Columns share an author's personal perspective and are often based on facts in the newspaper's reporting.
By now, we have become wise to President Donald Trumps legal strategy push the limits to advance his own interests, regardless of whether his conduct complies with settled norms. Take advantage of the resulting delay to maintain the status quo and, even if he ultimately loses in court, exploit the narrative that our institutions are politically motivated or out of touch to score points with his disgruntled base. It is a heads-I-win, tails-you-lose business plan.
That strategy is on full display in Portland, Oregon, where Trump has sent federal agents to dominate the streets against protesters. Like many cities across the country, Portland has seen weeks of unrest following the killing of George Floyd in police custody in Minneapolis on Memorial Day. During 54 days of demonstrations in Portland, property damage and violence has occurred. Even so, Portland Mayor Ted Wheeler and Oregon Gov. Kate Brown have asked federal agents to leave because they believe their aggressive tactics are causing tensions to escalate.
An internal Department of Homeland Security memo says that the agents are not trained in riot control or mass demonstrations, and their lack of preparation shows. Federal agents, dressed in camouflage military fatigues and armed with tactical gear, have fired tear gas, rubber bullets and flash bang explosives into crowds. Oregon Attorney General Ellen Rosenblum has filed a lawsuit alleging that agents are pulling protesters into unmarked vans in violation of their Fourth Amendment rights against unreasonable seizures. In recent days, a "wall of moms" has gathered outside the federal courthouse, chanting, Moms are here. Feds stay clear.
Trump has threatened to send federal "rapid deployment teams" to other cities that are experiencing protests, prompting a letter in opposition from several mayors. The letter to Attorney General William Barr and acting Secretary of Homeland Security Chad Wolf complains of violations of norms and expectations by federal agents, such as the wearing of insignia, coordination with local law enforcement, and tenets of federalism.
Why would Trump use the scarce resources of the federal government to respond to local protests when local leaders oppose this course of action? The answer is that he does not really care about public safety. He cares only about his own reelection, even if he has to disrupt public safety to achieve it. And if he crosses a legal line in the process, he can brag to his political supporters that he is tough on crime.
Trump is campaigning on a law-and-order theme, and is engaging in political theater to prop up his words. During his interview with Chris Wallace on Fox News on Sunday, Trump falsely accused Joe Biden of advocating to defund the police, a baseless claim that was immediately refuted. Portland and other cities give Trump the opportunities to flex his authoritarian muscles in front of national television audiences.
Use of federal agents to protect federal property is itself lawful. With protesters spray-painting the federal courthouse, the Federal Protective Service (FPS) is well within its mission to defend the physical property, and arrest anyone involved in damaging it. But Barr and Wolf are looking to see how far they can push that authority.
Since the 1980s, Barr has used the pretext of protecting federal property as a way to get a foot in the door to quell civil unrest. He admitted in a 2001 interview with the University of Virginia's Miller Center that he used such tactics to respond to unrest in the Virgin Islands following Hurricane Hugo in 1989. As he put it, We can send people down to defend the federal function, keep our courts open, and if they see any crime being committed in front of them, then, as law enforcement officers, they can make the arrest.
Wolf, who has referred to protesters as "lawless anarchists," has followed that playbook sending to Portland agents from other DHS agencies, such as Customs and Border Protection, to support FPS in defending federal property. Once on the ground, the agents are permitted to arrest anyone who commits a crime in their presence. This activity has led to reports of arrests of protesters on the streets, even away from the federal courthouse, which may be an unauthorized stretch of that authority.
Pushing the legal limits of federal authority has sparked outrage in Portland and elsewhere. Someone who really cared about public safety would be looking to bring calm to chaos, not the other way around.
While legal challenges against Trumps tactics may eventually succeed, Trump can continue to occupy cities in the meantime. And even if the courts one day rule against him, he can brag to his supporters that he was so tough on crime that even the courts made him stop.
Ultimately, Trumps authoritarian tactics are making our cities less safe and damaging the credibility of federal agencies that will hamper their ability to enforce the law for years to come. Like everything else Trump touches, federal law enforcement agencies will be tarnished beyond recognition.
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School, an NBC and MSNBC legal analyst, and a member of USA TODAY's Board of Contributors. Follow her on Twitter: @BarbMcQuade.
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