The question of whether these arrests are appropriate has a clear answer—at least in a nation that purports to live under the rule of law.
The Trump administration has faced outrage since reports first surfaced of federal agents in unmarked vehicles picking up and detaining protesters in Portland, Oregon. Rather than backing down, though, President Trump appears to have decided to go all in: In a July 20 interview, he threatened to send “more federal law enforcement” to New York, Chicago, Philadelphia, Detroit, Baltimore, and Oakland—cities run by “liberal Democrats,” he asserted. The question of whether or not the administration has the legal authority to take such action will be fought out in legal challenges. But the question of whether or not these arrests are appropriate has a clear answer—at least in a nation that purports to live under the rule of law.
Asked on July 17 by an NPR reporter whether the reporting was true, Ken Cuccinelli, a senior Department of Homeland Security official, didn’t seem troubled by the department’s activities. Yes, he said, at least one person had been arrested in this fashion in Portland—though he wouldn’t say whether others had been as well, and if so how many. Cuccinelli added that this was how the Trump administration planned to respond to demonstrations at federal buildings and monuments elsewhere, too. “This is a posture we intend to continue not just in Portland, but in any of the facilities that we’re responsible for around the country,” he declared. And days later, he doubled down on CNN, insisting that the government had “intelligence about planned attacks on federal facilities” in Portland: “If we get the same kind of intelligence in other places … we would respond the same way.”
Reports of unidentified federal law-enforcement officials patrolling areas of Portland—and conducting arrests by scooping suspects up into vans—have generated a lot of anxiety. The Atlantic writer Anne Applebaum argued that the government’s actions amount to “performative authoritarianism.” Mary McCord, a lawyer who previously oversaw national-security issues at the Justice Department, warned The New York Times that manhandling Portland residents in this way “sends the message that these people are terrorists and need to be treated like terrorists.” And Oregon’s congressional delegation wrote a letter to the U.S. attorney general stating that the Portland arrests “are more reflective of tactics of a government led by a dictator, not from the government of our constitutional democratic republic.” Portland Mayor Ted Wheeler and Ron Wyden, the senior senator from Oregon, both decried the arrests as unconstitutional.
There will be time to sort out the legalities of the federal government’s actions. The attorney general of Oregon has filed suit against various federal agencies and officers involved in one arrest, arguing, “Ordinarily, a person … who is confronted by anonymous men in military-type fatigues and ordered into an unmarked van can reasonably assume that he is being kidnapped and is the victim of a crime.” The American Civil Liberties Union has also sued the Department of Homeland Security and the U.S. Marshals Service. The chairs of three House committees have requested an internal DHS investigation of the matter. Between these varied proceedings, the Trump administration will have to answer legal questions like whether it’s really okay for unidentified federal officers and agents to patrol streets, and whether an agency whose mission is to patrol the border is properly used without training for crowd control. The administration will also have to justify the propriety of the individual arrests both in any prosecutions of those detained and in any civil suits filed.
But let’s leave the legalities aside for now. Because whether the Trump administration has the technical legal authority to deploy this show of force in this particular matter does not answer the question of whether it should do so. The use of federal officers in this manner is corrosive of democratic culture, it makes for bad and ineffective law enforcement, and it’s likely physically dangerous both for the law-enforcement officers and for the protesters in question.
According to The New York Times, Homeland Security officers were deployed under the department’s authority to protect federal property—including, in this case, the Portland federal courthouse. The deployment of armed forces comes along with increased domestic intelligence operations. Yesterday, Lawfare reported that the Department of Homeland Security’s little-known intelligence arm had authorized intelligence collection on people connected to threats to monuments and statues, having designated the protection of such monuments a homeland-security mission following President Trump’s monument-protection executive order last month.
The existence of the department’s authority to protect federal property is uncontroversial. The federal government has the power to defend federal buildings and facilities from civil unrest, and a variety of federal laws protect federal property from attack and vandalism and federal officials from interference with their discharge of the government’s business.
While this authority certainly extends to the power to investigate federal crimes and arrest those suspected of them, it is not some general authority to patrol the downtowns of major cities and pick up and detain protesters merely because a federal building may be in the neighborhood.
Likewise, federal law-enforcement officers should conceal their identities only under highly specific circumstances—none of which involves crowd control at a protest or policing a public area. Officers might reasonably go undercover in an effort to infiltrate a criminal organization, for example. Federal air marshals are generally unidentified so they can blend in with passengers on commercial flights—preventing would-be hijackers from knowing which flights are patrolled. But it should be quite unthinkable for armed officers exercising coercive arrest powers in the streets of an American city to not identify themselves by name and affiliation.
A similar situation to the one in Portland arose in Washington, D.C., last month, when the president deployed National Guard units and a smorgasbord of federal law-enforcement agencies, including officers from the Department of Homeland Security, during protests over the killing of George Floyd. The deployment of anonymized federal muscle in various locations in the district angered many people, and rightly so. These recent actions in Portland are more jarring still.
For better or worse, residents of D.C. are used to a significant federal law-enforcement presence in their daily lives—albeit one that’s quite open and overt. A significant area of the city is patrolled by the United States Capitol Police, for example; uniformed Secret Service officers protect embassies; the United States Park Police has jurisdiction over national parkland, which is abundant in the city. And one or more unmarked dark SUVs accompanying some official-looking car is a pretty normal affair. But even a certain baseline comfort with a heavy federal presence didn’t prepare D.C. for an invasion of little green men. How much more shocking it must be for people in Portland, who lack that general familiarity, to suddenly have unidentified officers snatching people off the street and hustling them into unmarked vehicles.
There are additional concerns. The tactical divisions of the Homeland Security Department from which the officers in Portland appear to hail—Customs and Border Protection (CBP) and Immigrations and Customs Enforcement (ICE)—are not typically deployed at protests, but charged with enforcing immigration law and guarding the U.S. border. And as an internal department memo obtained by The New York Times shows, the officers sent into Portland’s streets were not trained to handle crowds. “If this type of response is going to be the norm,” the memo cautions, “specialized training and standardized equipment should be deployed to responding agencies.”
All of which brings us to the dangers—for everyone involved—of protecting federal buildings in this particular fashion. Sending out officers untrained for demonstrations risks violence if the agents end up in situations they don’t know how to handle. Recall that some of the protests in the wake of Floyd’s death swung out of control in large part because of ill-considered police actions. This anonymized deployment risks compounding that problem. Because if, as Oregon’s attorney general hypothesizes, a protester ”confronted by anonymous men in military-type fatigues and ordered into an unmarked van” were to “reasonably assume that he is being kidnapped and is the victim of a crime,” he might plausibly resort to violence in self-defense. This may be a particular risk if the person in question happens to be suspicious of police authority in the first place. And the risk may be further heightened by the fact that various militia groups have been known to organize armed groups in defense of supposed law-enforcement interests. Ambiguity about an officer’s identity or power to make an arrest serves the interests of neither law enforcement nor protesters.
So why is the Trump administration sending into American cities officers who aren’t appropriately trained for the mission, are acting on legal authority that will require litigation to defend, and are being deployed to address a problem that the federal government could address by means far less provocative and in a fashion far less likely to escalate disorder?
The answer is unfortunately obvious. Having given up on controlling the pandemic that has now killed more than 140,000 Americans, and faced with dimming reelection prospects, Trump is doing his best to substantiate the tough-guy vision of the presidency that has always appealed to him. During earlier stages of his administration, he played out this fantasy along the southern border of the United States by deploying troops to the American Southwest and warning about “caravans” of travelers illegally entering the country. Now, as officers typically tasked with enforcing the border have been deployed into Portland, Trump’s apocalyptic warnings about the need for a brutal response to any perceived threat have also moved from the edge of the country into American cities.
The message is as simple as it is ugly: The caravan isn’t just coming north through Mexico. It is already here—in the efforts to take down statues, in the protests, in the pockets of disorder in American urban areas and in the gatherings of people exercising their First Amendment rights to object to police misconduct. The caravan, in fact, is the city. And only Trump can protect you from it—whether it is what you see when you look south or what you see when you look downtown.
Fortunately, it doesn’t seem to be working. Last night in Portland, as happened last month in Washington, D.C., peaceful protests only grew in response to the federal show of force. If Trump follows through on his promise to export the federal muscle to other cities, the anonymous agents may be met with more large crowds defying Trump’s efforts at vilification and coercion.
The Trump administration will hire conservative firebrand and former Virginia attorney general Ken Cuccinelli II to coordinate immigration policy at the Department of Homeland Security, three administration officials said Tuesday.
Cuccinelli will work at DHS in a senior role and will report to acting DHS secretary Kevin McAleenan, while also providing regular briefings to President Trump at the White House, according two officials briefed on the appointment.
.. Cuccinelli, who has been hawkish on immigration policy during television appearances that also praise Trump, appears to fulfill the president’s desire to have a forceful personality and a loyalist at the highest levels of DHS. But his arrival risks new instability at the agency, coming six weeks after Trump ousted Secretary Kirstjen Nielsen and replaced her with McAleenan, a long-serving official who was confirmed by the Senate last year as commissioner of U.S. Customs and Border Protection, and who is one of the few administration figures who retains a favorable reputation with lawmakers from both parties.
Mark Krikorian, director of the Center for Immigration Studies, a Washington think tank whose immigration-reduction agenda has had significant influence in the White House, called Cuccinelli “an unusual choice.”
“He doesn’t have any immigration experience, but he does have law enforcement experience,” said Krikorian, who said he was “cautiously optimistic” that the appointment would make a difference. The crucial factor, he predicted, would be access to the White House.
“If he does not answer directly to the president, he’s not likely to be able to get much done,” he said.
.. The White House offered the job to Cuccinelli after it was turned down by Tom Homan, the former acting director of U.S. Immigration and Customs Enforcement, according to two officials. Trump also soured weeks ago on Kris Kobach, the Kansas Republican favored by immigration restrictionist groups, according to one senior administration official.
.. “It is bad news for [McAleenan],” said one senior administration official, speaking on the condition of anonymity to provide candid views. “You have someone at the agency that the White House might have in mind to be the next DHS secretary.”
Another former department official predicted Cuccinelli’s lack of authority at the agency and distance from the White House would leave him in a weak position from the outset.
“Putting an immigration czar at DHS is a total waste,” the person said.
The Department of Homeland Security did not respond to inquiries about Cuccinelli’s role. Cuccinelli, who was at the White House on Monday, could not be reached for comment. His expected hiring was first reported by the New York Times.
If the White House is grooming him as a possible replacement for McAleenan, he would face a difficult path to confirmation.
Cuccinelli is deeply disliked by Senate Majority Leader Mitch McConnell (R-Ky.), who has vowed to block Cuccinelli from any Senate-confirmed post for leading efforts in 2014 backing insurgent candidates that hurt the Senate GOP majority, McConnell advisers said.
Two years ago, Cuccinelli signed a letter drafted by GOP activists calling on McConnell to step down.
When Cuccinelli’s name surfaced last month as a potential Nielsen replacement, McConnell told reporters he’d conveyed his unease to the White House. “I have expressed my, shall I say, lack of enthusiasm for one of them . . . Ken Cuccinelli,” McConnell said.
The Virginia conservative, who has a long record of combative television appearances, is even less popular with Democrats. “This is absurd and outrageous,” Sen. Jeff Merkley (D-Ore.) wrote on Twitter. “He doesn’t deserve a taxpayer-funded salary.”
Others more supportive of the move noted that the DHS secretary’s role is challenging enough when there isn’t a migration crisis — and with hurricane season approaching, McAleenan could benefit from a strong personality fully devoted to the border.
In April, more than 100,000 migrants were taken into custody along the U.S.-Mexico border for the second consecutive month, and the numbers in May are on pace to go even higher. McAleenan warned in late March that U.S. agents and infrastructure at the border had hit a “breaking point,” and since then the situation has worsened, leaving holding cells so overcrowded that DHS officials have been transferring migrants out of South Texas by aircraft simply to make room for ever-growing numbers of new arrivals.
Cuccinelli has been a vocal advocate for Trump’s proposed border wall and other measures popular with hard-liners. He has backed constitutional changes to restrict birthright citizenship, urged lawsuits against employers who hire undocumented immigrants and at one point supported denying immigrant workers — including those in the country lawfully — from collecting unemployment benefits if they are fired for not speaking English on the job.
His appointment to DHS has others in the administration worried there will be too many players fighting to establish control over an immigration agenda, with White House adviser Stephen Miller already chafing officials at DHS.
.. One White House adviser said Cuccinelli would advocate for the White House’s aggressive position at the agency. Miller has argued to Trump that others within DHS are trying to stall him.
McAleenan last week pushed back at an attempt by Miller to have Trump’s pick to lead ICE installed at CBP instead. In a tense White House meeting Thursday, McAleenan said he needed control over DHS to remain in his job, administration officials said.
The animus between Cuccinelli and Senate Republicans stems from his leadership of the Senate Conservatives Fund, which organized anti-incumbent efforts, and from his role at the 2016 Republican convention, when he derided “petty, tyrannical rules” and threw his ID badge on the floor in protest of Trump’s nomination. He was a strong supporter of the presidential bid by Sen. Ted Cruz (R-Tex.), who has since become one of Trump’s most ardent defenders.
Another senior administration official who welcomed the appointment said there was an acute need for someone to be an immigration policy field marshal.
.. “The president’s frustration is not directed at DHS alone,” the official said. “It’s DOJ, DOD, State. So this job will ensure closer coordination at a senior level, and it’s an effort to acknowledge you need someone who can have conversations with department heads about policies and drive them to the same place.”
But the official also acknowledged that Cuccinelli’s appointment risked undercutting McAleenan at a time when the acting secretary has been making inroads with lawmakers, including Democrats who see him as a neutral law enforcement official rather than a White House political operative.
“I don’t see how this appointment makes things better on the Hill,” the official said.
Kirstjen Nielsen is the latest one out of the president’s spiraling cabinet who expressed his cruelty but wouldn’t go as far as he wanted.
There’s no reason to mourn Kirstjen Nielsen’s departure from the Department of Homeland Security. She was an immigration hard-liner working aggressively to carry out President Trump’s restrictionist agenda. She spearheaded efforts to crack down on migrants and asylum seekers. She requested military assistance at the border. She limited the number of people who can legally present for asylum at ports of entry. And she vastly increased the number of immigrants in detention.
She also carried out the president’s “zero tolerance” policy, resulting in the separation of thousands of families at our border with Mexico. Many parents are still searching for their children.
But there were limits to Nielsen’s embrace of Trump’s immigration policies. She pushed back on his demands to break the law to stop migrants from entering the country, according to The Times, and repeatedly reminded the president of “the limitations imposed on her department by federal laws, court settlements and international obligations.”
In almost any other administration, this would be unremarkable. It simply means Nielsen took her job and its legal obligations seriously — what we would expect from any civil servant. But Trump is unusual among modern presidents for his routine elevation of people who lack that basic sense of public ethics. If regular pressure to break the law was part of Nielsen’s decision to leave the administration, then her departure illustrates how any belief in the public good, no matter how slight, is incompatible with working for this president, even if you share his views.
This was evident from previous resignations and firings. Rex Tillerson, Trump’s first secretary of state, seemed to share the president’s skepticism of the department, carrying out an agenda meant to shrink its influence. But when Trump wanted to break the law — which, Tillerson said in an interview after leaving the administration, was “often” — Tillerson would push back, unwilling to completely subordinate himself to the president’s will. “I would have to say to him, ‘Mr. President, I understand what you want to do, but you can’t do it that way. It violates the law.’”
The president’s first attorney general, Jeff Sessions, faced similar pressures after he recused himself from any investigations related to the prospect of Russian interference with the 2016 presidential election. Sessions took that step after The Washington Post revealed his meetings with the Russian ambassador, Sergey Kislyak, during the campaign — the kind of contact he had denied during his confirmation hearing before the Senate Judiciary Committee.
Trump was furious, which grew into rage after the deputy attorney general, Rod Rosenstein, appointed Robert Mueller special counsel. Trump reportedly berated Sessions in the Oval Office — which the attorney general called his “most humiliating experience in decades of public life” — and complained that the recusal was “unfair.”
Trump wanted Sessions to derail the Russia investigation and protect him from scrutiny, essentially making himself above the law. And he spent much of 2018 pressuring the attorney general to do just that, either attacking him in public or cajoling him in private. Sessions, who shared Trump’s politics but not his complete contempt for the rule of law, wouldn’t budge.
The overall pattern is clear. Trump wants to act with impunity, breaking the law if he needs or even just wants to. His appointees, who share his goals but not his methods, resist. He scolds and attacks them until they resign, replacing them with loyalists who may actually bend to his will.
Rex Tillerson was replaced by Mike Pompeo, then serving as director of the C.I.A. Unlike Tillerson, who attempted to contain Trump’s worst instincts, Pompeo has been willing to say or do nearly anything to stay in Trump’s favor. It’s why he would echo the president’s widely criticized flattery of Kim Jong-un and the North Korean government.
Trump says that Kevin McAleenan, until now the commissioner of Customs and Border Protection, will take over for Nielsen as acting secretary of Homeland Security. Like Nielsen, McAleenan backs the president’s harsh border policies. He defended border patrol agents after they used tear gas on hundreds of migrants, including women and children, who tried to enter the United States near Tijuana, Mexico. Some attorneys say it’s unclear if Trump can elevate McAleenan, since the laws regarding succession point to under secretary for management Claire Grady as next-in-line as acting director.