It would have been easy to miss this in the flurry of falsehoods and phony grievances spouted by President Donald Trump this week, but you should really know two things:

First, Trump hasn't actually criminalized the burning of American flags. Because he doesn't have that power.

Second, Trump's Aug. 25 executive order on "prosecuting burning of the American flag" is not really about the American flag at all.

Even Pam Bondi, Trump's attorney general at the Department of Justice, must know that the First Amendment right to freedom of expression covers the burning of the American flag, as the U.S. Supreme Court has ruled twice since 1989. This is settled law, put to rest by a previous iteration of the court that was also controlled by conservative justices.

So what is this really about? Two things: distraction and a trap.

Trump can't ban flag burning. But he knows Americans don't support it.

Trump predictably relies on distraction tactics when things are not going well for him. He's in that kind of spot now.

Trump's signature "One Big Beautiful Bill" is so unpopular that he admitted Aug. 26 that it needs a rebranding. He's been campaigning for a Nobel Peace Prize while proving to be completely inept in ending Russia's war on Ukraine or Israel's killing and starvation of noncombatants in Gaza. And he still hasn't kept his promise to release the criminal files on his old pal, Jeffrey Epstein, a convicted pedophile who died in prison during Trump's first term.

As for the trap: Burning the American flag may be legal, but that doesn't make it popular among Americans as a form of protest. Trump is clearly hoping Democrats take the bait and defend flag burning, so he can cast them as anti-American.

This is one spot where Democrats should just let the courts do their job as a branch of government.

Supreme Court upholds right to burn the flag

Flag burning as a protest has gone through three phases in American history, according to Robert Corn-Revere, chief counsel for the Foundation for Individual Rights and Expression, known as FIRE, a nonprofit civil liberties group. He wrote a history on the topic, identifying those phases from the run-up to World War I to World War II to the Vietnam War.

Corn-Revere pointed me toward specific language in Trump's executive order, which called burning the flag "uniquely offensive and provocative" as a "statement of contempt, hostility, and violence against our Nation" because it "may incite violence and riot."

The Supreme Court upheld the right to burn the flag in a Texas case in 1989 and then did it again in 1990 after Congress passed a law banning the act.

"And what Congress could not do by passing a law, President Trump certainly cannot do by executive order," Corn-Revere told me, calling that order "one big non sequitur" because it cites "precisely the rationale the (Supreme Court) rejected in 1989."

He said his study of flag burning also found that the act "is relatively rare, except when the government goes out of its way to ban it."

Trump uses flag burning to solicit 'patriotism' donations

We didn't have to wait long for that to prove true. A man who identified himself as a combat veteran set fire to an American flag in a park across the street from the White House just hours after Trump signed his executive order. He was charged with setting a fire on federal land, not for burning a flag.

This is in keeping with Trump's order, which instructed Bondi to find ways to prosecute flag burnings that "violate applicable, content-neutral laws." It's another way of saying Bondi is now tasked with finding crimes adjacent to flag burning to prosecute.

That was the big news in flag burning this week. To hear Trump tell it as he signed his executive order, however, "all over the country, they're burning flags." He also pledged that "if you burn a flag, you get one year in jail. No early exits."

The president doesn't have the power to jail anyone for a year for burning the flag. His executive order doesn't even mention that proposed penalty.

Trump's real motivation came clear a day after his executive order, when his political action committee sent an email to supporters, citing the flag burned outside the White House while pleading with them to "pledge your patriotism now" by sending him $35 to "claim" a white T-shirt printed with an American flag.

Always a pitchman, Trump wants you to pay him for both your patriotism and his distraction tactics.

Follow USA TODAY columnist Chris Brennan on X, formerly known as Twitter: @ByChrisBrennan. Sign up for his weekly newsletter, Translating Politics, here.

This article originally appeared on USA TODAY: Trump can't criminalize flag burning. His order is just a distraction tactic. | Opinion

Reporting by Chris Brennan, USA TODAY / USA TODAY

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