We The People

Portland, Protests and Presidential Power

July 30, 2020

Share

Portland has seen more than 60 consecutive days of protests since the killing of George Floyd. The protests escalated when federal forces were deployed in Portland to protect its federal courthouse, angering protestors and local officials who said they did not ask for the federal deployment. On Wednesday, Oregon Governor Kate Brown announced that federal officials will soon begin withdrawing from the city, although they remained as of Thursday morning. On today’s episode, we’ll discuss the rapidly evolving situation in Portland—exploring the First, Fourth, and Fifth Amendment rights of protestors; the president’s power to deploy federal forces in the states to protect federal property, and the limits on that power; and more. Host Jeffrey Rosen was joined by John Inazu, an expert on the First Amendment right of assembly, and Bobby Chesney, an expert on the president’s power to deploy federal forces.

FULL PODCAST

PARTICIPANTS

John Inazu is the Sally D. Danforth Distinguished Professor of Law and Religion at Washington University in St. Louis where his scholarship focuses on the First Amendment freedoms of speech, assembly, and religion, and related questions of legal and political theory. He is the author of Liberty’s Refuge: The Forgotten Freedom of Assembly among other works. He recently appeared in our panel on policing and protests—which we’ll link to in our show notes— and is the author of the essay on freedom of assembly on the National Constitution Center’s Interactive Constitution.  

Bobby Chesney holds the James Baker Chair and is the Associate Dean for Academic Affairs at the University of Texas School of Law. He is also the Director of UT's Robert S. Strauss Center for International Security and Law. He studies US national security policies and institutions, previously served in the Justice Department, is a co-founder and contributor to Lawfare, and co-hosts the National Security Law Podcast.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

This episode was engineered by the National Constitution Center’s AV team, and produced by Jackie McDermott. Research was provided by Maggie Gillespie and Lana Ulrich.

ADDITIONAL RESOURCES

Stay Connected and Learn More
Questions or comments about the show? Email us at [email protected].

Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr.

Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.

Please subscribe to We the People and Live at the National Constitution Center on Apple PodcastsStitcher, or your favorite podcast app.

TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center. And welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.

The city of Portland has seen more than 60 days of protests since the killing of George Floyd, the protests escalated when federal forces were deployed in Portland to protect the federal courthouse and on Wednesday the governor Kate Brown announced that federal officials will soon be leaving the city.

On today's episode, we discuss the rapidly evolving situation in Portland, as well as exploring the constitutional rights of the protestors and the president's power to deploy federal forces in the States. I'm joined by two of America's leading experts on the First Amendment, right of assembly and the president's power to deploy federal forces.

Bobby Chesney holds the James Baker Chair and is the Associate Dean for Academic Affairs at the University of Texas School of Law. He's also the Director of the University's Robert Strauss Center for International Security and Law. He is a co-founder and contributor to Lawfare and co-hosts the National Security Law podcast.

Bobby, thank you so much for joining.

Bobby Chesney: [00:01:31] Thanks for having me here.

And John Inazu is the Sally D. Danforth Distinguished Professor of Law and Religion at Washington University in St. Louis, where he focuses on the First Amendment freedoms of speech assembly and religion. He is the author of Liberty's Refuge: The Forgotten Freedom of Assembly.

He recently appeared on our policing and protests panel. And is the author of the essay on freedom of assembly on the National Constitution Center's Interactive Constitution. John, it is wonderful to have you back.

John Inazu: [00:02:05] Jeff. It's great to be back with you.

Rosen: [00:02:07] Bobby, as we are recording a governor, Kate Brown of Oregon has said that teams will begin a withdrawal of federal forces in the next few days.

Tell us what is going on on the ground in Oregon, which federal forces are there and what agencies do they represent?

Chesney: [00:02:26] So we appeared to have a little bit of a dispute this afternoon regarding just what was agreed to, but the basic outline of the story is this, the controversy in Portland in recent days has centered around the role of personnel from the Department of Homeland Security who have been at the Hatfield Federal Courthouse.

Participating in a protection of the building in terms of their mission. But, at least at times, perhaps also operating away from the courthouse, taking people into custody, in connection with events that may have transpired earlier at the courthouse. This has been intensely controversial, particularly because of the various tactics, which I know we'll talk about in a moment that these personnel had been using, the agreement that was announced today between the state and the city and, DHS, suggested that these additional personnel that DHS had sent to Portland will eventually be withdrawn from the city altogether and will begin to be drawn withdrawn right away from the immediate courthouse area, in exchange for the state police in Oregon to play an active and hopefully sufficient role, around the external area, outside the courthouse to keep damage from, to the building from happening.

The DHS authorities are out this afternoon. Characterizing this as a contingent situation where it depends on what unfolds, suggesting that they're not yet committed to pulling these additional federal personnel out. Whereas the local and state authorities had described it as a done deal. So I have a feeling that, tonight we're going to have all eyes once again on downtown Portland.

Rosen: [00:04:02] John, what is unusual about the deployment of these troops is 60 days a long time to respond to protests. And has this ever happened in the past?

Inazu: [00:04:13] Well, we've certainly seen longstanding protests that go on for months and months. The overall duration of these protests might be on the short end compared to some other historical references, the sustained presence of federal law enforcement and carefully we should say, not federal military, but federal law enforcement from various agencies, over a period of time sets up some important questions of how the protection of First Amendment rights unfolds day after day. So in Portland, but also in other cities, we have a pattern of events where there are mostly peaceful protests during the day.

Sometimes those protests turned violent or turn into imminent lawbreaking at night, in which case, officials federal or state can enforce unlawful assembly provisions or riot provisions. But then there becomes an important set of questions of how long do those provisions last at what point can and should officials say, okay, we're now calm again.

And we can let the peaceful protests reappear and day after day, when you, the cycle of peaceful protest followed by some violence, there's a, there's a tremendous pressure. For all actors involved for protestors, for federal law enforcement, for local law enforcement to figure out the right dance of how you negotiate First Amendment rights and also protect against the violent lawbreaking that has been occurring.

Bobby, which federal law enforcements are involved here. We have personnel from the U.S. Marshall, the Customs and Border Protection and Immigration group and customs enforcement. Why are they there? And some have charged that by not invoking the Insurrection Act or other federal authorities, the President is using these agencies to make an end run around restrictions on his power to deploy federal forces.

Chesney: [00:05:57] So it's really important that we all be clear about which entities we are and are not talking about in, and it's of course, all the Portland stuff is happening against the backdrop of our recent experience with unrest in suppression of protest in Washington, where there was intense focus on the role played or potentially to be played national guard units, or even by the regular armed forces there there's no military element.

Certainly not yet at least in Portland. So what are we talking about instead? We're talking about federal law enforcement personnel. Yes, but here's where it gets interesting, we're not primarily talking right now about Justice Department, law enforcement personnel. We could be, we could be talking about the FBI, the DEA and the ATF.

We're not, with the exception of the U.S. Marshall Service, the U.S. Marshall Service is part of the Justice Department. And part of its core duty is to protect courts and the process of courts. So U S Marshall service deputies, Always are in federal courthouse buildings providing security there, but they're not the only ones with a federal building or property focused protective law enforcement mission in the Department of Homeland Security is where we find the so-called, Federal Protective Service, FPS.

An FPS is charged with protecting federal property more generally, and other parts of Homeland Security, including immigrations and customs enforcement. Customs and border protection personnel from these other agencies, can by statute be in effect deputize to, expand the ranks of those performing the federal protective service mission.

And generally speaking, that's what's happened here. When, when you're looking at this from the perspective of Washington DC and you're asking, where do I find all my law enforcement people that I might send out to protect the federal courthouse in Portland? You've only got so many US Marshals at DOJ.

You've only got so many Homeland Security Federal Protective Service Personnel, but you've got a lot of Customs and Border Protection personnel and immigration and customs enforcement and they can lawfully be deputized into this property protective mode. And that's where it starts getting really interesting because the hook I'm suggesting for all of this is that their basis their lawful authority is to protect that courthouse.

But that comes with the ability to do law enforcement functions, if in the course of performing that mission, you encounter law breaking, and that's the root of how we end up with what is being described as surge, a federal law enforcement personnel to Portland.

Rosen: [00:08:30] So John, I hear Bobby saying that the core of the federal government power here is its ability to use federal law enforcement officers to protect federal buildings like the U S courthouses after 9/11, Congress specifically authorized the Department of Homeland Security to use its law enforcement officers for this purpose.

But then, Bobby says that the officers, once there can also arrest people for engaging in lawbreaking at the scene. At what point does the ability to arrest people run up against First Amendment constraints?

Inazu: [00:09:02] Yeah. Well, what's particularly challenging about this situation is the training of the officials tasked with enforcement combined with the nature of the offenses they're asked to enforce.

So on the one hand, Bobby's mentioned rightly that some of the people being deployed here just don't have the training to do certain things and enforce certain crimes, investigate certain crimes to do kinds of crowd control that are already complicated enough by those people who are trained in those situations.

But the other complication here is a lot of the potential criminal offenses we're talking about are what are known as inchoate offenses, those offenses that have not yet been completed. So you can think of something like a conspiracy or like an unlawful assembly that is headed toward possibly a riot, a riot would be the point at which there is actually well violent lawmaking underway.

In which case everyone's clear that that's an offense that can be stopped. But when you look at an inchoate offense, the offense that might be underway. You have to have law enforcement officials making decisions around whether someone has based on the circumstantial evidence, showing enough intent to be pursuing what might be a violent offense or is about to, or is imminently about to break the law.

And those are the kinds of judgment calls that really work best when you have experience in those situations, it's very hard to do a plug and play with an outside set of actors, particularly when you might be based on local customs or understandings of reasonableness that go into these decisions. So I think that that inchoate or incomplete nature of these offenses, plus the nature of the officials charged with protecting and enforcing them, make this a very complicated situation.

Rosen: [00:10:42] Well, Bobby let's delve into those complexities. Bobby, there's been at least one lawsuit filed by the Attorney General of Oregon. It's called Rosenblum v. John Doe and it alleges that federal officials are violating First and Fourth amendment rights. Tell us more about that lawsuits and the nature of the claims.

Chesney: [00:11:00] All right. So as I described earlier there is this law enforcement authority that explains why those agents are onsite to begin with. What I think has really set the situation into a market complex category, legally and practically, and maybe politically as well is the tactics that they're using.

And I think most people at this point if seen, or at least heard about episode an episode in which in an unmarked vehicle or at least a vehicle that wasn't clearly marked was used to, bring agents to an individual who was away from the courthouse, moving away from it. And they seized, bundled that person into the vehicle and then took that person into custody, later that person is released.

But this has set off this debate about whether or not these agents as John pointed out earlier. Are they really, properly trained in how probable cause works here under the Constitution? You must have probable cause to arrest somebody and the factual uncertainty as to why we should pause to acknowledge factual uncertainty as to exactly what was in the minds of the agents in any one particular instance.

The story from DHS is that in the episode people have been talking about with the van. The claim is that that individual was either involved in, or was in proximity to people in the crowd, protesters, shining damaging lasers into the eyes of officers, which is a reoccurring issue that's arisen in these protests scenarios.

So, the so-called blinding lasers. This person, if the claim is that the government had probable cause evidentiary wise to believe that he was the one doing this or was involved in helping someone else to do it, then they certainly might have a case for the constitutionality of that arrest, but there's substantial debate about whether or not that was actually the standard the officers themselves understood they had to be following. And indeed, whether they actually did have reason to believe this particular person was the one involved in the incident. Or if instead as one description had it.

He was just said to be someone near in the crowd to where this was happening and it might not rise to the level of probable cause. Now more generally we have the problem of not having a lot of transparency here with these unorthodox sources of law enforcement going on in Portland as to who exactly is being taken into custody.

What is becoming of them? Are people simply being bundled off the street where there should be a Fourth Amendment limitation on the government's power to do that. And then being released a few hours later, after some questioning with the issue, never coming to public light. These are, these are risks, always with law enforcement, but with state, local law enforcement with FBI, DEA with what we think of as more conventional forms of law enforcement, as John said earlier, We have training and oversight and internal controls and judicial processes galore.

And it's just not clear with this unorthodox situation that any such safeguards or enough such safeguards are in play.

Rosen: [00:14:02] John, let's stay on the Fourth Amendment question for a moment before turning to the First Amendment issues. As Bobby says, there are allegations that there were several arrests of protesters seized without probable cause there are barriers to recovering against federal officers for violations of the Fourth Amendment, including the fact that compensatory damages are limited as are punitive damages. And they're also questions of qualified immunity. So tell us more about the nature of these Fourth Amendment suits and whether or not they're likely to succeed.

Inazu: [00:14:33] Yeah, I think the big punchline there is they face an uphill battle, precisely because of the qualified immunity doctrine that you mentioned, which severely limits the threshold under which a suit will be successful against law enforcement officials. And in this case, even somewhat egregious violations will be unlikely to lead to civil damages because of the protections that are built into the system.

This is this and that the Supreme Court has recently looked at again and again, many people are hoping they'll take it up soon because it's a doctrine that many scholars think is impeding meaningful reform and oversight, and precisely these kinds of circumstances. I think in this case in particular, another reason for concern might be the sheer number of people involved in these demonstrations proximate to one another. So when you think of, you know, maybe a different kind of potential Fourth Amendment violation, it could be a discreet instance where you have one suspect or a group of suspects clearly cordoned off who are engaging with law enforcement.

In this case, you've got dozens and hundreds of people, some of them completely law abiding and peaceful, and some of them lawbreaking and, and it's the burden is, is on law enforcement to meet the probable cause and to make sure that they're not being overbroad in their enforcement of these kinds of law against, protected civil liberties.

It's very hard to do that when you increase the number of people in close proximity to one another.

Rosen: [00:16:01] Bobby, the Portland officials are also claiming the federal officials are exceeding their authority by engaging in law enforcement on the streets of Portland, rather than focusing on the protection of federal buildings.

Describe the legal nature of that claim and whether it's likely to succeed.

Chesney: [00:16:19] Right. So if we're talking about DHS personnel who were there, predicated on the authority of the Federal Protective Service to, be present, to protect federal buildings and property. that doesn't mean that there's no possible legal role for them to effectuate an arrest or to otherwise be involved in law enforcement when they're not literally standing on the federal property y, it makes sense that if the arrest otherwise it's proper, that the ability of the potential arrestee to step away outside that property or the passage of one minute of time or some larger distance and period of time, shouldn't logically just extinguish that authority.

On the other hand, and it doesn't mean there's no limits either in the idea that a DHS personnel who's present in that capacity might simply roam downtown looking for violations of federal law enforcement. That seems detached from the necessary basis for what they're doing. And so we're presented with a question of fact that I don't, I don't claim to be in a position to resolve myself, but there is suspicion out there that's been articulated that, that DHS personnel are exceeding that property protective mandate interacting more broadly in a general law enforcement capacity. And if that were to prove to be true, and that would show they exceeded their authority, it would be deeply problematic.

The, to be clear, DHS is saying that is not what's happening. They're saying that where their personnel have acted outside the courthouse area. It's only because they were in pursuit because they were unable to safely make an arrest on the grounds of the protest itself. Again, I don't claim to know which is the truth of the matter.

Maybe it's one way, some of the time, another way at different times.

Rosen: [00:17:58] John, well now let's turn to the First Amendment claims you've described and written extensively about the complexities of identifying the precise point at which protests can turn into imminent threats. But in Portland, in particular, what is the state AG claiming about violation of First Amendment rights and are those claims likely to succeed?

Inazu: [00:18:16] Well, and, and many of these suits, we're seeing charges of violations of both the speech and assembly rights. And I think it's important to distinguish between the two courts recently have not focused much on the assembly claims. And in fact, most protest situations have been resolved under a free speech doctrine known as the public forum doctrine and time, place, and manner restrictions.

There is a separate, independent, constitutional right, the right of assembly. That raises a different set of issues. Somewhat ironically, the assembly claim was first incorporated against the States and a case out of Portland, Oregon, that led to the Supreme Court decision De Jonge v. Oregon in 1937. So right in Portland, it was a claim brought against the Portland Police Department.

We have the roots of the importance of the right of assembly and just these circumstances. But in both, whether you're talking about a potential violation of speech or assembly, the standard in large part goes back to the famous Brandenburg Case from the 1960s. And whether there is an imminent incitement to law breaking that occurs.

And I think what a lot of people fail to see in Brandenburg and some up some of the antecedent cases like Whitney v. California, those cases, all involved, both speech and assemblies. They were both verbal expressions and restrictions against those expressions. And there were physical groups of people gathered.

That provided a unique and distinct threat in some instances and reason for protection of civil liberties. So in these first amendment cases, I think it's really important for courts and policymakers to pay attention to both aspects what's being said. And what's being restricted from being said. And what is being displayed by a group of people gathering physically.

Or being restricted from doing so. And one of the problems we have when, when courts sort of jump over to the assembly claim and focus only on speech is we miss some of the non-speech dimensions that flow out of assemblies, the ways in which groups of people. Symbolize or express all kinds of nonverbal or sometimes even non-cognitive dimensions by the way that they gather what they wear or in this case, what they don't wear sometimes, how they, how they sing or how they're silent.

All of these things are important to the full picture of what a protest might be. And they're often ignored in speech contexts.

Rosen: [00:20:36] Thank you for calling our attention to the De Jonge v. Oregon case from 1937, where Chief Justice Hughes explained why freedom of assembly is so important. We the People listeners check it out and read Hughes' powerful words, freedom of assembly cannot be denied without violating those fundamental principles of Liberty and Justice, which lie at the base of all civil and political institutions.

Bobby, your thoughts on the likelihood that the first amendment claims in Oregon will succeed?

Chesney: [00:21:07] Well, I think that there's a little more good prospect for success in objecting to first, possible excessive force in clearing protesters, which is a little bit distinct from arguing directly about assembling and speech rights.

So for example, there's, there's been much attention paid to an incidence in which so-called. A so-called non-lethal munition was used in a headshot that gravely injured, a protestor who to my understanding was basically just standing there. That strikes me as more of an excessive force fact pattern though it obviously is integral to the chilling of people's willingness to exercise their assembly rights as well. Those two are interconnected. So maybe I'll just hedge a bit and say that the force pathway to interfering with assembly rights is it seems to me something that may turn out to be significant here. So far, if we talk about setting force aside in simple, please look at situations where the protesters are being kept out of certain areas. I don't think we have something in Portland yet quite analogous to what we had in Lafayette Square Park in Washington, previously where you had protesters that were in one place, a symbolically important location, and then they're forcibly cleared out of that particular area in a way that is.

That is not plausibly justifiable by claims that they had had become a riot or engaging in property destruction. Although that claim it has been made, I recognize about Lafayette Square Park, but I think that there's a more people who would take the, take the view that it was more peaceful there, where we have had.

Clearing of the protesters, which we certainly have had in Portland. It is my understanding that this has been occurring at the stage in the, in the middle of the night, when there has been, when fires have been led, where there has been a circumstance where it's no longer simply a peaceful protest. And again, haven't been there firsthand to see myself, so I could be wrong about the facts, but I, I, I think because of that, that were not necessarily gonna see a direct challenge succeed on assembly grounds based on what's happened so far, it's more about the behavior of the particular instances in which someone's either been shot with a non-lethal munition in a way that seems excessive or where somebody has been outright arrested without probable cause.

Rosen: [00:23:27] John, your thoughts about the comparison between the Lafayette Square and Portland situations, and then given your deep studies of the right of assembly is what's going on in Portland unusual from a First Amendment point of view or not?

Inazu: [00:23:44] Well, yeah, to connect both of those questions to something that Bobby just said, the tie between the Fourth Amendment and the First Amendment here is important because, and Bobby mentioned this a few minutes ago, if even pushing against the Fourth Amendment violations, law enforcement can actually, or symbolically chill people from being in an area for a while, then they sometimes have accomplished what they want to do and, and cutting the symbolic effort or momentum out of a protest activity. So this is one of the reasons why the First Amendment is so important in conjunction with the Fourth Amendment. Sometimes an illegal clearing or an excessive force clearing will do the job that law enforcement actually wants done, which is to end the symbolic moment and you mentioned Lafayette Square a moment ago. One of the important things to remember here, probably most, if not all, protests is a symbolic dimension of all of the actors involved, the protests they're taking symbolic actions. Law enforcement is taking symbolic actions. Who is enforcing the law is itself symbolic.

The fact that there are federal agents and not local agents is speaking volumes to lots of people in Lafayette Square, where you had military actors, nearby. When you have the Chairman of the Joint Chiefs of Staff walking down the street, all of those are not technically legal issues, but they're very closely related symbolic issues that go into the overall context of what's happening.

And in Portland, the more that you've had federal law enforcement involved. The more that you've had these, as Bobby mentioned, excessive force uses of clearing. The more that the overall context gets ratcheted up and the more that the symbolism becomes powerful. And so as we, as we negotiate and think about the legal dimensions, I think it's also important to keep the symbolic and political dimensions close at hand as well.

Rosen: [00:25:33] Bobby, we've right into the First and Fourth Amendment issues, which of course turned out to be complicated, but pulling back, how unusual is it for the federal government to deploy this mix of federal agencies? Some originally tasked with immigration enforcement and others with the Marshall Service, to engage in protecting federal buildings. And are there any historical precedents for this?

Chesney: [00:25:58] If we narrow the focus to asking about the role of federal personnel in a law enforcement capacity, protecting federal buildings. It's not out of the ordinary, what is out of the ordinary is very much out of the ordinary is the surging of DHS personnel from Customs and Border Patrol from Immigrations and Customs Enforcement to supplement this role. You'll notice that the controversy in Portland is not about the actions of the Justice Department. This isn't a surgeon of FBI, ATF, or DEA law enforcement agents to assist the U S Marshall Service in protecting the courthouse.

It's the Department of Homeland Security taking personnel off mission. Relating to customs border, et cetera, and sending them in to support the Federal Protective Service, which does have a relevant mission, but it's, it's quite striking to have these DHS personnel engaging in arrest. And we've already talked about on this show, the possibility that the lack of familiarity with and training of these agents with these sort of run of the mill, highly sensitive, encounters with fellow American citizens, who most of whom are exercising their constitutional rights, even if, even while some of them are maybe committing crimes, that makes this really unusual.

There's there is no other example of DHS taking the lead and highly visible role in this way. And it's, it's a stark point of contrast. There was a, a very, laudable statement at one point by I believe the special agent in charge of the FBI office in Portland talking about. The propriety of working by, with, and through local law enforcement and being cooperative.

And, you know, that's no accident. I think the, the federal law enforcement, primary entities from justice are keeping their distance from this. And you contrast this with things going on, such as the, much talked about Operation Legend in which over the past month, the Justice Department has been announcing how it's sending personnel to supplement federal, local, and state law enforcement partnerships against a serious violent crime in certain cities. And it's just, it's not the same problem because you don't have the same concern about whether those are at least relatively speaking. We don't have to have the same concerns about whether those federal agents, understand how to interact on a day to day basis with fellow citizens.

Rosen: [00:28:57] John. I hear Bobby say that what's unusual about Portland is the invocation of a section of the U S code, which allows the Department of Homeland Security to enforce offenses that occur on federal property, but to have those offences be enforced by Customs and Border Protection agents who don't have a specialty in this kind of law enforcement, do you agree? And, what are the particular legal and other dangers of deploying Customs and Border Protection agents in this way?

Inazu: [00:29:26] Jeff, you know, a broader point I think, is that just a reminder that most criminal law is not federal criminal law. Most criminal laws enforced at the state and local level, and there are good reasons for that.

And there are long standing debates about whether there should be more or less federal criminal law, but as a factual matter, there is, there is a small amount of federal criminal law and jurisdiction contrasted with state and local criminal law, and many of them kinds of offenses for which people in these kinds of situations might be charged, come down to quite local ordinances around things like public disturbance or that sort of thing, which are themselves based on judgements of reasonableness.

So, but we're right back to the point of wanting your law enforcement officials familiar with what the local laws are. What the elements of those laws are and how they're enforced. And sometimes how they're enforced is itself a matter of local context. So people will know, how and when to give in a protest situation.

If they're familiar with the local environment in a way that you might not have when you import people from, from other contexts that reminds me, I grew up on military bases and a military bases you had the military police or the security forces who were charged with federal law protecting the bases, even down to some relatively minor offenses, it says, but there was usually a good working relationship with the local civilian law enforcement, when that jurisdiction ended, because those were different kinds of laws enforced against and for the benefit of different communities.

And when you had jurisdictional challenges over who was enforcing which laws that's when things got really messy. And so here, there are clearly federal criminal laws and federal criminal property. That should be enforced and protected or can be enforced and protected by federal officials, but the band is relatively narrow.

And when you start to broaden that and you get into all kinds of trouble about competing jurisdictions and competencies.

Rosen: [00:31:17] Bobby, you mentioned the Justice Department initiatives to deploy DOJ troops to combat violent crime in the States in William Barr's appearance before Congress, Congressman Nadler questioned him about Operation Legend, which began as an effort to combat violent crime in Kansas City and was expanded into Operation Relentless Pursuit where the department is diverting $7 million in grants to seven US cities.

Are there any legal issues raised by operation legend and operation relentless pursuit?

Chesney: [00:31:53] So I don't think so. I think it would be best for those who are concerned about what's happening in Portland to not jump to conclusions that Operation Legend. it is in any way, a reflection to the same thing.

So in brief, there is a, a long history of federal cooperation with state and local law enforcement to surge the sometimes unique and expansive federal financial resources, investigative resources, and sometimes technical resources that could dramatically, improve state and local efforts to deal with a particularly organized violent crime.

So. Narcotics organizations and violence associated with that, or other types of organized violence. Operation Relentless Pursuit was an example of this from pre-pandemic that involved a surge of funding and a surge of personnel to some heavily impacted cities, Kansas city, in case in point. And then as the Attorney General explained in his testimony, yesterday, the pandemic essentially brought all of this sort of to a screeching halt. And in early July with much fanfare, the Justice Department announced that it was launching Operation Legend named for a four-year-old victim of violent crime and it, it is a reboot of Relentless Pursuit starting in Kansas city. It's now expanded to, I think, a total of five other cities, Chicago Albuquerque, Detroit, Cleveland, and Milwaukee. As of today, in, in both, in each case, we're talking about the assignment of, you know, roughly a couple of dozen officers from Justice Department, law enforcement agencies, Drug Enforcement, Alcohol, Tobacco, Firearms, FBI, in some cases, US Marshall Service plus allocations of funding.

But, the critical point is all of this has been done in cooperation by, within, through the mechanisms of joint operations with state and local law enforcement. They aren't about protests at all. There are about serious violent crime. And they're not about bringing in a federal presence, in the face of indirectly in opposition to something that's state and local law enforcement are saying they don't want.

So I think it, it actually helps to highlight what is unusual about the Portland scenario, which is all about protecting in federal property, which is appropriate and lawful up to a point. But the question becomes what, when your tactics for doing that involve personnel who might not be properly trained in what their arrest authority parameters are or how to execute the use of non-lethal force in a way that's compatible with people's rights.

That's where all the real issues are.

Rosen: [00:34:28] John, anything to add about legal issues raised by Operation Legend. And if not now that we're honing in on the particular legal difficulties with the Portland situation, please give us a historical context of whether or not in the history of the federal government's response to protest. This is unusual. And in what ways it's unusual.

Inazu: [00:34:50] Well, you know, Jeff, what it makes me think of a little bit. And as Bobby was speaking, I was thinking of how there, there are both proper and improper, we might say good and bad uses of federal forces and assets to compliment local and state resources. And as a historical matter, what's interesting.

What's interesting is that we have in the first place, in the, in the early 19th century, Unlawful assembly and riot provisions emerging precisely because local law enforcement, which at the time, might've just been, the sheriff could not by themselves sustain and suppress violent outbreaks. And so some in some jurisdictions you'd have riot provisions that would, would forcibly, deputize other men in the community to come out and help the sheriff quell the riot.

And you could actually be arrested if you didn't help, suppress and over time with, with the expansion of the federal government and other technological advances, we saw increasingly the ability of law enforcement, one to be more organized itself at the local level, but also to call upon other officials if and when needed.

And so there are good times and current analogs when local departments can't by themselves sufficiently tackle, as Bobby said, something like organized crime or in some cases, massive outbreaks of local violence and there are good and proper ways to up local forces. There are also bad ways of doing it.

And one of the things I think of in the context of the current protests, disputes is back to Ferguson and how there was a lot of attention given to the supplementing of local law enforcement with DOD and other assets, armored personnel carriers, and larger weapons, and the kinds of military style assets that local law enforcement is not really trained or equipped to use.

And so you have these pictures, you know, out of Ferguson that we probably all remember where you had a very militarized looking police around in many cases, peaceful protestors. And so I think there's a dance here. There are, there are good and bad ways to think about how federal and local law enforcement should work together.

And it takes a, it takes an amount of discretion, but also looking at history to figure out what's, what's helpful and what's not helpful in that relationship.

Rosen: [00:37:06] Bobby, when the Portland protest began many commentators, including you were asked to talk about whether the President could invoke the Insurrection Act, which authorizes the president to call out the military to enforce federal law.

When local authorities are unable or unwilling to do so, he didn't invoke the Insurrection Act in Portland. He didn't invoke it in Lafayette Square. Possible nowadays for presidents to make an end run around the Insurrection Act by just applying other authorities. And what, if anything, is the relevance of the debate over the Insurrection Act to the Portland case?

Chesney: [00:37:39] I think the right way to think about the Insurrection Act is to begin with something that was a woven into what John was just talking about. That the idea of the, the ability to have law enforcement authorities to draw on others, to supplement their enforcement power when they're over-matched. The, the phrase posse comitatus is an old phrase referencing the strength of the community or the force of the community. And it's, it's the, I'm going to organize a posse idea that John just described. So what I'm getting at here of course is the famous federal Posse Comitatus Act, which after Reconstruction, reflecting, especially in the deep South, this, this hostility to the ability of law enforcement authorities to draw on federal military power, to enforce laws against the KKK and others. Posse Comitatus Act has this sorted origin of trying to prevent federal military forces from being able to be used in that capacity. So it has that sort of ugly beginning. It has over time become much more closely associated in most people's minds though, with just this general idea that the military should not have a law enforcement role in our society.

Which of course actually sounds like a libertarian type idea. And indeed it is. If you divorce from, from the origins as, as we might, as many people do. The Posse Comitatus Act makes it a crime to, direct the, it says the Army and the Air Force, but we're gonna, we're going to kind of skirt over some nuances here by simply saying that it's interpreted to apply or construed by DOD to apply generally to the Armed Forces.

It's, it's a crime to ask the armed forces to engage in law enforcement, to execute the laws, unless there's a statute. That opens the door towards doing just that. And that's where the Insurrection Act comes in in one way or another. Since the early days of the Republic, we've had versions of the Insurrection Act authorizing the President. And now the language for the triggers varied over time, but it boils down to situations in which, it's not possible execute the laws in the normal ways. When there is a public proclamation of such, then the President is authorized to use, either the, the regular military or if he cares to federalize and use the state national guards are what we used to call the militias to do it.

He can have them execute the laws. This has always been depicted. And I think quite rightly so as sort of the most dramatic sort of the nuclear option for execution of the laws. I think as a general proposition, we should all be happier when it is possible for the federal government to ensure execution of a law using federal law enforcement authorities using civilian instruments, rather than turning to the military, to do the actual arresting and detaining.

Even if, as John quite properly noted a moment ago, the military also can provide support and defense support to civil authorities is sort of a different topic than what I'm talking about. So, President Trump has not gone there. He hasn't, I don't think as suggesting it's going to go there in Portland, he did suggest he wasn't going to go there as to Washington DC.

And there was a whirlwind of controversy right around the time of the Lafayette Square incident. About the possibility that federal military forces in nationalized, federalized National Guard units would be brought to bear in this way. The fact that we haven't gone there for the current situation.

That's good. We don't want to go there unless we absolutely can't avoid it. That doesn't mean there's no issue though. At the end of the day, when we wrestle with this question of. Who should be allowed to engage in the enforcement of federal law and the protection of federal property? What's at stake is do we confined, somebody does need to do that mission.

That's an important mission to perform are we confined in it, into the hands of the people best trained and most trustworthy to do it in a way that's reconcilable with being in a free society where we do have unruly protests. And that's something we're proud of. And as part of our heritage and our identity, the closer you are to a traditional law enforcement agency, the more comfortable we can be with that, the further we get from that on the spectrum that runs from the FBI over to.

Well, the 101st Airborne, the more uncomfortable we need to be getting. And what we've discovered to the surprise of many is that there's DHS with a lot of personnel that are on that spectrum. And it turns out they're very available to be used. And here I must emphasize that there is no Senate confirmed leadership at DHS.

And there hasn't been for an extraordinarily long period. In fact, I believe the Secretary of DHS position has been open without a nomination longer than any other cabinet level position in American history. And this is a circumvention of the separation of powers.

Rosen: [00:42:21] John, Bobby just made the strong claim that to have DHS forces dispatched by a non-Senate confirmed official means that, officers who are not well trained to deal with protests are those who are on the ground. Do you agree, and at a time when the nation is having a roiling debate about the role of the police, do you agree or disagree that, these federal officials are not well equipped to strike the right line between free assembly and public order?

Inazu: [00:42:56] Yeah, they, you know, as we said earlier, they very well may not be well equipped or well-trained. To do so, but as Bobby was speaking, I was also struck by the symbol behind all of these decisions as well, the symbolism, but also, and here's where sometimes we all hate bureaucracy, but sometimes bureaucracy really matters the, the oversight and the functioning around these decisions.

And so part of, I think that the DHS controversy has been, what, what, what is the physical appearance and the uniforms of some of these agents. And does that look. More or less. I mean, it's very clear when you see someone with a big FBI on their chest, what that, what that symbolizes and conveys. It's also very clear when you see this special forces of the 101st Airborne what that conveys.

And if you get into a gray area where people aren't sure that can itself become problematic just on the symbolism. But, the other thing I was thinking about, I spent a few years as a military lawyer at the Pentagon. For the Department of the Air Force. And we routinely got them these kinds of requests and over these exact questions, whether, and when military assets can be used for civilian law enforcement support.

And they were always very carefully vetted and they were vetted for questions, like, is this the mission of the Air Force to fly this plane over this, this, this part of it? Or is there a better agency to do it? And then also what would be the effect? How would people view the role of the U S military in this context, and from at least as an outsider, now it sure looks like a lot of those questions are not being very carefully vetted by some of the people making decisions in Washington and over time that has, a lot of, a lot of power and influence over the perceptions of the public of both the military of other law enforcement communities and the role of the federal government and all of these, these activities.

Rosen: [00:44:38] You both agree that these federal officials are not the ones best equipped to enforce this law on the ground. What are possible reforms? What could Congress or the courts do to restrain the ability of the Congress to deploy these federal forces under these circumstances?

Chesney: [00:44:56] One lever that Congress has of course, is appropriations.

It may not be obvious what the legislative fix would be to make sure that somehow we can fine tune it, such that the Federal Protective Service and those seconded to its ranks can perform their very important mission of protecting these federal properties while at the same time, preventing use of excessive force or inappropriate arrested, et cetera.

But maybe that's to think of it in terms of how do we fine tune the legislation. Maybe the appropriations power can be used and leveraged and needs to be used and leveraged in order to get clarity and answers out of the acting leadership of Homeland Security and the acting leadership of the relevant components regarding exactly what orders were given.

What sort of training involved, what exactly who was taken into custody? How many times, where were they taken? Were they given Miranda warnings? Were they given right to counsel? Were they ever arraigned? What does become of these individuals? What sort of guidance and so on and so forth? And in short, I think that what we need right now is transparency and information about the facts on the ground, which by the way, may in many instances put DHS in a much better than it currently is in because of its lack of transparency.

It could be, they actually have a more defensible story to tell and I suspect they do in some of these instances. I'm not so sure about all of them though.

Rosen: [00:46:22] John, what reforms would you propose if any, to restrict the ability of the president to deploy federal forces under these circumstances?

Inazu: [00:46:31] You know, I think a more general point is just how much of law and policy making really happens away from the public eye and through mechanisms that most of us don't pay a lot of attention to so we're all reacting and talking quite a bit about the external consequences of what's being seen, but a lot of the oversight authority prudence and decision making happens by people in the federal government, largely in the Executive Branch.

Who, who rely on a host of relationships and authorities and connections to get things done. So I think, for example, the senior executive service, the career civil servants that work with the politically appointed leadership of the executive branch agencies and how, you know, in many cases they're over, over bureaucratized and in some cases there's fraud and abuse in those positions. But by and large, those positions are also really important to sustain agency custom and norms over time and through administrations. And it's important to make sure that the behind the scenes of the agencies and a lot of us don't pay attention to that. There's, there's a, a healthy oversight and a healthy set of relationships happen. And I think the Bobby's point, we just don't know a lot of them what's going on at this, at this point in time. And it would be great for the public. It'd be great for the Congress to get a better sense of who's calling shots and how the authority and how the different positions are working together.

Rosen: [00:47:54] Well, it is time for closing arguments in this very rich and illuminating discussion. Bobby, the first one to you in just a few sentences, does the deployment of federal troops in Portland violate the Constitution or historical norms or not?

Chesney: [00:48:09] So as long as what we're talking about here are DHS personnel who have been formally, dispatched to be seconded to the Federal Protective Service for the protection of federal buildings and property.

That's, that's perfectly compatible with the statutory authority of DHS. My concerns have to do with the tactical execution of those responsibilities in particular, the possible use of excessive force against nonviolent protestors and the possible practice of effectuating arrest, what really are arrests or whatever they might call them without probable cause.

But as you said earlier, we need to know more before we, we, we can't assume that it's as bad as it might be, but we can't assume that it's all okay either. And we need some transparency as to what's actually happening on the ground there.

Rosen: [00:48:57] John last word is to you. Does the deployment of federal forces in Portland violate the Constitution or historic norms or not?

Inazu: [00:49:04] Well, I think I agree with, with Bobby here. So it's not much of a closing argument in that sense of, you know, but, but I, I would just add, to hit a refrain we've already mentioned. How we collectively the country, the federal government state, and local officials and protestors, how we do the dance of both recognizing First Amendment rights and giving breathing space for protests that are sometimes going to be angry and sometimes going to be impatient.

But can be reasonably restricted when they turn violent. So how we respect rights on the one hand and how we respect the enforcement of order and law on the other hand is a complicated dance and people on all ends need to do that responsibly. There are ways to make it work together. And then there are ways in which on one side or the other, we have massive violations occurring.

And the stakes here seem to me much higher than just Portland. Every one of us right now. Can think of issues or examples, where there are protests happening about issues that we care quite a bit about, or groups that we care about are being, somewhat restricted or suppressed in their ability to, to protest or demonstrate.

And so if we don't work hard to figure this out as a country, this is going to be a much bigger issue than Portland. And so the work is on all of us to make that happen.

Rosen: [00:50:18] Thank you so much. Bobby Chesney and John Inazu for an illuminating, nuanced, and just great discussion of the Constitution, the law, and the protests in Portland.

Bobby, John. Thank you so much for joining.

Chesney: [00:50:32] Thank you.

Inazu: [00:50:33] Great to be with you. Thanks Jeff. Thanks Bobby

Rosen: [00:50:40] Today's show was engineered by the National Constitution Center's AV team and produced by Jackie McDermott. Research was provided by Maggie Gillespie and Lana Ulrich. Please rate, review, and subscribe to We the People on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who is hungry.

And eager and ready, willing, and able to enjoy a weekly dose of constitutional debate. And always remember friends with the National Constitution Center is a private nonprofit. We rely on the generosity of people from across the country who were inspired by our nonpartisan mission of constitutional education and debate.

You can support the mission by becoming a [email protected]/membership, or give a donation of any amount to support our work, including this podcast at constitutioncenter.org/donate on behalf of the National Constitution Center. I'm Jeffery Rosen.

Loading...

Explore Further

Podcast
Can the Government Pressure Private Companies to Stifle Speech?

The Supreme Court examines the limits of jawboning

Town Hall Video
Lincoln’s Lessons: Then and Now

Acclaimed Lincoln historians Sidney Blumenthal and Harold Holzer assess Lincoln’s life and legacy to unveil remarkable…

Blog Post
Once again, Supreme Court dives into abortion fray

The only people who may have actually believed the Supreme Court was getting out of the abortion issue by eliminating the…

Educational Video
AP Court Case Review Featuring Caroline Fredrickson (All Levels)

In this fast-paced and fun session, Caroline Fredrickson, one of the legal scholars behind the National Constitution Center’s…

More from the National Constitution Center
Constitution 101

Explore our new 15-unit core curriculum with educational videos, primary texts, and more.

Media Library

Search and browse videos, podcasts, and blog posts on constitutional topics.

Founders’ Library

Discover primary texts and historical documents that span American history and have shaped the American constitutional tradition.

News & Debate