Terry H. Schwadron
July 23, 2020
Is it legal for Donald Trump to send unmarked federal agents over the objection of local officials into cities like Portland, where they have been whisking protesters off the streets and beating others, all in the name of defending the U.S. courthouse downtown?
We know the deployments represent a dangerous expansion of presidential power and may be adding to street violence, but is it legal? As with so many other issues spawned by the Trump administration, there is a kernel of legal underpinning here. But the deployment itself has fueled a sense that this is Trump using “secret police” to make a Law & Order point strictly for partisan political purposes in an election year.
And once again, it is all headed for court for an after-the-fact justification.
Set aside that these tactics are not effective. Amid all the calls about unconstitutional abuse of power from one side and cities out of control on the other, what are the legal arguments here?
Chad Wolf, the Acting Secretary of the Department of Homeland Security told Fox News this week that his unidentified federal agents’ random detainment of nonviolent policing protesters as some kind of crime prevention measure.
Portland Mayor Ted Wheeler, who was tear-gassed himself last night, has repeatedly demanded that Trump withdraw the agents from his city, insisting in his interviews that their presence is “actually leading to more violence and more vandalism. People are being literally scooped off the street into unmarked vans, rental cars, apparently,” Wheeler said. “They are being denied probable cause. And they are denied due process.”
Customs and Border Protection, which sent tactical border agents to Portland, cited 40 U.S. Code 1315, which under the Homeland Security Act of 2002 gives the department the power to deputize other federal agents to assist in protecting federal property, such as the courthouse.
Oregon Atty. Gen. Ellen Rosenblum has filed for a temporary restraining order as part of suing Homeland Security, the Marshals Service, the Customs and Border Protection, the Federal Protection Service and their agents for violating alleging the civil rights of Oregonians by seizing and detaining them without probable cause.
Let’s remember that real people, often those not doing anything but shouting, have been tear-gassed, beaten, taken from the streets and, in some cases, charged.
Building to This Point
One of the first things Trump did in 2017 was to hire 5,000 additional border patrol agents. Throughout his presidency, Trump and his administration has worked to expand the unchecked powers of the executive, choosing to block most oversight efforts by Congress or even the law. Administrative changes have spawned legal challenges from the beginning involving a wide range of subjects — environmental rules, travel bans, immigration, federal spending, the Wall — all with one commonality, growing the power of the presidency.
Trump has drawn specific help from U.S. Atty. Gen. William P. Barr and, more recently, from lawyer John Yoo, the author of legal arguments to justify waterboarding torture under the George W. Bush administration. Yoo told The Guardian news outlet that he has been advising Trump that even Supreme Court decisions opposing the president’s positions have supported a much-widened view of presidential power.
This has led to dispatching an army cobbled together from untrained agents to defend a city that hasn’t asked for defending, dressed up to take down an enemy Antifa army that barely exists, and find themselves launching tear gas against a line of moms (an a single naked woman) who gathered to put themselves between warring factions.
The images of militarized agents clubbing protesters and stuffing them into unmarked vehicles are changing the questions at hand. Legal analysts are concluding that while there may be broad authority to enforce federal laws, the actions of the agents involved are putting Homeland into an unsupported domestic policing role.
Key seems to be the idea that local officials do not want the federal intervention, which would be the normal procedure. Federal agents can only investigate and enforce federal crimes, though that gives them the ability to go after gang and drug activity or other crimes involving the crossing of state lines
The Public Reaction
Outside the courtroom, the public debate is raging
— While Homeland and Justice officials have tried to depict their actions in Portland as isolated, emergency measures, Trump is undermining that message with statements linking “chaos” in the city to a surge in violent crime in Chicago, New York and other cities. As he struggles in the polls, Trump makes it clear that he sees this law enforcement issue in the cities as an important point to press towards reelection.
— The Justice Department is expanding “Operation Legend,” an initiative to surge federal agents from the FBI, U.S. Marshals Service, Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives, to Kansas City. Another 150 ICE agents from the Homeland Security Investigations divisions, which target drug networks, human trafficking and transnational crime, are being sent to Chicago and Albuquerque, again against the will of local officials, to target gang members.
— Homeland is expanding intelligence gathering on protesters who may be targeting federal monuments and statues, according to a memo that surfaced this week.
— Former Homeland Security officials have been critical of the deployments. Paul Rosenzweig, a former DHS official and senior fellow at the R Street Institute, said, “It is not illegal, but it is an expansion of mission and what I would characterize as a misapplication of authority,” Rosenzweig said. “So, make it lawful but awful.” Former Homeland Secretary Tom Ridge, a former Republican governor in Pennsylvania: DHS was established to protect the country “from the ever-present threat of global terrorism. It was not established to be the president’s personal militia.”
— Rep. Alexandria Ocasio-Cortez, D-NY, a prominent supporter of the “defund the police” movement, has legislation that would require federal law enforcement officers to identify their agency, last name, and identification number while on duty.
— Meanwhile, Senate Republicans blocked a bipartisan effort to limit certain kinds of military weapons and gear from flowing to local police departments nationwide.
We can’t get away from the idea that Trump is depending on narrow legal grounds to go after protesters in an effort to boost his political imagery