Federal officers’ actions at protests in Oregon’s largest city, hailed by President Donald Trump but done without local consent, are raising the prospect of a constitutional crisis – one that could escalate as weeks of demonstrations find renewed focus in clashes with camouflaged, unidentified agents outside Portland’s US court.
Demonstrators crowded in front of the United States federal court and the city’s Justice Center late Monday night, before authorities cleared them out as the sound and light of flashbang grenades filled the air.
State and local authorities, who did not ask for federal help, are awaiting a ruling in a lawsuit filed late last week. State Attorney General Ellen Rosenblum said in court papers that masked federal officers have arrested people on the street, far from the court, with no probable cause and whisked them away in unmarked cars.
Trump said he plans to send federal agents to other cities, too.
“We’re going to have more federal law enforcement, that I can tell you,” Trump said Monday. “In Portland, they’ve done a fantastic job.”
Constitutional law experts said federal officers’ actions in the progressive city are a “red flag” in what could become a test case of states’ rights as the Trump administration expands federal policing.
“The idea that there’s a threat to a federal courthouse and the federal authorities are going to swoop in and do whatever they want to do without any cooperation and coordination with state and local authorities is extraordinary outside the context of a civil war,” Michael Dorf, a professor of constitutional law at Cornell University, told The Associated Press.
“It is a standard move of authoritarians to use the pretext of quelling violence to bring in force, thereby prompting a violent response and then bootstrapping the initial use of force in the first place,” Dorf said.
Nights of unrest
The protests have roiled Portland for 52 nights. Many rallies have attracted thousands and been largely peaceful, though some have become violent.
Anger at the federal presence escalated on July 11, when a protester was hospitalised with critical injuries after a US Marshals Service officer struck him in the head with a less-lethal round. Video shows the man, identified as Donavan LaBella, standing across the street from the officers holding a speaker over his head when he was hit.
Since then, smaller groups have focused on federal property and local law enforcement buildings, at times setting fires to police precincts, smashing windows and clashing violently with local police.
Portland police used tear gas on multiple occasions until a federal court order banned its officers from doing so without declaring a riot. Now, concern is growing that the tear gas is being used against demonstrators by federal officers instead.
The Department of Homeland Security tweeted that federal agents were barricaded in Portland’s US court at one point and had lasers pointed at their eyes in an attempt to blind them.
Attempted arson is not a peaceful protest.
Physically attacking law enforcement is not freedom of speech.
Destruction of property is not peaceful assembly.
Criminals perpetrating these crimes are being arrested…not law abiding protestors. https://t.co/CvOgE8G0AP
— Acting Secretary Chad Wolf (@DHS_Wolf) July 20, 2020
Court papers in a federal case against a man accused of shining a laser in the eyes of Federal Protective Service agents show that Portland police turned him over to US authorities after federal officers identified him. Court documents filed in cases against protesters show that federal officers have posted lookouts on the upper stories of the court and have plain-clothes officers circulating in the crowd.
Top leaders in the US House said Sunday that they were “alarmed” by the Trump administration’s tactics in Portland and other cities. They have called on federal inspectors general to investigate.
Trump, who’s called the protesters “anarchists and agitators”, said the DHS and Justice Department agents are on hand to restore order at the courthouse and help Portland.
The Trump administration’s actions run counter to the usual philosophies of American conservatives, who typically treat state and local rights with great sanctity and have long been deeply wary of the federal government – particularly its armed agents – interceding in most situations.
A Portland peaceful protester — and U.S. Navy veteran — describes his brutal beating by federal officers https://t.co/TLiL1VLvj5
— Jon Cooper 🇺🇸 (@joncoopertweets) July 21, 2020
But Trump has shown that his actions do not always reflect traditional conservatism – particularly when politics, and in this case an impending election, are at play.
Mayor Ted Wheeler, who has been under fire for his handling of the protests, said on national TV talk shows Sunday that the demonstrations were dwindling before federal officers engaged.
“They are sharply escalating the situation … And it’s not helping the situation at all,” Wheeler said on CNN’s, State of the Union.
“We haven’t asked them here,” Wheeler said. “In fact, we want them to leave.”
With Trump’s intent to send forces to more cities established, other mayors are signalling their resistance.
The Chicago Tribune, citing anonymous sources, reported Monday that Trump planned to deploy 150 federal agents to Chicago. The ACLU of Oregon has sued in federal court over the agents’ presence in Portland, and the organisation’s Chicago branch said it would similarly oppose a federal presence.
Chicago Mayor Lori Lightfoot wrote a letter (PDF) to Trump which said: “Such a deployment of secret, federal agents who arrest, and detain residents without any cause and then deprive those residents of due process is clearly unconstitutional. It is a bad idea and I urge you not to do it.
“The deployment of secret, federal agents in Portland has undermined residents’ confidence in all levels of government and fomented more unrest,” Lightfoot continued.
Indeed, crowds of demonstrators had begun to dwindle a week ago, and some in the liberal city – including Black community leaders – had begun to call for the nightly demonstrations to end.
But by the weekend, the presence of federal troops and Trump’s repeated references to Portland as a hotbed of “anarchists” seemed to give a new life to the protests and attracted a broader base.
On Sunday night, a crowd estimated at more than 500 people gathered outside the court, including dozens of self-described “moms” who linked arms in front of a chain-link fence outside the court. The demonstration continued into Monday morning.
“It seems clear that there were at least some federal crimes committed here,” said Steve Vladeck, a constitutional law professor at the University of Texas. “But the notion that a handful of federal crimes justifies a substantial deployment of federal law enforcement officers … to show force on the streets is, to my mind, unprecedented.”
“Federal law enforcement,” Vladeck said, “is not a political prop.”