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William Barr, U.S. attorney general, speaks during an event on combating violent crime in American cities in the East Room of the White House in Washington, D.C., on Wednesday, July 22, 2020. Photographer: Sarah Silbiger/UPI/Bloomberg

Portland's Problem With the Feds Is Going National

The use of federal law enforcement at protests in Portland, Oregon, has some questioning the legality of the effort and the Trump administration's motivation behind the operation.

At least four lawsuits have been filed in Oregon over the use of federal officers, whose presence have drawn in even more people to protests. And President Trump and Attorney General William Barr announced this week that they're expanding "Operation Legend"—a DOJ mission started in Kansas City, Missouri, to combat what they claim is a rise in violent crime—to other cities. That's over protestations from officials in those targeted cities, who point out that violent crime rates are generally declining, not rising.

The outcry over the use of federal force is reminiscent of the backlash in Washington, D.C., after feds used tear gas to clear a crowd of protesters at Lafayette Square so Trump could have a photo op at a church. On Thursday, DOJ Inspector General Michael Horowitz announced his office "is initiating a review to examine the DOJ's and its law enforcement components' roles and responsibilities in responding to protest activity and civil unrest in Washington, D.C., and in Portland, Oregon, over the prior two months." He said that investigation includes an examination of the use of force in Lafayette Square, which is also the subject of multiple lawsuits in D.C.

In Oregon, state Attorney General Ellen Rosenblum is asking a federal judge to issue a temporary restraining order against the administration. But, as Politico's Josh Gerstein reports, U.S. District Judge Michael Mosman was highly skeptical during a Wednesday hearing of issuing such a ruling.

The ACLU and lawyers with BraunHagey & Borden were also in court Thursday for a lawsuit challenging force used by U.S. Marshals and DHS officers against reporters and legal observers in Portland. In a filing earlier this week, DOJ attorneys argued the injunction the parties are seeking "would be unworkable in light of the split-second judgments that federal law enforcement officers have to make while protecting federal property and themselves during dynamic, chaotic situations."

"By granting immunity to journalists and observers from lawful orders to disperse, the injunction would effectively grant those individuals immunity from otherwise applicable legal requirements and would improperly bind the hands of law enforcement, including by preventing them from taking appropriate action when individuals are engaging in criminal conduct," the filing continues.

Other cities are also bracing for the arrival of federal forces. Chicago Mayor Lori Lightfoot said she's gotten word that federal officers are coming to her city, but said she expects them to work alongside city and state officials to address violence.

And at a Senate hearing this week, New Mexico Sen. Martin Heinrich pressed a high-ranking DOJ official about the deployments after learning officers are also set to arrive in Albuquerque. He requested associate deputy attorney general Patrick Hovakimian answer a series of questions in writing, among them: "How will DOJ work with city officials such as the chief of police and the mayor to ensure cooperation, coordination, and some legal guardrails? Because we don't want the Portland model coming to the city of Albuquerque, frankly."

Democratic Sen. Ron Wyden, who represents Oregon, also grilled Hovakimian about the use of federal forces in Portland. "I believe it is unconstitutional, and I believe the country needs government lawyers who aren't going to use the law as a smokescreen to justify this unconstitutional invasion over the objections of local officials," the senator said.

Hovakimian said he believed that Americans should be protected while exercising their First Amendment rights. But he also said "peaceful protest is one thing, and violence is another," a response that frustrated Wyden.

At the end of the day, the presence of federal officers presents one question: Is what they're doing legal? The short answer is generally yes—but it's a stretch.

Steve Vladeck, a constitutional law professor at the University of Texas School of Law, wrote in Lawfare that federal officers generally have the power to defend federal property, like the courthouse in Portland that has been the center of recent protests.

"Protecting a federal courthouse from vandalism is an easy case for the use of federal law enforcement authorities," Vladeck wrote. "If, as media reports have suggested, federal officers are patrolling streets a significant distance from federal buildings (and arresting protestors who pose no imminent threat thereto), that would be far murkier."

Experts have also noted that federal authorities still need probable cause to arrest individuals—which officers appear to lack in videos showing them seizing civilians and taking them in unmarked vehicles. At the same time, those people don't seem to be technically arrested, raising even more questions about the exact tactic at play.

Garrett M. Graff argued in the Washington Post this week that the use of federal officers is technically legal under existing law, but officials at the Department of Homeland Security and other federal agencies have bent norms in a way that "has now culminated in the transformation of what are supposed to be federal building guards into an intimidating catchall invading army."

He noted that top DHS officials—including Ken Cuccinnelli, Chad Wolf and general counsel Chad Mizelle—are at the department in an acting capacity. "Which is how Wolf and Cuccinelli, two men never confirmed to lead DHS, turned to a man never confirmed as general counsel to back a dubious legal interpretation that allowed them to order the nation's largest and third-largest federal law enforcement agencies, Customs and Border Protection and ICE, into Portland using powers never intended to turn the Federal Protective Service…into the nation's equivalent of all-purpose federal riot police," Graff wrote.

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Announcing Two Incredible Keynote Speakers for the Women, Influence & Power in Law Conference

WIPL is known for having some of the most engaging and energizing keynote speakers attend to share their thoughts, experiences, war stories and tips on effective leadership. And this year is no exception. This year, we are grateful to welcome two remarkable women come and inspire us: Tina Tchen, the President and CEO of the "Times Up" Legal Defense Fund and Paula Boggs, Founder of Boggs Media LLC and Former Executive Vice President, General Counsel and Secretary, Law and Corporate Affairs at Starbucks from 2002-2012. READ MORE

U.S. District Judge Rudolph Contreras will hear arguments Friday on GOP members of Congress's lawsuit challenging proxy voting rules adopted in the House due to the pandemic. Credit: Diego M. Radzinschi/NLJ

A Look Ahead

7/24: Remember when House Republicans decided to sue Nancy Pelosi over proxy voting rules? A federal judge in Washington, D.C., will hear arguments in the case. As I've previously written, House general counsel Douglas Letter and GOP lawyer Charles Cooper have already faced off over this same issue. Nothing like a socially distanced reunion.

7/27: It's antitrust day on Capitol Hill: Amazon's Jeff Bezos, Facebook's Mark Zuckerberg, Apple's Tim Cook and Google's Sundar Pichai are all set to testify before the House Judiciary Committee's antitrust panel about the growing power and influence of their platforms. House Republicans have also asked Twitter's Jack Dorsey to make an appearance.

7/28: It's finally here, barring (get it?) a last-minute cancellation—Attorney General William Barr will make his debut before the House Judiciary Committee. There's about a million things that House Democrats want to ask him. Get ready for partisan sparring on the dais, plus lots of discussion about the "rule of law" and what state it's in. Also happening this date—former House Judiciary counsel Norm Eisen's book on impeachment comes out. I'm sworn to secrecy on the details of the book, but stay tuned next week for more on that.

7/29: The House Oversight Committee is holding an emergency hearing after Trump's executive action this week blocking undocumented immigrants from being counted toward the population used to determine how many House seats each state gets. The Democrats leading the committee have invited top census officials in the administration, as well as three former officials.