“Portland, which is out of control, should finally, after almost 3 months, bring in the National Guard. The Mayor and Governor are putting people’s lives at risk. They will be held responsible. The Guard is ready to act immediately. The Courthouse is secured by Homeland!”
That was President Donald Trump on Twitter on Aug. 10, urging Oregon Democratic Governor Kate Brown to deploy the National Guard after a riot was declared in Portland, Oreg. when the Portland Police Association (PPA) building was set on fire.
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For more than two months, federal law enforcement officials including the U.S. Marshals have had to defend the Mark O. Hatfield Federal Courthouse from violent protesters and rioters including Antifa, who have been attempting to burn it to the ground since the murder of George Floyd in Minneapolis police custody.
As the situation escalated on Aug. 9, Portland Police issued a warning on Twitter, stating, “Those near the PPA Office: Do not engage in criminal activities including, but not limited to, vandalism, unlawful entry to the building, or fire starting. Failure to adhere to this order may subject you to arrest and/or the use of crowd control munitions and/or tear gas.”
Portland Democratic Mayor Ted Wheeler had a mixed message for rioters on Aug. 7. On one hand, as rioters converged on a police precinct, Wheeler declared, “You are not demonstrating, you are attempting to commit murder.”
On the other, the mayor appeared worried that the riots were helping President Donald Trump’s reelection bid: “Don’t think for a moment that if you are participating in this activity, you are not being a prop for the reelection campaign of Donald Trump — because you absolutely are… If you don’t want to be part of that, then don’t show up.”
And yet, Mayor Wheeler and Governor Brown are not putting the National Guard on the streets to restore order to the situation. Maybe they’re worried that might help Trump, too.
How does that work anyway? This gives the appearance that Wheeler and Brown are making life-and-death decisions on whether to protect government buildings including police precincts based on how it impacts the presidential election in November. That’s pretty twisted.
That’s what it looks like to the American people, too. A July 29-30 Rasmussen Reports poll found that 50 percent of likely voters believe political leaders in major cities like Portland and Seattle are facilitating violent protests by limiting police response. That includes 72 percent of Republicans, 33 percent of Democrats and 48 percent of unaffiliated voters who think Democrats are allowing the urban violence to spread. Only 31 percent of all voters disagreed. 19 percent were unsure.
In testimony before the House Judiciary Committee on July 28, Attorney General William Barr blasted the violence, saying, “What unfolds nightly around the courthouse cannot reasonably be called a protest; it is, by any objective measure, an assault on the Government of the United States.”
Barr explained the violence at the end of July, “In recent nights, rioters have barricaded the front door of the courthouse, pried plywood off the windows with crowbars, and thrown commercial-grade fireworks into the building in an apparent attempt to burn it down with federal personnel inside. The rioters have started fires outside the building, and then systematically attacked federal law enforcement officers who attempt to put them out—for example, by pelting the officers with rocks, frozen water bottles, cans of food, and balloons filled with fecal matter. A recent video showed a mob enthusiastically beating a Deputy U.S. Marshal who was trying to protect the courthouse – a property of the United States government funded by this Congress – from further destruction. A number of federal officers have been injured, including one severely burned by a mortar-style firework and three who have suffered serious eye injuries and may be permanently blind.”
Since that time, on July 29, Gov. Brown attempted to declare that federal law enforcement had “withdrawn” from Portland only to be contradicted by Acting Homeland Security Secretary Chad Wolf and President Trump.
“After my discussions with VP Pence and others, the federal government has agreed to withdraw federal officers from Portland,” Brown tweeted.
After my discussions with VP Pence and others, the federal government has agreed to withdraw federal officers from Portland. They have acted as an occupying force & brought violence. Starting tomorrow, all Customs and Border Protection & ICE officers will leave downtown Portland.
— Governor Kate Brown (@OregonGovBrown) July 29, 2020
But Secretary Wolf stated in contradiction, “Our entire law enforcement presence that is currently in Portland yesterday and the previous week will remain Portland until we are assured that the courthouse and other federal facilities will no longer be attacked nightly and set afire… DHS law enforcement that are there today will remain in Portland until we are assured that Oregon State Police and plans that the governor has put together is successful… The entire DHS law enforcement presence in Portland will remain in Portland.”
On Aug. 10, Trump confirmed federal presence in Portland, affirming on Twitter, “The Courthouse is secured by Homeland!” And now, with the President’s call for Oregon to bring in the National Guard, the situation could be coming to a head, with Trump contemplating sending in the Guard on Brown’s behalf, as he has previously warned he would.
Under 10 U.S. Code § 252, “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
Enacted in 1792 in response to the Whiskey Rebellion and updated in 1795, in 1807 as the Insurrection Act, in 1861 and 1956, the law allows the President to restore civil order with or without a governor’s consent. It was used by George Washington to put down the Whiskey Rebellion, by Abraham Lincoln to wage the Civil War and by Dwight Eisenhower in 1957 when Arkansas attempted to use the Arkansas National Guard to block Brown v. Board of Education and Eisenhower federalized the Guard to enforce it. In Lincoln and Eisenhower’s cases, neither intervention was requested by state governors.
Which, Brown and Wheeler may simply lack the political will to do what is necessary to preserve law and order for fear it might help President Trump politically. That’s just too bad. Governor Brown and Mayor Wheeler must realize that if they refuse to restore civil order, President Trump is more than willing to step in and do it for them.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
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