By Russell Bikoff
Do you remember how federal authority, in the persons of U.S. Department of Justice attorneys and U.S. marshals, was used in Little Rock, Ark. in 1957, and Montgomery, Ala. in 1961 and 1965, to protect marchers and Freedom Riders, and to help integrate schools in those communities? My, how times have changed. In recent days, demonstrators for social justice and against racism in the criminal justice system have focused their demands on the Mark O. Hatfield Federal Courthouse in Portland, Ore., seemingly as a symbol of oppression. But according to the Oregonian, a daily newspaper, “The Mark O. Hatfield courthouse was not a focal point of Portland’s anti-police violence protests until federal officers began to emerge from it, sometimes shooting impact munitions toward the crowd.”
Reports are that Oregon Governor Kate Brown has reached a tentative agreement with the deputy director of the F.B.I. to withdraw federal agents from Portland and replace them with the Oregon State Police, who will protect the outside of the federal courthouse. Other federal agents and contractors will remain inside the building in their normal protective role. The next few days will tell if this agreement is real or an empty promise.
What are we witnessing here? Will President Trump back down on his evident strategy to send federal agents into American cities run by Democratic mayors in an effort to provoke violence and conflict and, he hopes, goose his sagging electoral fortunes by dressing up as the Nixonian “law and order president”? So far, in the past few days, the Trump Administration has pulled federal agents out of Seattle after a short-lived presence there. Portland seems to be the test case for the Administration's strategy, rolled out a month ago, to combat what it perceived-- or is attempting to sell as-- a wave of anarchy and violence. In their view, this wave is directed not only against federal buildings, but various public properties, including monuments on city or state land.
Let us look at the stakeholders. First, there are the demonstrators, who are seeking social justice and opposing police brutality against people of color. Also among the demonstrators are some violent types, perhaps provocateurs or instigators, who at first damaged the federal courthouse and now are trying to take down or breach the heavy-duty fence that the feds put up to protect the courthouse. Opposing the demonstrators-- the vast majority of whom are peacefully and legally exercising their constitutional rights-- are the regular federal agents assigned to Portland, plus the reportedly over 100 additional agents sent, beginning on July 4th (more symbolism!), by Trump, Department of Homeland Security Acting Secretary Chad Wolf, and Attorney General William Barr to augment the federal presence in an operation called “Diligent Valor.” (An oxymoron certainly, given the president’s well-known personal qualities.)
The demonstrators have made clear that their focus is on ending racism in policing (“Black Lives Matter”), and that they have no wish to be distracted by discussions of damage to federal property. The few violent types apparently have a history in Portland, balanced by right-wingers who have engaged in their own threatening public appearances in the past. The federal agents have been sent to Portland under color of questionable authority. As the recently filed lawsuit against Wolf by the Wall of Moms, Don’t Shoot Portland and Black Lives Matter argues, Wolf is not properly an acting D.H.S. secretary and has no authority to issue orders, which in their view are void.
As of today (July 31), there have been 64 consecutive nights of demonstrations in Portland, with 60 arrests. ( As of July 25, fourteen people have been released without charge and 46 people charged, in 30 misdemeanors, eight felonies, and eight violations. The numbers have surely grown since then.) If the visiting agents are withdrawn from Portland, many of these cases will disappear with dismissals for lack of live government witnesses. There seems to be a game of cat and mouse, with the few violent demonstrators first inflicting property damage on the building and, after the erection of the fence, trying to tear down or break through it. The U.S. Attorney’s spokesman acknowledges that the demonstrators, including those from the N.A.A.C.P., Wall of Moms, and Black Lives Matter are all there peacefully and have a First Amendment right to demonstrate. However, that office is not in control of law enforcement tactics, as they have admitted, which are under the authority of D.H.S. and the U.S Marshals Service (an agency of the U.S. Department of Justice).
The federal agents stay in the building until there is a challenge to the fence, and then rush out. In recent weeks they have deployed what are called “impact munitions” and tear gas, sometimes ranging blocks away from the courthouse. There had been a federal court order directing the Portland police not to use these munitions and tear gas, but that order does not apply to the federal forces in the city. There have been a number of high-profile victims of these actions: a young man shot in the head, resulting in a skull fracture and serious injury; a veteran, a West Point graduate, whose hand was broken in two places; a young man filmed by a bystander being apprehended by agents on the street and forced into an unmarked car. These are all subjects of investigations by the inspectors general of the Department of Justice and D.H.S.
A lawsuit filed on July 27th by the organization Protect Democracy, and by several topflight law firms, is in the U.S. District Court in Washington, D.C. There it has been assigned-- fortuitously for the protestors-- to Judge Christopher R. Cooper, an appointee of President Obama. If the newly-announced agreement between the federal authorities and the Oregon governor results in the withdrawal of the federal agents, the government will argue that the lawsuit is moot. However, in view of the Trump administration's announced intention to send federal agents into other cities, especially those “all run by liberal Democrats,” (“All run, really, by the radical left” per Trump on July 20) the issue should not be moot, since the same question will come up if federal law enforcement goes to those cities.
Also, the lawsuit is unlikely to go away with the government's motion to dismiss or a later motion for summary judgment. The lawsuit claims that the Trump program using federal police violates the 1st, 4th, and 5th amendments of the U.S. Constitution, relating to freedom of speech and assembly and due process of law. The lawsuit also claims that the program violates federal statutes, including the Administrative Procedure Act, because Chad Wolf is illegally serving as acting Secretary of D.H.S. and therefore lacks authority to issue orders. The case might go to trial on the issue of whether the Administration’s stated rationale of protecting federal property under another federal statute (40 U.S. Code section 1315) is, as the plaintiffs claim, a pretext to hide its illegal program of suppressing by federal force constitutionally protected demonstrations in favor of social justice and “black lives matter.” The Project Democracy July 27th news release accompanying the filing of the lawsuit says:
Statements from the Trump administration, and the on-the-ground conduct of federal officers, show that the federal government is there to silence protesters, not protect federal property. “Our clients in Portland are peacefully exercising their First Amendment rights. Federal law enforcement should not be attacking these brave women for speaking up for what they believe,” said Deana El-Mallawany, counsel at Protect Democracy. “The intent of the administration’s deployment of federal agents in Portland appears to be to stifle speech the president doesn’t like. It’s important to check this unlawful administration policy now, before it is allowed to spread to other cities across the U.S.,” she added.
While a U.S. courthouse should never be a rallying point as the opposition to a broad-based movement for social justice and fairness for people of color, it is almost laughable that Trump is presenting the courthouse and its defenders as the victims, under attack by forces of chaos and disorder. He might like voters to think that he is Lincoln defending Fort Sumter from the South Carolina militia firing cannons from Charleston. But unlike Lincoln, and more like George Wallace, Trump is fighting a rearguard action on behalf of an unjust and thus unsustainable status quo. The national interest is having federal power stand by the demonstrators and support them by confronting forces of bigotry, hatred, and violence in this society, including armed right-wing militias. Americans do not want to travel the path of the Weimar Republic, with street battles between the right and left, nor look like apartheid South Africa, breaking up “unlawful assemblies” with indiscriminate and excessive militarized violence. How Trump engineered this appalling reversal of federal symbolism is yet another episode in the continuing tragedy of his administration.
(A personal postscript: A year ago, my wife and I took a trip to the West Coast that started in Portland. We drove past the federal courthouse. We walked and drove around the blocks between the courthouse and the river, where a Saturday afternoon market was underway. The major issue then for downtown Portland was how to deal with the problem of homeless encampments and the numbers of homeless people, with attendant problems of sanitation, health, and nutrition. I am sorry to see this lovely city, with vibrant and fun neighborhoods, spectacular parks and views of distant Mount Hood, plunged into agony.)
Russell Bikoff has been a prosecutor in the Manhattan District Attorney’s office and a federal official in the foreign affairs community and the U.S. Department of Justice. For the past 15 years, he has practiced law in Washington, D.C., focusing on criminal defense, civil litigation, and other civil matters.