Constitutional crisis looms over federal agents in Portland

A federal officer points to a protester while clearing the street in front of the Mark O. Hatfield U.S. Courthouse on Monday in Portland, Oregon. The federal police response to the ongoing protests against racial inequality has been criticized by city and state elected officials. (Photo by Nathan Howard/Getty Images/TNS)

PORTLAND, Ore. — A potential constitutional crisis is looming over the actions of federal officers at protests in Oregon’s largest city that have been hailed by President Donald Trump but were done without local consent. The standoff could escalate there and elsewhere as Trump says he plans to send federal agents to other cities, too.

In Portland, demonstrators who have been on the streets for weeks have found renewed focus in clashes with camouflaged, unidentified agents outside the city’s U.S. courthouse. Protesters crowded in front of the courthouse and the Justice Center late Monday night, before authorities cleared them out as the loud sound and light of flash bang grenades filled the sky.

State and local authorities, who didn’t ask for federal help, are awaiting a ruling in a lawsuit filed late last week. State Attorney General Ellen Rosenblum said in court papers that masked federal officers have arrested people on the street, far from the courthouse, with no probable cause and whisked them away in unmarked cars.

Meanwhile, the Department of Homeland Security was planning to deploy about 150 of its agents to Chicago, according to an official with direct knowledge of the plans who was not authorized to speak publicly and spoke to The Associated Press on condition of anonymity.

The agents are expected to stay for at least two months and could be sent to other locations at some point, the official said. Homeland Security said in a statement that the department does not comment on “allegedly leaked operations.”

“We’re going to have more federal law enforcement, that I can tell you,” Trump said Monday. “In Portland, they’ve done a fantastic job. They’ve been there three days, and they really have done a fantastic job in a very short period of time.”

As Oregon officials have, Chicago’s mayor has pushed back against the deployment of federal agents. It’s not clear what exactly what they will do there, but Trump has pointed to rising gun violence in Chicago, the nation’s third-largest city, where more than 63 people were shot, 12 fatally, over the weekend.

Homeland Security agents generally do lengthy investigations into human trafficking, drugs and weapons smuggling and child exploitation, but they have also been deployed to the U.S.-Mexico border during the height of the crisis there to help.

The tussle comes about two weeks ago after the Trump administration sent more than 100 federal law enforcement officers to Kansas City to help quell a rise in violence after the shooting death of a young boy there.

The ACLU of Oregon has sued in federal court over the agents’ presence in Portland, and the organization’s Chicago branch said it would similarly oppose a federal presence.

“This is a democracy, not a dictatorship,” Oregon Gov. Kate Brown, a Democrat, said on Twitter. “We cannot have secret police abducting people in unmarked vehicles. I can’t believe I have to say that to the President of the United States.”

Constitutional law experts said federal officers’ actions in the progressive city are a “red flag” in what could become a test case of states’ rights as the Trump administration expands federal policing.

“The idea that there’s a threat to a federal courthouse and the federal authorities are going to swoop in and do whatever they want to do without any cooperation and coordination with state and local authorities is extraordinary outside the context of a civil war,” said Michael Dorf, a professor of constitutional law at Cornell University.

“It is a standard move of authoritarians to use the pretext of quelling violence to bring in force, thereby prompting a violent response and then bootstrapping the initial use of force in the first place,” Dorf said.

The Department of Homeland Security tweeted that federal agents were barricaded in Portland’s U.S. courthouse at one point and had lasers pointed at their eyes in an attempt to blind them.

“Portland is rife with violent anarchists assaulting federal officers and federal buildings,” the tweet said. “This isn’t a peaceful crowd. These are federal crimes.”

Top leaders in the U.S. House said Sunday that they were “alarmed” by the Trump administration’s tactics in Portland and other cities. They have called on federal inspectors general to investigate.

Trump, who’s called the protesters “anarchists and agitators,” said the DHS and Justice Department agents are on hand to restore order at the courthouse and help Portland.

Nightly protests, which began after George Floyd’s death at the hands of Minneapolis police, have devolved into violence.

The Trump administration’s actions run counter to the usual philosophies of American conservatives, who typically treat state and local rights with great sanctity and have long been deeply wary of the federal government — particularly its armed agents — interceding in most situations.

But Trump has shown that his actions don’t always reflect traditional conservatism — particularly when politics, and in this case an impending election, are in play.

The protests have roiled Portland for more than seven weeks. Many rallies have attracted thousands and been largely peaceful. But smaller groups of up to several hundred people have focused on federal property and local law enforcement buildings, at times setting fires to police precincts, smashing windows and clashing violently with local police.

Portland police used tear gas on multiple occasions until a federal court order banned its officers from doing so without declaring a riot. Now, concern is growing that the tear gas is being used against demonstrators by federal officers instead.

Anger at the federal presence escalated on July 11, when a protester was hospitalized with critical injuries after a U.S. Marshals Service officer struck him in the head with a less-lethal round. Video shows the man, identified as Donavan LaBella, standing across the street from the officers holding a speaker over his head when he was hit.

Court documents filed in cases against protesters show that federal officers have posted lookouts on the upper stories of the courthouse and have plainclothes officers circulating in the crowd. Court papers in a federal case against a man accused of shining a laser in the eyes of Federal Protective Service agents show that Portland police turned him over to U.S. authorities after federal officers identified him.

Mayor Ted Wheeler, who’s has been under fire for his handling of the protests, said on national TV talk shows Sunday that the demonstrations were dwindling before federal officers engaged.

“Their presence here is actually leading to more violence and more vandalism,” Wheeler said on CNN’s “State of the Union.”

Indeed, crowds of demonstrators had begun to dwindle a week ago, and some in the liberal city — including Black community leaders — had begun to call for the nightly demonstrations to end.

But by the weekend, the presence of federal troops and Trump’s repeated references to Portland as a hotbed of “anarchists” seemed to give a new life to the protests and attract a broader base.

On Sunday night, a crowd estimated at more than 500 people gathered outside the courthouse, including dozens of self-described “moms” who linked arms in front of a chain-link fence outside the courthouse. The demonstration continued into Monday morning.