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AMERICANS EVERYWHERE MUST SPEAK UP ABOUT PORTLAND

Americans everywhere should care deeply about what the Trump administration is doing to Americans in Portland – and give voice against it. As the highly esteemed and astute law professor John C. Jefferies, Jr.would say: it is Not Good. Before we talk about events in Portland, however, let us first consider why you might want to care enough to do something about it.

The United States is a Nation Ruled by Laws, Not Kings

The Rule of Law, not the rule of kings, is a founding principle of our country. It remains a core principle that defines who we are as Americans. It allows each of us to walk down a public street without fear of being grabbed, without cause, by government police and thrown into an unmarked van. It allows us to have a peaceful potluck with friends without fear that a government official will use violence against us just for getting together. It allows us to speak our mind against government policies, without worrying that those with power will use our speech as a reason to harm us. Before the Revolution, King George did not need to worry that he might violate personal freedoms of his American subjects. They did not have the freedoms we do.

The U.S. founders learned from King George and others like him that they wanted and needed a country governed by the rule of laws, not of men. The Rule of Law in the United States does not begin with the President. It does not begin with any political party. It begins with Our Constitution.

The Constitution is the highest law of our land. Indeed, the Constitution itself provides:

Senators and Representatives, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.

Article VI, Section 3 of the United States Constitution

There is no oath to the President. The President isn’t at the top.  The Constitution is.

The Constitution is short. The original document fits entirely onto a single page. We have amended it only twenty-seven times, but the first ten – our famous Bill of Rights – were immediate. There aren’t many words in our highest law, which makes them all the more important.

The original Constitution is mainly about one thing: power. The Constitution’s structure for our government is borne from the core principle that a single individual should not hold all power.  It divides power between three branches of government, and it further divides power between the federal government and the States, whose laws are also subject and subordinate to the Constitution.

The First Amendment to the United States Constitution provides that “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” This is the First Amendment to our Constitution. It is the first of the Bill of Rights. It is fundamental to who we are as Americans.

The U.S. Supreme Court has always ruled that none of the Bill of Rights, not even the First Amendment, is unlimited. But these Court decisions recognize that the limits on our individual rights must be constructed with care and exercised in a narrow and judicious manner. In 1969, for example, the U.S. Supreme Court (Shuttlesworth v. Birmingham) held, in protecting an American citizen’s right to protest and also allowing for certain limited restrictions, that any licensing requirement for “free expression in publicly owned places” is unconstitutional if it’s not narrowly defined and objectively applied.

The Constitution, again seeking to limit federal authority, provides that each state is empowered to establish and enforce laws protecting the welfare, safety, and health of the public within its state. The power of states is reflected in the fact that most criminal law is state law; most police forces are state police forces, not federal. While there is some federal criminal law, in comparison to state criminal laws, it is narrow and constrained.  There is no federal law giving a President the right to direct federal officers to occupy a city or a state or to dominate any part of a state, on his own accord, without an invitation from a state government that is seeking help.

Federal law gives federal authorities the right to conduct some actions within states, but these authorized acts are targeted and constrained. Federal agents are authorized to protect federal properties. Federal agents are authorized to enforce federal criminal laws, such as kidnapping, bank robbery, criminal conspiracy, human trafficking, mail fraud, and other specific laws. This all fits within our established system of laws.  These laws are all tailored to fit within the bounds of our Constitution.

Federal Officers are Doing Precisely What the Constitution Prohibits

Is the President following these laws? Is he abiding his oath to serve the Constitution? What are federal officers in Portland doing? As summarized on July 17 by Charlie Warzel, an opinion writer at large for The New York Times:

Thursday night [July 16] marked the 50th consecutive night of demonstrations in Portland, Ore. The protests began after the killing of George Floyd—tens of thousands of people took to the streets to protest police violence and racial injustice. Since then, the protests have grown smaller, but clashes between law enforcement officers and protesters have escalated—on July 12, videos circulated of a federal officer shooting a protester in the head with a nonlethal munition, resulting in a skull fracture. Coverage of the unrest has caught the attention of President Trump, who vowed to ‘dominate’ the protesters with federal law enforcement officers.

The New York Times reported the story of  Christopher David, a former Navy Civil Engineering Corps Officer and a 1988 graduate of the U.S. Naval Academy:

“I wasn’t even paying attention to the protests at all until the feds came in,” Mr. David said. “When that video came out of those two unmarked guys in camouflage abducting people and putting them in minivans, that’s when I became aware.”

He had taken a bus to the Portland courthouse and was about to leave around 10:45 p.m. when federal officers emerged and began advancing on the protesters. He said he felt the need to ask the officers, Why were they violating their oath to the Constitution?

Instead of getting an answer on Saturday, Mr. David, a 6-foot-2, 280-pound former Navy varsity wrestler, found himself being beaten with a baton by a federal officer dressed in camouflage fatigues as another doused him with pepper spray, according to video of the encounter.

As Mr. David noted, one widely circulated video from Portland shows a group of men in camouflage military-like uniforms emerging from a van that one might see in anywhere USA, grabbing a protester walking alone on the sidewalk, not on or next to federal property, forcing him into the van without telling him who they were or why they grabbed him, and driving away.  Another video shows federal police using tear gas and flash bangs on a single line of about two dozen mothers linked arm-to-arm, wearing bike helmets, and chanting “moms are here, Feds stay clear.”

Every Oregon official that might have authority to request help from federal officers has pleaded for the federal agents to leave. Portland Mayor Ted Wheeler told NBC News that the presence of federal agents was making things worse: “…They’re not wanted here. We haven’t asked them here. In fact, we want them to leave.” Oregon Governor Kate Brown asked the President directly to withdraw these agents from her state. The Washington Post reported on July 17 that the Governor said: “I told him that the federal government should remove federal officers from our streets. I said it’s like adding gasoline to a fire.” The Post also reported that Governor Brown is convinced that “‘they are not interested in problem solving,’ and this has ‘nothing to do with public safety.'”

Oregon Attorney General Ellen Rosenblum has sued to prohibit these federal agents from making further arrests and continuing to violate the Constitutional rights of protesters and those detained. “I think every American needs to be concerned about what’s happening here in Portland. These federal agencies are operating with no transparency and against the will of just about every leader in our state,” said Rosenblum.

Federal officials claim that federal law gives their agents the authority to do what they are doing, regardless of whether proper state authorities request their presence. These claims are specious, at best. It is not even a close call.

As reported, some some individuals in Portland are using the protests as cover to intentionally damage property, but the federal agents are not limiting their targets to the specific individuals violating federal law by damaging federal property.  They are not using their authority narrowly, when they use their weapons against mothers standing in a line chanting or when they strike and pepper spray a U.S. Navy veteran who is trying to talk with them. These federal officers are not judiciously using their authority when they grab a man walking alone on the street and take him by force into an unmarked van and drive him away to an undisclosed location – all without any probable cause or identifying themselves as federal officers.

Whatever the reason, the federal officers are making the streets of Portland more lawless, not less. These federal officers are openly and egregiously violating the rights of peaceful, law-abiding mothers, veterans, and other Americans, rather than protecting them. These federal officers are jeopardizing the safety of local law enforcement, not bolstering it.

Each of us in America is subject to a rule of law, including the President and federal agents, and the Chicago Council of Lawyers strongly supports Attorney General Rosenblum’s lawsuit seeking to protect Oregonians and uphold their fundamental American rights.

Trump is now Primed to Attack the Rule of Law in Chicago

The President now appears to be targeting Chicago, just as he has targeted Portland – but this time, the President is not even offering the guise of protecting federal property as the reason.  The Chicago Tribune reported on July 20 that the “U.S. Department of Homeland Security is crafting plans to deploy about 150 federal agents to Chicago this week.” The paper reports that the Department has not disclosed its plan for the additional agents, and that even the Superintendent of the Chicago Police does not know why this administration is sending additional federal law enforcement.

The President has talked as recently as July 20 about sending in troops to fix the local violence problem in Chicago. It is undeniable that parts of Chicago do have a serious gun violence problem that needs to be fixed. Reasonable people have asked whether more government policing would help; other reasonable people have asked whether it might help to do policing in another way. Whatever the solution or solutions might be, the President has no legal authority – without a request from legally authorized Illinois officials – to move federal officers to Chicago for the purpose of confronting local crime issues.  Neither Chicago Mayor Lori Lightfoot nor Illinois Governor J.B. Pritzker have requested additional federal officers for that purpose.

There have been ongoing peaceful protests on issues of anti-Black racial injustice in our town, but there has been little-to-no reported property damage from the recent demonstrations.  Further, and more to the point, we are not aware of a single report of any damage to federal properties from the recent protests. Indeed, because of COVID-19, the Chicago Loop and other places in the city, where federal properties are located, now look eerily like a ghost town. Yet, Trump has recently grouped Portland with Chicago and other American cities, such as Detroit, Philadelphia, and New York, as places of “anarchy.” For Chicago, and we expect for the other named cities too, this is less true than saying that a naked emperor is wearing the most beautiful clothes ever made from satin and silk. Chicago is dealing with modern American problems, to be sure, which now include COVID-19 – but Chicago is not a place where anarchy reigns.

We should all care about what is happening in Portland. Our system starts with the Rule of Law, not the rule of a king or an emperor or even a President.

President Trump and the leaders of the officers in his administration apparently have no shame. The Trump administration started to use federal agents dressed in military gear to attack peaceful, law-abiding citizens in Portland. Now, it is moving federal officers into Chicago to possibly do the same thing in our city; it is threatening to deploy more federal officers in other cities throughout America. Our government’s power derives from our Constitutional system, and the executive branch – the President, and all federal officers acting at his direction – is to operate within this system, within these laws. Whatever federal agents are now doing in Portland, we do know one thing about their actions: they are not doing them in the name of the law.