Trump’s Strategy to Save TikTok and the Legal Controversies

President-elect Donald Trump unveiled plans for an executive order to save TikTok from a federal ban Sunday, immediately raising questions about the legality of his proposal, which appears to involve nationalizing half of the app.

“I will issue an executive order on Monday to extend the period of time before the law’s prohibitions take effect, so that we can make a deal to protect our national security,” Trump wrote on Truth Social. “My initial thought is a joint venture between the current owners and/or new owners whereby the U.S. gets a 50% ownership in a joint venture set up between the U.S. and whichever purchase we so choose.”

Negotiating that kind of venture would likely involve approval from the Chinese government. Trump’s incoming national security advisor, Rep. Mike Waltz (R-Fla.), implied it might be Chinese President Xi Jinping who ultimately makes the call, when asked about TikTok and ByteDance’s lack of interest in a sale. He said China has a “very top-down authoritarian system,” and after Trump spoke with Xi, “they agreed to work together on this.”

Chinese officials have reportedly discussed working with the Trump administration on selling TikTok to Musk, and the “first buddy” has some concessions for his own businesses that he hopes to extract from Beijing. Musk said on X Sunday that though he has opposed banning TikTok for a long time, “the current situation where TikTok is allowed to operate in America, but X is not allowed to operate in China is unbalanced. Something needs to change.”

Others including, billionaire Frank McCourt and “Shark Tank” star Kevin O’Leary, previously said they have submitted offers to buy TikTok from Beijing-based ByteDance. O’Leary has met with Trump at Mar-a-Lago in an attempt to earn support for his bid.

Trump also exerted pressure on the entire tech ecosystem that makes TikTok available to U.S. users, including app store operators and service providers like Oracle which hosts its servers. Apple and Google pulled TikTok from their storefronts Saturday night after the app itself went dark on users.

“I’m asking companies not to let TikTok stay dark!” said Trump. “The order will also confirm that there will be no liability for any company that helped keep TikTok from going dark before my order.”

Trump’s transition team did not immediately respond to a request for comment.

Trump’s team was talking directly to TikTok about ways to avert its shutdown ahead of the ban’s Sunday deadline. He has landed on a combination of two possibilities — first, extending TikTok a 90-day reprieve from a provision in the law, and second, simply directing his attorney general to not enforce fines for companies that violate it.

It’s legally debatable if Trump can grant an extension now that the ban is in force. According to the law, Trump would need to certify to Congress that there is a path to divestiture, “significant progress” toward it, and the “relevant binding legal agreements” are in place. None of those conditions appear to be in place yet, as ByteDance has resisted a sale.

GOP House Speaker Mike Johnson said on NBC Sunday morning that language must be followed to a tee: “The law is very precise, and the only way to extend that is if there is an actual deal in the works.” But he didn’t close the door on Trump making that happen and listed off Musk and O’Leary as potential new owners. “President Trump is probably intrigued by all this, and he likes to make deals.”

“Now that the law has taken effect, there’s no legal basis for any kind of ‘extension’ of its effective date,” Sen. Tom Cotton (R-Ark.), chair of the Senate Select Committee on Intelligence and a staunch backer of the law, said in a statement with Sen. Pete Ricketts (R-Neb.). “For TikTok to come back online in the future, ByteDance must agree to a sale.”

Waltz acknowledged that the Trump team is looking into a gray area. “I know of at least one from Kevin O’Leary, that’s been delivered to ByteDance … The point is, what is a viable deal?” he said. “The president needs the time with the Department of Justice to evaluate what viable means. We can’t do that if the thing is completely dark.”

Biden officials briefly considered the same option, before concluding that the president wouldn’t have the authority to use it even ahead of the ban. “Our interpretation of the law that Congress passed is that absent a credible plan from the company on how they will divest, the president does not have statutory authority to trigger the 90-day extension,” a White House official told POLITICO then.

Likewise, it’s questionable whether the other companies can legally rely on verbal promises from the president to protect them from potentially bankruptcy-inducing fines, if they help bring TikTok back. App stores and service providers face a daily $5,000 fine for every user who can still access TikTok, and those penalties easily add up to billions of dollars.

The Biden White House also repeatedly indicated to those companies that it would not punish them on the outgoing president’s last day in office. But Apple said it decided to pull TikTok and other ByteDance-owned apps anyway because it’s “obligated to follow the laws in the jurisdictions where it operates.”

Sens. Cotton and Ricketts applauded Amazon, Apple, Google and Microsoft for “following the law,” and encouraged other companies to do the same — the exact opposite of Trump’s request after.

Asked if Trump should enforce the law on Day One, Senate Majority Leader John Thune told POLITICO “I would think so” on Friday after the Supreme Court ruled the provision is constitutional.

Trump’s pick for attorney general, Pam Bondi, notably refused to commit to enforcing the TikTok ban during her confirmation hearing — drawing the ire of Sen. Richard Blumenthal (D-Conn.) who called her response “unacceptable.” Similarly, Sen. Rick Scott (R-Fla.) told reporters that U.S. app store providers like Google and Apple “need to comply with the law,” and simply said “I expect the laws to be enforced” when POLITICO asked about Bondi’s reluctance.

Democrats have also been divided about what role they and Trump should play in the fate of TikTok.

Sen. Ed Markey (D-Mass.), who has attempted to buy the platform more time for a sale, said Sunday morning “I’m deeply disappointed that TikTok went dark last night. I will not stop fighting to fix this mistake in the United States.”

“What are we a bunch of chumps?” asked former White House chief of staff Rahm Emanuel on CNN Sunday, criticizing those he said were as flexible as ballet dancers in their beliefs.

When TikTok suddenly took down its feed Saturday night, it sent 170 million U.S. users a clear message about who they should count on to restore access.

“You can’t use TikTok for now,” the company said in a message still being displayed when the app is opened. “We are fortunate that he will work with us on a solution to reinstate TikTok once he takes office. Stay tuned!”

Many saw the message as a blatant appeal to Trump, noting the law did not compel TikTok itself to turn off, and instead punishes other companies that keep hosting it despite the ban. When the law was still being debated, TikTok sent push alerts to its expansive user base, directing it to call their Congressional offices, but the tactic ultimately backfired.

“The law doesn’t require TikTok to shut down immediately. TikTok could switch to overseas servers and provide service to the 170M Americans who already have the app,” Alan Rozenshtein, a former Justice Department official who teaches at the University of Minnesota Law School said Saturday night. “TikTok is trying to put maximum pressure on Congress/Trump to undo the ban.”