
In signing the order, Trump reiterated his hopes of striking a deal in which the U.S. has a 50 percent ownership position in TikTok.
“If I do the deal for the United States, I think we should get half,” Trump told reporters in the Oval Office on Monday night. “The U.S. should be entitled to get half of TikTok. And congratulations, TikTok has a good partner.”
He also threw out the idea the U.S. could enter into a joint venture with the “people of Singapore.” Notably, TikTok CEO Shou Zi Chew, who attended Trump’s inauguration Monday, is from Singapore.
However, both Trump's executive order and his proposed venture may face legal roadblocks.
The TikTok order “might be one of the more legally shaky orders that were issued yesterday,” said John Yoo, a law professor at the University of California, Berkeley, and former Justice Department official in former President George W. Bush’s administration.
Rep. Frank Pallone (D-N.J.), ranking member of the House Energy and Commerce Committee, said he has “serious concerns” that Trump is “circumventing national security legislation passed by an overwhelming bipartisan majority in Congress.”
While the law permits the president to give ByteDance a 90-day extension, it’s unclear that Trump can take advantage of this feature with Sunday’s deadline already in the rearview mirror.
“The legal problem is that the period by which TikTok had to close or be shut down was the day before President Trump took office,” Yoo said Tuesday on a call organized by the Federalist Society.
“How can you grant an extension to a period that's ended?” he added. “For example, as a professor, if a student's taking an exam, and the exam is over, I can't grant an extension the next day for a student to then keep taking the exam. The exam is over.”
Trump’s executive order makes no mention of the 90-day extension period built into the law and does not attempt to certify that “significant progress” has been made toward a divestiture as the law requires.
However, in the Oval Office on Monday night, Trump noted the law “gives the president the right to make a deal or close it, and we have 90 days to make that decision.”
“Executive orders cannot overturn laws,” said Anthony Scaramucci, who briefly served as Trump’s White House communications director and since has become an outspoken opponent of the president.
“Ring-kissing is one thing, but if tech CEOs turn TikTok back on out of fear of reprisal, we have the makings of a constitutional crisis,” he added in a post on the social platform X.
Lily Li, a cybersecurity and data privacy lawyer, said she doesn’t expect the Trump administration to rely on the extension built into the law because it took effect before the president took power.
“That’s why I think the language of it is interesting, because it’s an order to the attorney general not to take action,” she told The Hill.
“So, I read it as a stay on enforcement, and we’re looking at the enforcement authority of the attorney general. I’m not seeing it as an attempt to extend the deadline of the ban.”
Despite the order halting enforcement, the companies subject to the law — app stores providers, like Apple and Google, and Oracle, the cloud computing firm providing internet hosting services to TikTok — still could face exposure.
The tech giants are subject to hefty fines under the law, ranging up to $850 billion. Neither Apple nor Google has restored TikTok to their app stores despite Trump’s assurances.
“The idea, though, that it can completely absolve ByteDance or TikTok or any other hosting platforms of liability, that’s much more of a gray area,” Li noted.
Shareholders and states could also potentially file lawsuits, although the executive order seemingly sought to head off such efforts by warning that this would represent “encroachment on the powers of the Executive.”
As Trump attempts to piece together a deal in the next 75 days, his initial proposal of a joint venture in which the U.S. takes a 50 percent stake may also fail to meet the requirements for a “qualified” divestiture, Yoo noted.
“It's not even clear that 50 percent U.S. ownership would count as a divestiture under the statute,” Yoo said.
“50 percent doesn't give you full control over the company, and that seems to be what the statute requires. It doesn't allow for continuing Chinese Communist Party influence through a 50 percent share of the company.”
Former Los Angeles Dodgers owner Frank McCourt, whose Project Liberty has submitted a bid for TikTok, argued Tuesday that his is “the only solution on the table that complies with the law.”
“Specifically, a qualified divestiture requires selling TikTok to an American buyer with a clean, American-made tech stack and abandoning TikTok's algorithm,” McCourt said in a statement.
“Project Liberty has a proven tech stack that is already in use and offers a clear path to address the national security concerns of Congress while keeping TikTok operational,” he added.
While Trump’s 50 percent proposal is somewhat “outside the box,” it might represent a starting point for negotiations, said Cayce Myers, a public relations professor at Virginia Tech.
“I think he sees this extension as a way to leverage the ban to get ownership interest or for the U.S.,” Myers said. However, he added, “That’s a real unprecedented strategy and would be an unprecedented outcome for something like this.”