A Brief History of President Trump’s Politically Exploitative and Non-Committal Efforts at Lawless Authoritarianism in Portland and Chicago
“William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!” - “A Man For All Seasons,” Robert Bolt
While protesting on Logan Square yesterday, I got a LOT of questions regarding the federal government’s actions in Portland and Chicago. Most people seemed confused by the complicated legal issues or simply unable to keep up with the rapid pace of new information as to what is going on. To that end, I thought it would be helpful to do a lengthy write up on this extremely complicated topic. Citations are marked and provided at the end of this essay.
Tl; dr — The President has committed, and promises to continue, patently unconstitutional policing in Portland. In my opinion, he was set to expand the same to Chicago until he cowed to the demands of Mayor Lightfoot and advice of Attorney General Barr.
*** The Department of Homeland Security in Portland ***
On July 15, 2020, the Department of Homeland Security (“DHS”) the direction of Acting Secretary Chad Wolf sent masked unidentified officers in military armament and unmarked vehicles out to patrol the streets of Portland Oregon. These “officers” were caught on video arresting citizens without (a) identifying themselves as law enforcement personnel; (b) announcing charges or even reasons for the arrests; or (c) generating any report or justification for their actions afterwards.[1] In the days immediately prior and after the foregoing, at the Mark O. Hatfield Federal Courthouse, DHS officers (a) bashed non-violent military veterans who were shaming them for violating the Constitution; (b) arrested and committed violence against identified wholly peaceful members of the press; and (c) shot unarmed non-violent protesters with riot control munitions.[2] All of the foregoing was part of DHS’ “Operation Diligent Valor” which had been operating in Portland since at least early July 2020 under the aegis of an executive order from Trump to — sigh — protect monuments and unrelated statutory authority to protect federal property. Despite having been in Portland for some time, this was the first time that the conduct as described above occurred or, at least, had been captured on video. If you are looking to put names to the foregoing actions, these are some of the known victims: Mark Pettibone, Conner O’Shea, Christopher David, Duston Obermeyer, Cory Elia, Lesley McLam, and Justin Yau.
After immediate nationwide outrage, on July 17, 2020, DHS responded and (a) confirmed that they would continue these actions in Portland; and (b) announced their intention to expand them “around the country.”[3] DHS also released a “justification” for their actions which characterized the Portland protesters as “violent anarchists” seventy-two (72) times and listed ninety-one (91) alleged protester offenses — of which 21 were graffiti, 7 were property damage to a fence, and 15 were actually just reports of law enforcement activity.[4] Later, on July 21, 2020, Acting Secretary Wolf and subordinates not only re-confirmed the foregoing but fleshed out the details with additional abhorrent unconstitutional conduct including (a) anticipatory arrests; (b) guilt by association searches and arrests; and (c) relocating investigative detentions.[5] The State of Oregon and City of Portland have explicitly decried these actions but DHS has flatly stated they will continue irrespective of local government consent.[6]
In the days after the foregoing, all implicated sovereign bodies, except President Trump, agree that the situation in Portland has gotten worse because of DHS’ actions.[7] Several citizens interviewed have stated that they are living in fear of the federal government abducting and / or killing them.[8]
*** The Obvious Illegality of DHS’ Actions in Portland ***
So, let us turn to the law.
Even accepting, arguendo, the often painfully thin jurisdictional claims to be operating in Portland in any capacity, it is DHS’ methods of policing described above which are patently unconstitutional. If you don’t believe clear Supreme Court precedent and the text of the United States Constitution itself,[9] consider the plain spoken analysis offered by the following legal scholars:
(a) Lawrence Tribe, author of THE MOST prominent law school hornbook on constitutional law, acclaimed Harvard law professor, and routine United States Supreme Court advocate, described DHS’ actions as “manifestly unconstitutional” and “not mere[ly] disregard for the rule of law [… but …] outright disdain.”[10]
(b) Erwin Chemerinski, author of THE SECOND MOST prominent law school hornbook on constitutional law, Dean of University of California Berkley Law, and co-author of the Los Angeles City Charter says that DHS’ actions are “clearly unconstitutional” and that “[a]narchy is what happens when the law is ignored […] exactly what the president is doing in Portland.”[11]
(c) Former Judge and Fox News pundit, Andrew Napolitano said DHS’ conduct was “unlawful, unconstitutional and harmful” and “how totalitarianism begins.”[12]
A chorus line of authoritarian apologists have mewled that DHS’s actions in Portland are morally “necessary” or “deserved” in some capacity but that, obviously, does not make it lawful. Setting aside these cowards’ rationalizations, I have, honest to goodness, not heard a single compelling argument that what DHS is doing in Portland is legal. Not one.
*** President Trump and Chicago ***
So, where does that leave Chicago? Well, it is extremely complicated but I think the most effective way to explain it is to (a) explain one quick but important legal point; (b) report a short timeline of events; and (c) then offer a summary and opinion.
First, the legal point. In the United States, the general “police power” — preservation of public safety and order — is explicitly denied from the federal government and reserved for the states.[13] Simply stated, the federal government cannot just “fight crime” on its own accord nor can it force the several states to “fight crime” in any particular way or at all — the topic is left wholly to the states’ discretion.[14] Often the federal government may wish to assist with policing crime within a specific state. This is fine, so long as the federal government first obtains the express consent of that jurisdiction — who may deny or condition the federal government’s involvement in any way that they want.
So, moving on to the timeline:
Between July 15, 2020 and July 19, 2020, President Trump makes a series of vague and inconsistent statements about Portland, federal law enforcement, and sending officers / “soldiers” to Chicago. They include the following:
(1) Stating that Chicago is a “out of control” and “like a warzone” and that he is “not going to put up with that.”[15]
(2) When asked in a Fox News interview to explain increased violence in New York and Chicago, President Trump said that these are “Democrat-run cities, they are liberally run. They are stupidly run.” When it was pointed out that liberals had been running cities for decades, Trump responded that these cities were “totally out of control and it’s really because they want to defund the police and Biden wants to defund the police.”[16] It is patently false that either Mayor Lightfoot or Vice President Biden advocate defunding the police, yet President Trump has spent more than $20 million dollars in July alone on political ads pushing these false claims.[17]
(3) Describing Portland as a city in “anarchy” for which he “sent in help” and insinuating that New York, Philadelphia, and Chicago were in anarchy as well.[18]
Throughout this period, President Trump’s direct and indirect statements that Chicago and other cities “run by liberal democrats” were in a state of “anarchy” and “chaos” was immediately picked up and repeated by conservative media.[19] The “moral necessity” for immediate federal police action in “liberal cities” became a quickly accepted fact for a small minority of Americans who themselves did not live in “liberal cities.”
It is also worth noting that on July 16, 2020, President Trump replaced his campaign manager with Bill Stepien.[20] I only bring up Mr. Stepien because he is most famous for helping Trump’s 2016 campaign when it was trying to “course correct amid a slew of gloomy national and battleground state poll numbers.”[21] While speculative, I suspect this had something to do with his absolutely abysmal approval and polling numbers.[22]
Then, on July 20, 2020, several important things happened.
First, President Trump said DHS is doing a “fantastic job” in Portland, he will be sending “more federal law enforcement” to New York, Chicago, Philadelphia, Detroit, Baltimore, Oakland because these cities are run by “liberal democrats” who are afraid of anarchists, and stating that violence in Chicago is “worse than Afghanistan, by far.”[23] This final point a popular talking point of the President is patently false.[24]
Second, it was leaked by two law enforcement officers that DHS was planning on sending 150 officers to Chicago with an unspecified scope of operation or limitation on authority.[25] While the stories covering this have since been updated with new information, the initial leaks were so vague and lacking specifics that, when asked about them White House press secretary Kayleigh McEnany said “I think you’re getting ahead of the President, he’s made no announcements as to who’s going where,” and the Chicago Police Department felt compelled to issue a statement state that “[i]f federal agents are deployed, it is critical that they coordinate with the Chicago Police Department and work alongside us to fight violent crime in Chicago.”[26]
Third, Mayor Lori Lightfoot issued a lengthy letter[27] to President Trump wherein she states, inter alia, the following: (a) unilateral deployment of any Portland-like federal presence in the city would be dangerous, immoral, and unconstitutional;[28] and (b) if the federal government wants to help Chicago, they should partner with Chicago local law enforcement and existing investigations, more strictly crack down on illegal firearms, and invest in our communities.[29]
Here is where that previous legal point about a general “police power” becomes important. In the four days after they stated they planned to take their unconstitutional policing actions in Portland “around the country,” President Trump and his surrogates raged inconsistently about “crime,” “anarchy,” and damage to monuments in liberal cities. While the precise nature of the crisis which needed to be addressed varied wildly, what stayed constant was the promise to intervene without even feigning concern that these “Democrat-run cities” consented. This is ALSO patently unconstitutional, as “[t]he Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central Government, than the suppression of violent crime and vindication of its victims.”[30] This vagarious scaremongering taken in conjunction with DHS’ public promise to go national, leaves us with a President who spent most of last week essentially threatening to exercise an unconstitutional federal “police power” to unconstitutionally violate the rights of citizens in cities run by his political opponents. Moreover, the central target of this lawless frothing rage was Chicago — my home and a city President Trump has an infamous antipathy for. I was, to understate the issue, quite concerned.
Thankfully, in the following days, both the President and DHS abruptly changed course.
On July 21, 2020, DHS Secretary Chad Wolf changed his tune from “we are about to roll roughshod nationwide” to describing Portland as “unique” and that “what we have in Portland is very different from what we see in any other city.”[31] For whatever it is worth, DHS has completely failed in whatever they are trying to accomplish in Portland anyways — they are currently being beaten back by mothers and leaf blowers — so maybe it is good for everyone involved if Portland is “unique.”
Then, finally, on July 22, 2020, President Trump called Mayor Lightfoot and the two had a private conversation. Though the President has not, to my knowledge, made a public statement about the conversation, Mayor Lightfoot has relayed that, essentially, the President accepted her proposed scope of law enforcement in the city; i.e. “send[ing] federal resources to Chicago to supplement ongoing federal investigations pertaining to violent crime [… with …] all resources will be investigatory in nature and be coordinated through the U.S. Attorney’s office.”[32] That same day, the President announced that the officers sent to Chicago would be part of an expansion of “Operation Legend” — a federal anti-violence operation which is decidedly inside the law though, notably, hitherto had no public association with Chicago.[33]
From July 22, 2020 to the present, the only thing I have read about “Operation Legend” actions in Chicago is that three men have been arrested and charged with illegal possession of firearms and ammunition. It is, of course, possible that a host of police actions — good and bad — have occurred which are not public knowledge.
*** Summary and Opinion ***
SO! Here is my summary and opinion on the foregoing. Warning, a lot of this is informed speculation but speculation, nonetheless. Please do not take this as gospel.
Essentially, I think this nightmare started in late June 2020 when President Trump realized that he was getting trounced in the polls so badly that he was almost statistically a lock to lose the November election. His former campaign manager, Brad Parscale, was an expert at running social media campaign tactics which focused on agitating culture war resentment towards “liberals” in its audience. However, due to his failure in combating the coronavirus, this message was no longer performing, and President Trump wanted to pivot to something new and more dramatic. That message came in the form of “standing up for law and order against those anarchic city dwelling liberals who hate this country” which he quickly adopted without really understanding any of the legal limitations he would face by essentially running a campaign re-branding through the federal government.
From here, I’d guess that around early July 2020, President Trump noted that Portland, though far from being anarchic or even as bad as Seattle, was a “liberal” city with highly visible protesters advancing a message his base would find unappealing and, conveniently, already had a contingent of federal officers deployed there to, inter alia, protect monuments. From there he reached out to DHS Secretary Chad Wolf — a desperately loyal lobbyist-turned-unlawfully-still-unconfirmed-cabinet-secretary with no law enforcement or military experience — to see what could be done. I would imagine the pair of very stable geniuses agreed on a game plan of (a) Trump orders Wolf to “agitate / foment,” “look strong on camera,” and, most importantly, “scare the bejesus out of everyone” in Portland; and (b) in return, Wolf gets to fulfill his Handmaid’s Tale cosplay fantasy and expand his little operation nationwide. They tried this and, thankfully, the country’s thinking people immediately revolted in disgust and, as a brief aside, his approval / polling figures have dropped even lower.
Undeterred and, more importantly, unwilling to give up on a new campaign slogan so quickly when Bill Stepien was just started getting working on it, President Trump pushed forward and told Wolf he would make good on his “around the country” DHS promise. Trump did his word salad scaremongering in the media for a couple days, DHS doubled-down on their monstrous abuses, and DHS prepared for similar actions in Chicago and other cities — exactly as they said they would.
However, at some point, and I suspect it literally was the early morning of July 21, 2020 before Kayleigh McEnany and Chad Wolf went out to speak to the press, someone — I think almost certainly Attorney General William Barr — intervened and explained to the President that (a) what he was doing was obviously unconstitutional and the Supreme Court would be happy to tell him the same; (b) might legitimately start a riot that his government would flatly lose long before the November election; and (c) there were much easier ways to “look” strong while doing much less work — specifically through the expansion of preexisting lawful law enforcement operations. In addition to mayor Lightfoot’s communications stating unambiguously that tyrannical “Portland-esq” actions would not be tolerated in Chicago, I think these factors in conjunction led to President Trump’s silent pivot to the“okay-mayor-let’s-make-this-lawful-but-I’m-still-the-boss-unless-this-doesn’t-work-then-it’s-your-fault” position he’s in right now.
For which, I am completely thankful. I think that DHS secret policing of Chicago would have been an absolute moral calamity and caused a level of blow back that this President could not imagine. I deeply appreciate Mayor Lightfoot having the conviction to stand up to the President on this issue and, in essence, bring him to heel. I love this City and desperate wish for improvement to its serious gun violence problem. “Operation Legend” as presently agreed to is facially lawful and, so long as it stays that way, I wish them the best. President Donald Trump has previously insisted he could solve Chicago’s crime problem within a week. I guess we will see!
*** Final Message ***
What the President is directing federal officers to do in Portland is patently unlawful. Further, menacing Chicago with threats to deploy federal officers to unilaterally and non-consensually exercise general police powers or quell patently fictitious anarchy in our City is also patently unlawful. This lawlessness is made all the worse when you consider that the circumstantial evidence strongly suggests that these actions are predominantly motivated by President Trumps private political ambitions rather than any new change in circumstances or genuine public interest. Chicago’s homicide rate is truly horrible but, sadly, not statistically significantly more horrible this year than the first years of President Trump’s presidency during which the primary “aid” he gave my City was mockery and insults.[34]
I have heard is plenty of people making it abundantly clear that they do not really care if what the President is doing is “legal” so long as they personally view it as morally justified. To that, a final note.
Whatever personal opinions, feelings, or moral righteousness you may have on Portland or Chicago, they do not act as a unilateral veto on the constitutional rights of the men and women who live there. We are witnessing open and notorious lawlessness from the federal government in Portland and your schadenfreude, indifference, or silence enables this lawlessness and encourages its spread. To ape at Sir Thomas More above, if you are willing to “[c]ut a great road through the law to get after the Devil” you are not only profoundly un-American but patently naïve to believe the “Devil [won’t be] turned ‘round on you.”
Regards,
Scott Kane
[1] https://www.cnn.com/2020/07/18/us/portland-arrests-federal-authorities/index.html
https://heavy.com/news/2020/07/federal-secret-police-portland-videos-unmarked-vans/
https://www.thecut.com/2020/07/portland-protesters-federal-police-trump-dhs.html
[2] https://www.theguardian.com/us-news/2020/jul/24/portland-trump-order-federal-officers-veterans-protests?fbclid=IwAR3GljG-0R_-mlAnRM8kKRDj1ixSnOW2vyiixFWRx_avjJ9m7-l3sh6ifow
https://www.koin.com/news/protests/man-hit-with-federal-officers-impact-munition-at-protest-leaves-hospital/
https://www.oregonlive.com/portland/2020/07/judge-inclined-to-restrain-federal-law-enforcement-from-using-force-threats-dispersal-orders-against-journalists-legal-observers.html?fbclid=IwAR1wt2SRuqnGxS6OZj4DWI5zMzJIGKehuU4NAGyU89gOCIjtQ8mB3rjqYa8
https://www.opb.org/news/article/portland-police-arrest-3-journalists-during-violent-protests/
[3] https://www.npr.org/2020/07/17/892393079/dhs-official-on-reports-of-federal-officers-detaining-protesters-in-portland-ore
[4] https://www.dhs.gov/news/2020/07/16/acting-secretary-wolf-condemns-rampant-long-lasting-violence-portland
[5] https://lawandcrime.com/legal-analysis/two-dhs-officials-apparently-just-admitted-their-troops-have-been-violating-the-constitution/?fbclid=IwAR1TWwQ6J4NUAqVj45PN3cH6MoRVsCGjF-1ZHO-ciReeUrG-jpmV3MMfXPg
https://www.lawfareblog.com/unpacking-dhss-troubling-explanation-portland-van-video
[6] https://www.washingtonpost.com/outlook/2020/07/25/portland-trump-republicans-federalism/
https://www.cbsnews.com/news/portland-protests-acting-homeland-security-secretary-chad-wolf/
[7] https://thehill.com/homenews/state-watch/509055-protesters-breach-fence-of-federal-courthouse-in-portland-as-authorities
[8] https://www.nbcnews.com/news/us-news/portland-protesters-being-detained-chased-federal-agents-situation-intensifies-n1234616
[9] U.S. Const. art. I, II, and IV, amend. I, IV, V, and X. Ybarra v. Illinois, 444 U.S. 85 (1979); Dunaway v. New York, 442 U.S. 200 (1979); Hayes v. Florida, 470 U.S. 811 (1985).
[10] https://www.wbur.org/cognoscenti/2020/07/23/trump-federal-police-portland-laurence-tribe.
[11] https://www.latimes.com/opinion/story/2020-07-24/donald-trump-portland-border-patrol-constitution?_amp=true
[12] https://www.heraldextra.com/news/opinion/national-editorials/napolitano-how-totalitarianism-begins/article_eba5746e-f2c9-5411-9534-e0753cb764e9.html
[13] U.S. Const. art. IV, amend. X.
[14] See THE FEDERALIST №39, at 186 (James Madison); United States v. Morrison, 529 U.S. 598 (2000); and Castle Rock v. Gonzales, 545 U.S. 748 (2005).
[15] https://www.chicagotribune.com/news/breaking/ct-trump-tweets-quotes-chicago-htmlstory.html
[16] https://twitter.com/CurtisHouck/status/1284203059032330242?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1284203059032330242%7Ctwgr%5E&ref_url=https%3A%2F%2Fgraphics.chicagotribune.com%2Ftrump-comments-about-chicago-2020%2Fblurb.html%3FinitialWidth%3D622childId%3Dtrump-blurbparentTitle%3DE28098Perhaps20no20citizens20have20suffered20more20from20the20menace20of20violent20crime20than20the20wonderful20people20of20Chicago2C20a20city20I20know20very20well.E2809920When20Trump20talks20about20Chicago2C20we20track20it.20-20Chicago20TribuneparentUrl%3Dhttps3A2F2Fwww.chicagotribune.com2Fnews2Fbreaking2Fct-trump-tweets-quotes-chicago-htmlstory.html
[17] https://www.factcheck.org/2020/07/trumps-false-recurring-claim-about-bidens-stance-on-police/
[18] https://twitter.com/realdonaldtrump/status/1284894845614600194
[19] https://www.theguardian.com/us-news/2020/jul/24/donald-trump-conservative-media-protests-anarchy
[20] https://www.msn.com/en-us/news/politics/bill-stepien-trumps-new-campaign-manager-joined-2016-bid-amid-similarly-sinking-battleground-polling/ar-BB16NuYZ
[21] https://www.cnn.com/2016/08/26/politics/bill-stepien-hired-donald-trump-campaign/index.html
[22] https://projects.fivethirtyeight.com/polls/
[23] https://mobile.twitter.com/thehill/status/1285244981322690560
[24] https://www.independent.co.uk/news/world/americas/us-politics/donald-trump-chicago-violence-federal-police-afghanistan-a9629166.html
[25] https://www.cnn.com/2020/07/20/politics/trump-administration-federal-agents-chicago/index.html
[26] https://justthenews.com/nation/crime/potis-will-likely-send-federal-forces-chicago-murder-rate-doubles-mayor-pushes-back
[27] https://news.wttw.com/sites/default/files/article/file-attachments/Trump%20Letter%207.20.20%20FINAL_0.pdf
[28] “What we do not need, and what will certainly make our community less safe is secret, federal agents deployed to Chicago. Any other form of militarized assistance within our borders that would not be within our control or within the direct command of the Chicago Police Department would spell disaster. As any law enforcement official will tell you, what is needed more than anything in an operation to protect lives is a clear mission, a detailed operations plan, and a chain of command. Secret, federal agents who do not know Chicago, are unfamiliar with the unique circumstances of our neighborhoods and who would operate outside the established infrastructure of local law enforcement would not be effective, regardless of the number, and worse will foment a massive wave of opposition, Deploying resources like we have seen in Portland, Oregon, does not make residents safer, particularly when gun violence plays a significant role in Chicago’s loss of life. Quite the opposite. The deployment of secret, federal agents in Portland has undermined residents’ confidence in all levels of government and fomented more unrest. 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.”
[29] “As a former federal prosecutor, I can attest that more federal prosecution or investigatory resources to augment existing federal violent crime suppression efforts, under the leadership and control of the U.S. Attorney, could assist in keeping communities safe. Given the urgency of the gun violence, we need federal violent crime and particularly gun cases investigated and the worthy ones charged in weeks and months, not years […] [W] e very much want to partner with an executive branch that respects our city, inclusive of all our residents, regardless of race, ethnicity, country of origin, religion, sexual orientation or ability. Partnership includes respect that you have not shown our residents as of late in mocking the level of violence that challenges Chicagoans. Please stop with the rhetoric and find the moral courage to simply support the needed actions listed above: enact common sense gun laws, partner with our law enforcement actors through providing investigative resources, deliver on community based resources for public safety, and invest in our neighborhoods and residents. These acts will deliver on your promise to make Chicagoans safer-not derision, mandates, or militarized forces. I would be more than happy to have my team sit down with yours to go through the actionable policy and legislative items that you can support to help make these actions a reality.”
[30] United States v. Morrison, 529 U.S. 598 (2000).
[31] https://www.usnews.com/news/national-news/articles/2020-07-21/dhs-head-says-portland-is-unique-after-trump-comments-about-sending-forces-to-other-cities
[32] https://www.chicago.gov/city/en/depts/mayor/press_room/press_releases/2020/july/StatementPresidentTrump.html
[33] https://www.whitehouse.gov/briefings-statements/remarks-president-trump-operation-legend-combatting-violent-crime-american-cities/
https://www.wikiwand.com/en/Operation_Legend
[34] https://www.chicagotribune.com/news/breaking/ct-chicago-homicides-data-tracker-htmlstory.html
https://www.nytimes.com/2019/10/28/us/trump-chicago-visit.html
