A Judge Said Federal Officers Can’t Arrest Or Use Force Against Journalists In Portland

The new 14-day temporary restraining order, which the Trump administration opposed, represents the first court order placing limits on the federal law enforcement action in Portland.

A federal judge in Portland, Oregon, entered a temporary restraining order on Thursday that blocks federal law enforcement officers from arresting or using physical force against journalists and legal observers as they respond to anti–police brutality protests there.

The Trump administration is facing multiple lawsuits challenging the federal response to the demonstrations in Portland, where protesters have reported that officers without identifying markers have been snatching people off the street. This is the first order that places a court-enforced restriction on the actions of law enforcement officers from the Department of Homeland Security and Department of Justice, which have been accused of making unlawful arrests and engaging in unconstitutional violence against demonstrators, journalists, and legal observers.

The legal team representing the journalists and legal observers, which includes the American Civil Liberties Union, had submitted declarations to the court from individuals who said they were clearly marked as members of the press and complying with orders to move away from the federal courthouse in Portland when they were shot with “less than lethal” munitions, such as rubber and plastic bullets, by federal officers. At a hearing earlier on Thursday, Matthew Borden, a lawyer for the journalists and legal observers, argued that the uses of force against journalists were “acts of intimidation by a tyrant.”

US District Judge Michael Simon’s order prohibits federal agents from arresting or using force against journalists or legal observers unless there is probable cause they’ve committed a crime. The order also states that journalists and legal observers will not be required to leave an area if federal agents issue an order to disperse, and that federal officers can’t seize a journalist’s press pass or equipment unless they’re being lawfully arrested.

The temporary restraining order will be in effect for 14 days as the case moves forward.

Simon wrote that the Justice Department was wrong when it argued that journalists didn’t have a right to stay when federal law enforcement closed otherwise public streets and ordered people to disperse. He wrote that the role of journalists was to observe and report whether law enforcement was, in fact, lawfully closing streets (the judge also noted that closing streets was a function for local police, not federal agents).

“Without journalists and legal observers, there is only the government’s side of the story to explain why a ‘riot’ was declared and the public streets were ‘closed’ and whether law enforcement acted properly in effectuating that order,” the judge wrote.

At Thursday’s hearing, Simon made clear he was inclined to grant the 14-day temporary restraining order, questioning a Justice Department lawyer about why it would be “impossible” for federal agents to comply since he’d previously imposed a nearly identical order on local police in Portland in the same case.

The city of Portland not only hadn’t come back to court to complain the injunction was unworkable, Simon said, but it had joined the legal team for the journalists and legal observers in urging the judge to adopt a similar order for federal officers.

“I do think it’s critically important that journalists and legal observers have an opportunity to see these things,” Simon said at the end of the hearing, referring to videos of federal agents using force against protesters.

Justice Department lawyer Andrew Warden argued that such an order would be unworkable, given the “extraordinarily chaotic” and “volatile and dangerous” situation on the ground. He expressed concern that federal agents could be held legally responsible if a journalist or legal observer were accidentally exposed to tear gas or munitions, but Simon noted the ACLU had carved out an exception for that type of scenario in its request.

In his order several hours later, Simon highlighted the administration’s argument that federal officers were needed in Portland now because protests had been going on in the city for more than 50 nights. The fact that local police could comply with an order not to arrest or use force against journalists under those circumstances was “compelling evidence” that it was a workable set of terms, the judge wrote.

“When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland,” Simon wrote. “There is no evidence that the previous 21 nights were any less chaotic.”

Simon rejected the government’s argument that the journalists and legal observers lacked standing to bring the case because they had only pointed to past incidents involving encounters with law enforcement officers, as opposed to showing there was an ongoing threat. The judge wrote that, “The actions by the federal agents described by Plaintiffs are part of a pattern of officially sanctioned conduct.”

“Absent an injunction, the Federal Defendants will continue to target journalists and legal observers and require them to disperse or face force and vioience by federal officers, even when the journalists and legal observers are not engaged in any harmful or illegal conduct,” the judge wrote. “The threatened future harm is not speculative or hypothetical.”

Simon’s order comes as another federal judge in Portland weighs whether to impose a broader injunction that would restrict federal officers from making any arrest without probable cause and identifying themselves and their agency before detaining someone; one video has surfaced of federal agents snatching an individual off the street and putting them in an unmarked car. That case was brought by the Oregon attorney general’s office.

Denis Vannier, a lawyer for the city, argued on Thursday that President Donald Trump’s latest plan to deploy more federal agents to other cities, which, like Portland, lean politically liberal, undermined the administration’s argument that federal officers were in Portland for legitimate law enforcement reasons.

“Perhaps the elephant in the room is the fact that the president has stated publicly that, how can I put this, that the reasons for these deployments are political,” Vannier said.

Earlier Thursday, the inspectors general for the departments of Justice and Homeland Security announced that they are launching an investigation into the use of force by federal officers in Portland.

A Justice Department spokesperson did not immediately return a request for comment. A temporary restraining order typically is not the type of court order that can be appealed, but Warden said at the hearing that if Simon ruled against the government, they would explore options to appeal.

The ACLU released a statement saying Simon’s order was a “victory for the rule of law.”

“Federal agents from Trump’s Departments of Homeland Security and Justice are terrorizing the community, threatening lives, and relentlessly attacking journalists and legal observers documenting protests. These are the actions of a tyrant, and they have no place anywhere in America,” said Jann Carson, interim executive director of the ACLU of Oregon.

Chad Wolf: Acting Secretary of Homeland Security

Chad F. Wolf is the acting Secretary of Homeland Security and Under Secretary of Homeland Security for Strategy, Policy, and Plans. He previously served in several positions in the Department of Homeland Security (DHS), including as Chief of Staff of the Transportation Security Administration and Chief of Staff to DHS secretary Kirstjen Nielsen. He was an architect of the Trump administration’s family separation policy.

From 2005 to 2016, he was a lobbyist, helping clients to secure contracts from the Transportation Security Administration, his previous employer.

Education and early career

Wolf is originally from Plano, Texas.[2] He graduated from Plano East Senior High School and then attended Collin College on a tennis scholarship.[3] Wolf then earned a B.S. in U.S. history from Southern Methodist University.

He worked as a staffer for Republican Senators Phil Gramm, Kay Bailey Hutchison, and then Chuck Hagel, for whom he worked for two and a half years.[3][4][5] From 2002 to 2005, Wolf worked in the Transportation Security Administration (TSA), becoming Assistant Administrator for Transportation Security Policy in 2005.[4][5] From October 2005 to 2016, he was Vice President and Senior Director at Wexler & Walker,[4][5] a now-defunct lobbying firm.[6][7][2] He helped clients obtain contracts from the TSA, his previous employer.[8]

In 2013 he received a Master Certificate in Government Contract Management from Villanova University.[4]

Return to Department of Homeland Security

In March 2017 Wolf became Chief of Staff of the Transportation Security Administration.[2][4]

In 2018 he became Chief of Staff of DHS under Secretary Kirstjen Nielsen.[4] While working for Nielsen, he was an early architect of the family separation policy.[6] He later testified to Congress that his function was to provide information to the Secretary and “not to determine whether it was the right or wrong policy,”[6] though he agreed with the decision to end the policy.[9] He also testified that he was not involved in the initial development of the policy by the Executive Office of the President and the Attorney General, though this statement was disputed based on internal documents.[10]

He then became Assistant Secretary of Homeland Security for Strategy, Plans, Analysis & Risk,[4] a Senior Executive Service position not subject to Senate confirmation.[11] He concurrently served as Acting Under Secretary of Homeland Security for Strategy, Policy, and Plans.[4] He was nominated in February 2019 to serve permanently in the Under Secretary role,[12] and his confirmation hearing was held that June,[6] but the nomination was delayed by Senator Jacky Rosen to protest poor conditions for children at DHS facilities.[13]

Wolf briefs the White House press corps on the COVID-19 pandemic in March 2020

Wolf’s appointment as Acting Secretary of Homeland Security came after the departure of Kevin McAleenan was announced on November 1, 2019.[14] The fact that he had previously lobbied for the National Association of Software and Services Companies, which was in favor of the H-1B visa program, led to criticism from groups favoring more restrictive immigration policies,[12][15] but the Trump administration defended his record[6] and privately asked Republican senators not to oppose his appointment.[16]

The administration waited for Wolf’s confirmation as Under Secretary before appointing him to the Acting Secretary role,[17] to avoid appointing him as a principal officer from a non-Senate-confirmed position, which many scholars and former government officials have argued is unconstitutional.[14][18][19] DHS then had to move the Under Secretary position earlier in the line of succession, because the 210-day period in which an acting official may be named without a pending permanent nomination had expired, mandating that the duties of the Secretary must be performed by the department’s seniormost confirmed official.[17][20]

Wolf was confirmed as Under Secretary on November 13, 2019 on a 54–41 vote,[21] and was sworn in as acting Secretary of Homeland Security the same day.[22] On November 15, House Democrats Bennie Thompson and Carolyn Maloney requested that the Comptroller General of the United States review the legality of Wolf’s appointment on the basis that former Acting Secretary McAleenan did not have authority to change the department’s line of succession, asserting that former Secretary Nielsen had not properly placed McAleenan first in the line of succession before resigning, and additionally that McAleenan’s change came after the 210-day limit to his authority had expired.[9][23][24]

In February 2020, Wolf announced that the Trump administration was revoking New York residents’ ability to participate in Global Entry and other Trusted Traveler programs, in response to the state’s “sanctuary” immigration policies, which jeopardized the government’s ability to effectively vet travelers.[25][26][27] The move prompted the State of New York to sue the administration.[26]

In July 2020, Wolf sent federal agents dressed in camouflage and tactical gear to Portland, Oregon, where the agents used tear gas on protestors and pulled protestors into unmarked vehicles.[28] The agents did not have obvious marking or identification.[28] In the past, far-right militias had worn camouflage and tactical gear in clashes with other protestors in Portland, which sowed confusion.[28] Oregon Governor Kate Brown described the action as “abuse of power,” and accused Wolf of “provoking confrontation for political purposes.”[28] Portland mayor Ted Wheeler said it was “an attack on our democracy.”[28] Wolf said the protestors were a “violent mob” and “violent anarchists.”[28][29][30] The New York Times reported that an internal DHS memo had been presented to Wolf which said prior to the deployment that the federal agents in question had not been specifically trained in riot control or mass demonstrations.[31]

Personal life

Wolf is married and has two sons.[32]

Bill Barr Should Have Lost His Job This Weekend

The attorney general undermined the rule of law by forcing out Geoffrey Berman, the United States attorney in Manhattan.

President Trump has long made clear that, for him, “rule of law” is a limited-utility slogan. By word and deed, he has demonstrated his belief that the law exists to serve him, personally and politically.

He has pressured individuals and institutions to pervert their usual independent government missions to comply with a mandate of pure self-interest to protect the president and his friends and pursue the president’s adversaries. This explains Mr. Trump’s ire at his former attorney general, Jeff Sessions, for recusing himself from the Russia investigation; recusal made the protection part of the mandate harder to accomplish.

It also explains the president’s conduct at the heart of impeachment — using the diplomatic and financial levers of government to coerce Ukraine into announcing a damaging investigation of Joe Biden, his chief political rival. The episode is what the former Russia adviser Fiona Hill disparagingly referred to in her testimony as “a domestic political errand.”

Mr. Trump’s latest domestic political errand involves the office I led for almost eight years — the United States Attorney’s Office for the Southern District of New York in Manhattan, commonly known as S.D.N.Y., a place where politics is supposed to be off limits. The United States attorney, Geoffrey Berman, was fired on Saturday in a manner and under circumstances that warrant criticism and scrutiny.

To understand the uproar over the termination in legal circles, some context helps. S.D.N.Y. is famously and proudly independent. It embraces its nickname, the “Sovereign District of New York,” as a badge of honor. Sovereign, in the understanding of those who have served there, does not mean rogue. It signifies respect for law and scorn for political considerations. Republicans and Democrats are equally in the cross hairs.

The career lawyers are hired without knowledge of their politics or ideology. Mary Jo White, the U.S. attorney who hired me to be a prosecutor, opened an investigation of Bill Clinton, the president who appointed her, after he pardoned the fugitive financier Marc Rich. Such independent action would seem beyond this president’s comprehension.

That same commitment to independence is why I did not return President Trump’s unusual phone call to me in March 2017, after which he fired me.

The importance of reputational independence isn’t codified in a rule or a statute, but it is rightly embedded in the DNA of any worthy law enforcement institution for a simple reason: That independence gives comfort to the public that decisions about life and liberty will not be influenced by politics or partisan interests, that those decisions will not depend on an individual’s identity, wealth, fame, power or closeness to a president — every judgment rendered without fear or favor, as the oath commands.

It is this independence, and the public’s faith therein, that Attorney General Bill Barr, in cahoots with President Trump, threatened with his dubious, if legal, removal of Mr. Berman.

What prompted the termination? We don’t know and neither Mr. Barr nor President Trump has publicly said. Mr. Berman is a registered Republican, donated to the Trump campaign and was personally interviewed by the president. There has been no suggestion of impropriety or incompetence.

Against that backdrop, the only sin ascribable to S.D.N.Y. under Mr. Berman’s leadership, it seems, is violation of the commandment to protect the president’s friends and pursue his rivals. The president was unhappy with how the case against his former personal lawyer, Michael Cohen, was handled. The president was displeased that his handpicked U.S. attorney, Mr. Berman, removed himself from the case, unable to protect Mr. Trump from being incriminated in open court.

Then there is the reported continuing investigation of the president’s other personal lawyer, Rudolph Giuliani, a former law partner of Mr. Berman. Perhaps that was a bridge too far.

Maybe it had something to do with Turkey. According to John Bolton’s new book, in connection with a case involving the Turkish bank Halkbank in S.D.N.Y. that the Turkish president, Recep Tayyip Erdogan, didn’t like, Mr. Trump told the Turkish leader that the “Southern District prosecutors were not his people.”

I don’t know if any of these matters, individually or in combination, provoked the firing. It may be impossible to know.

But given the president’s track record, the absence of any other articulated reason and the peculiarity of the weekend termination, neither Mr. Trump nor Mr. Barr deserves much benefit of the doubt. Nothing about the weekend termination was regular or in good faith. It smacks of an effort to get rid of someone perceived to be disloyal in favor of someone more controllable. It may be legal, but it does not clothe the attorney general, or the department he leads, in honor.

It began with Mr. Barr declaring that the chairman of the Securities and Exchange Commission, Jay Clayton, would be nominated by the president to be the next head of S.D.N.Y., a somewhat odd choice. Mr. Clayton has never been a prosecutor and never worked in S.D.N.Y. (as has every other U.S. attorney going back two generations). The timing of the announcement, during the traditional news graveyard of Friday night, was further suspect.

More important, Mr. Barr, in a pro forma note of appreciation, thanked Mr. Berman for his service and said he was “stepping down” after two and a half years in the prosecutor’s office. The second part of that statement was an apparent lie. As Mr. Berman said in his own release later the same night, “I have not resigned, and I have no intention of resigning.”

In my experience, government officials don’t lie about the intentions of others when they are acting in good faith. Perhaps the attorney general thought Mr. Berman would be too cowed to contradict a pre-emptive public announcement of resignation. He was wrong. The next day, Mr. Barr sent a letter to Mr. Berman advising him the president had fired him (though Mr. Trump added to confusion and irregularity later in the day by saying, “I was not involved.”).

Forcing out a well-performing U.S. attorney of the same party, without explanation, on the eve of election, in favor of a less qualified candidate who golfs with the president (as Mr. Clayton does), in the midst of investigations known to be irksome to the president, does not reflect a commitment to law enforcement independence.

Within the Department of Justice, hardworking public servants — in the Southern District of New York and elsewhere — are angry, dismayed and demoralized. I’ve spoken to many of them this weekend. They are disheartened by the bad faith of Bill Barr and his determined efforts to undermine prosecutorial independence. On Saturday, finally assured his well-regarded and principled deputy, Audrey Strauss, would take over the reins, Mr. Berman left S.D.N.Y. with his head held high.

I believe the wrong Department of Justice official left office that day.

Who were those guys on Elizabethtown roofs?

If armed militia groups are going to give themselves permission to “police” local Black Lives Matter demonstrations, as they did in downtown Elizabethtown on June 6, I think it’s important to know a little more about them.

One of the groups in Elizabethtown — the Carlisle Light Infantry — claims to be the direct descendant of the Carlisle Light Infantry that marched with George Washington against the Whiskey Rebellion in western Pennsylvania and fought for the Union in the Civil War.

The other, now calling itself the Domestic Terrorism Response Organization, identified itself as “Anti ANTIFA” on a newly created Facebook page June 1, but changed to Domestic Terrorism Response Organization shortly after President Donald Trump declared the loosely organized American anti-fascist movement to be a domestic terror group.

The president’s attempt to avoid addressing concerns about police brutality expressed across the country failed miserably. Under U.S. law, the federal government can only “deem entities terrorists and impose sanctions on them” if they’re from another country, according to The New York Times on June 10.

Elizabethtown police Chief Edward Cunningham told LNP | LancasterOnline that he “became aware” on the night of June 5 that some shop owners had arranged their own security, but said he didn’t invite the militia groups or approve their plans. Apparently, borough Councilman Bill Troutman didn’t either. Nearly a week later, he was still demanding to know “who put those people on the roof,” according to LNP | LancasterOnline.

One gunman told LNP | LancasterOnline his name is Niels Norby Jr. and stated “I was there to protect everybody” — store owners, police and protesters.

The Domestic Terrorism Response Organization members present in Elizabethtown apparently offered no explanation for their presence there. “Anti-antifa” — a name it previously used on Facebook — is a term that has been coined by and linked to some white supremacist groups, according to the Anti-Defamation League.

The Carlisle Light Infantry, in its modern incarnation, describes itself on its website (carlislelightinfantry.com) as “the living, breathing, operational element of the 2nd Amendment as defined by the signers of the constitution of the United States as ‘a well regulated militia.’ ”

Asserting to be the revitalized progeny of the Colonial-era Carlisle militia, the current leaders explain on their website why they had to get the unit back up and running. Following are direct and unedited quotes: “We live in a time where we as citizens are apprehensive, even afraid of our uniformed officers. We’re doubtful and suspicious of our local elected officials. We’re convinced that our leaders do not have our best interests, our families and livelihoods, in mind as they make decisions that effect every aspect of our daily lives. We live in a time when our open arms to the world and it’s many peoples and cultures invites risk and harm to our own. We therefore live in a time where it’s our personal and civic duty to stand up for what’s right, and protect what matters most.”

Despite its assertion that “we do not, and will not, discriminate against anyone,” there is not one black or brown face in the several group photos posted its website. Put all of that together and you come up with what sounds to me like another white nationalist group intent on imposing its jaundiced view of 21st-century American society on communities (as it did in Elizabethtown on June 6), whether we ask for it or not.

Shocking as it is to view photos of these people brandishing their weapons on the rooftops of downtown Elizabethtown, it really is nothing new. Militia members essentially threatened to lynch Michigan Gov. Gretchen Whitmer last month to express their displeasure with restrictions imposed to protect them from the deadly coronavirus.

But they go much further back than that. I met these disaffected Americans years ago when I was reporting in Michigan, Indiana and upstate New York. Like the Carlisle group, they called themselves “real” patriots. Those I met had lost faith in this country and its institutions, including the political system, the police and the military. Like the Carlisle Light Infantry, those militia members lived in fear; for them it was fear of a one-world government, secret messages on the back of road signs and black helicopters on the horizon.

For the Carlisle Light Infantry, it’s — in my view — fear of people of color, immigrants, diversity and a world not dominated by white people.

I felt sad talking to those militia groups back then, and the same sadness washes over me as I listen to these militia groups today. Their members seem so desperate that they’re willing to take up arms against their fellow citizens.

Back then, I tended to write these folks off as an insignificant splinter of the American body politic. But I don’t think we can ignore them anymore. They have a president who seemingly encourages them to take the law into their own hands and who shows no signs of understanding the traumatic experiences of any Americans, black or white.

Notice that today’s militia members seemingly express no sense of identifying with the struggle for racial equality and justice now sweeping across our country. It was a peaceful desire to support Black Lives Matter that triggered the protest in Elizabethtown on June 6. But the Domestic Terrorism Response Organization and the Carlisle Light Infantry didn’t come for that. They stood with trigger fingers at the ready — an intimidating, self-appointed presence — apparently prepared to take out anyone who crossed whatever lines they drew for acceptable behavior during a demonstration against police brutality.

Although the Carlisle Light Infantry puts in a lot of time drilling, these members are not trained police officers. Thank God the day did not end in tragedy. But the challenge posed by these groups did not end at sundown in Elizabethtown. A civil society cannot allow violence or the threat of violence to usurp the rule of law.

These are tragically disappointed people, gripped by fear and a mindset that will lead to nothing good. We must invite them back into the community dialogue now — for their sake and ours. There’s no better time than the present.

 

 

Cutting through the Green Tape: Who called the militia to ‘protect’ during Elizabethtown Protest