President Trump is attempting to turn “law and order versus anarchy” into an election issue that will distract voters from the White House’s incompetence in dealing with Covid-19 and the economic consequences of the pandemic, and provide cover for its perpetuation of systemic racial injustice. He has sent armed federal agents into majority-Democratic cities on the pretext of quelling unrest stemming from Black Lives Matter protests. At the same time, he appears to be encouraging his supporters to sow chaos in Democratic cities in order to create an excuse for redeploying federal forces and to reinforce fears of disorder.
Trump’s first martial response to the protests, which have been overwhelmingly though not exclusively peaceful, was to use the active-duty military. On June 1, he had administration officials mobilize low-flying military helicopters and military police to help law enforcement personnel clear a path through unthreatening Black Lives Matter and kindred protesters so that he could walk from the White House across Lafayette Square for a photo op with a Bible at a church. He was flanked by the chairman of the Joint Chiefs of Staff, General Mark Milley (in combat fatigues), and Secretary of Defense Mark Esper, as well as Attorney General William Barr and other senior officials. In the Rose Garden, just before he walked to the square, Trump declared himself “your president of law and order.” He wanted a larger deployment of troops in Washington, and the Pentagon placed a 1,600-strong rapid-reaction unit drawn from the Eighty-Second Airborne Division and several military police units on standby near the city. Cooler heads prevailed, but only barely.1
The president’s power to use the military domestically is strictly limited. Civilian control of the military is enshrined in Article II of the Constitution. Under the Tenth Amendment, however, the power to police is among those “not delegated to the United States” and is thus “reserved to the states.” Furthermore, the US armed forces are customarily focused on external threats and overseas operations, and federal laws restrict US military authority and actions in domestic situations. Under the Posse Comitatus Act of 1878, the military cannot be used to enforce domestic civilian law, unless expressly authorized by the Constitution or an act of Congress.2 Exceptions to the act passed in the 1980s allow the armed forces to provide intelligence support and equipment to state authorities for law enforcement purposes, but fall far short of allowing domestic troop deployments.
The most substantial exception to the Posse Comitatus Act is based on the Insurrection Act of 1807. It permits the president to deploy the armed forces domestically to suppress civil disorder when ordinary law enforcement is unable to. Its primary purposes are to protect the rights of American citizens in the absence of state and local safeguards and to preserve the rule of law. This authority is narrowly construed, and over the past 213 years presidents have invoked the Insurrection Act infrequently. Although it does not expressly require state consent for intervention, in most cases in which the federal government has deployed troops—even controversial ones, as when President Rutherford Hayes used them to end railroad strikes in several states in 1877—it has been at the request of state authorities.
The only explicitly defined instances in which the federal government can intervene without state consent are direct rebellion against federal law and authority (which Congress anticipated would arise in the aftermath of the Civil War) and persecution of African-Americans in violation of the equal protection clause of the Fourteenth Amendment. In 1894 President Grover Cleveland used the first exception to justify his deployment of thousands of US marshals and army troops to break the Pullman strike without state requests for help, but federal legislation eventually barred federal injunctions against organized labor actions and therefore the use of federal troops to interfere with them.
After World War II the second exception was more expansively applied. In 1957 President Dwight D. Eisenhower sent federal troops to Little Rock, Arkansas, to desegregate the city’s Central High School. In 1962 Attorney General Robert Kennedy dispatched federal officers to ensure the security of James Meredith, the University of Mississippi’s first African-American student, when he registered. When violence ensued, President John F. Kennedy sent in US military police units and federalized the Mississippi National Guard. In 1965 President Lyndon Johnson deployed federal troops to protect civil rights marchers in Alabama, many of whom—including the future congressman John Lewis—had been beaten by state troopers. These cases involved the protection of civil rights that state authorities were failing to enforce.
Barr has deceptively claimed that the George H.W. Bush administration’s use of the Insurrection Act in 1989 to send troops in response to looting and unrest in the US Virgin Islands following Hurricane Hugo constitutes valid precedent for sending federal security forces to respond to protests in American cities without state or local consent. In fact, senior Virgin Islands officials had requested federal assistance. In 1992 the same administration, during Barr’s first stint as attorney general, deployed federal law enforcement and military personnel to Los Angeles to put down unrest over the acquittal of policemen for beating Rodney King, but only at the California governor’s request. That was the last time the federal government invoked the Insurrection Act, and it was widely criticized.
After the Lafayette Square incident, senior US military officers, both retired and active, made it clear that they do not believe the military should intervene against protesters and that present conditions do not warrant military involvement to ensure public safety and order. The pointed objections of James Mattis (a retired four-star Marine general and former secretary of defense), Michael Mullen (a retired four-star admiral and former chairman of the Joint Chiefs of Staff), Martin Dempsey (a retired four-star general and former chairman of the Joint Chiefs), and a contrite General Milley to Trump’s cynical show of military force appear to have deterred the president from further attempts to use the active-duty military, and to a lesser extent the National Guard, to advance his domestic political interests. At least implicitly, their statements recognize the duty of military officers to uphold the Constitution—even in the event of a direct order to the contrary.
The decline of military personnel’s approval of Trump’s leadership, which is likely to have fallen further because of recent revelations of his contempt for military service, suggests that commanders would encounter little rank-and-file resistance if they refused to undertake unconstitutional domestic tasks.3 His relationship with the armed forces may have deteriorated even more after he incoherently insulted their leadership in a post–Labor Day rant. In any case, the military turned out to include good constitutionalists who erected a barricade to Trump’s martial designs. General Milley told the House Armed Services Committee in late August that he “foresee[s] no role for the US armed forces” in the electoral process and that he “will not follow an unlawful order.”
However, with the help of Barr—a leading proponent of the crypto-monarchist “unitary executive” theory of presidential power—Trump has forged a detour around the military’s principled disengagement through the Department of Homeland Security’s statutory mandate to “protect the buildings, grounds, and property that are owned, occupied, or secured by the Federal Government (including any agency, instrumentality, or wholly owned or mixed-ownership corporation thereof) and the persons on the property.” That mandate includes the power to designate armed federal employees with full powers of arrest and detention for that purpose and to deploy them “in areas outside the property to the extent necessary to protect the property and persons on the property.” But while the statute permits “investigations” of crimes against federal property or personnel “on and off the property in question,” it does not specifically sanction enforcement action outside the boundaries of that property.
On June 26 Trump issued an executive order authorizing the DHS (as well as the Department of Defense and the Department of Justice) to dispatch federal personnel unilaterally to protect federal property; the DHS then established the Protecting American Communities Task Force (PACT). The administration’s justifications for federal intervention have been erratic, lurching from specifically targeting “violent anarchists” to generally trying to “drive down violent crime.” In addition to falling outside clear statutory authority, both pretexts are factually questionable, as the protests have been largely nonviolent and the crime rate—while ticking upward due to the exigencies of Covid-19 and the contingencies of political protest—remains relatively low.
Nevertheless, in early July PACT initiated “Operation Diligent Valor,” in which over a hundred agents were sent to Portland, Oregon, ostensibly to protect federal property endangered by demonstrations. They stayed in place for over a month, and after they withdrew remained on standby. Later in July, the DHS deployed tactical border officers to Seattle to deter protests. At about the same time, the department launched “Operation Legend” with the broader mandate of providing general law enforcement assistance not specifically related to protests. Some 225 federal agents were sent to Kansas City, Missouri, and subsequently over two dozen each went to Albuquerque, Chicago, Cleveland, Detroit, and Milwaukee. Trump vaguely threatened to send more to Oakland—a predominantly Democratic city.
For personnel, the Trump administration has drawn profligately on federal agencies—including the FBI; the Bureau of Alcohol, Tobacco, Firearms and Explosives; Customs and Border Protection; the Drug Enforcement Administration; Immigration and Customs Enforcement; the US Marshals Service; the Federal Bureau of Prisons; and the heretofore obscure Federal Protective Service—with very different missions and insufficient training for urban policing. It has deployed them in unmarked vehicles and wearing combat fatigues with insignia of their affiliations obscured—reminiscent of Russia’s mysterious “little green men,” masked and untagged special operations soldiers deployed in Crimea in 2014–2015 who Russian president Vladimir Putin claimed were “self-defense groups.” Furthermore, the Federal Protective Service—a division of the DHS with an annual budget of over $1 billion that has been responsible for the “crowd control” efforts in Portland and elsewhere—appears to be staffed mainly by outside contractors from private military companies, that is, mercenary outfits. The agency has a recent history of inadequately vetting and monitoring personnel, some of whom have had felony convictions and poor firearms training, according to US Government Accountability Office reports.4
Senior officials of these agencies have seemed as gung-ho as Trump and Barr about suppressing protests. Acting Secretary of Homeland Security Chad Wolf flew to Portland for a photo op alongside federal agents in front of the federal courthouse. David L. Bowdich, the FBI’s deputy director, suggested in a June 2 memo that the administration could simply cite, as support for deploying federal law enforcement, the Hobbs Act—a 1946 law that imposes criminal penalties for labor racketeering. Yet a memo prepared six weeks later by the DHS’s Counterterrorism Mission Center admitted that the department still “lack[ed] insight into the motives” for the Portland unrest.
Like the president’s power to use the military domestically, the DHS’s statutory authority to deploy federal law enforcement personnel to states and cities is strictly limited. The Trump administration’s recent actions are of dubious legality, and it has departed radically from past federal interventions in local policing by deploying forces largely against the wishes of state and local governments, several of which have sued or passed ordinances to block such deployments. It has also betrayed motives that turn on domestic politics rather than sound governance. The administration has overtly linked the deployments to the false claim that as president Biden would defund police forces and to assertions in Trump campaign ads that “dangerous mobs of far-left groups are running through our streets and causing absolute mayhem.” Trump has also implicitly connected urban violence to race: on July 23 he tweeted to “Suburban Housewives of America” that “Biden will destroy your neighborhood and your American Dream.”
In a memorandum leaked to Lawfare on July 19, the DHS’s Office of Intelligence and Analysis essentially sanctioned the federal usurpation of local law enforcement. It authorized, on the basis of Trump’s executive order, “expanded intelligence activities necessary to mitigate the significant threat to homeland security” presented by increased risks to federal property that justified the mobilization in the first place. More particularly, the memo interpreted perceived threats to public monuments, memorials, or statues—which most protest actions can be construed to present—as a basis for domestic intelligence collection on those identified as posing the threats. While a few boilerplate terms of restraint were thrown in, the federal activity that the memo contemplated amounted to domestic surveillance of any potential vandal who publicly expressed political dissent.5 It’s worth remembering that Congress created the DHS in late 2002 in response to September 11, primarily to protect Americans against foreign terrorist threats, not to suppress domestic political protest.
Willful mission creep was especially evident in Portland, where federal agents in riot gear ventured far beyond federal property, confronted peaceful protesters, and made illegal arrests. Two federal agents grabbed a peaceful demonstrator and bundled him into an unmarked van; the incident was recorded in a video that quickly went viral. Kris Cline, deputy director of the Federal Protective Service, absurdly claimed that the agents’ flagrantly coercive and custodial action was “a simple engagement” that did not require probable cause. That episode was reportedly not an isolated one. Federal personnel also beat a nonviolent Navy veteran who stood in protest, and shot a man in the face with a rubber bullet, fracturing his skull.
Meanwhile, Trump has condoned actions by his supporters that were considerably more disruptive and threatening than anything Black Lives Matter demonstrators have done. He tweeted his support for the “American Patriot Rally” in April at the state house in Lansing, Michigan, in which participants carrying assault rifles denounced Democratic governor Gretchen Whitmer’s stay-at-home orders for combating Covid-19. He invited a St. Louis couple who confronted Black Lives Matter demonstrators at gunpoint—for which they were charged with unlawful use of a weapon—to speak at the Republican National Convention. He expressed sympathy for Kyle Rittenhouse, a supporter who killed two people and wounded another during antipolice riots in Kenosha, Wisconsin, on August 23, suggesting that he acted in self-defense. After far-right activists descended on downtown Portland on August 29 in a lengthy caravan of vehicles festooned with American flags and Trump campaign banners, firing paintball rounds and pepper-spraying people, he extolled them as “GREAT PATRIOTS.”
Furthermore, the administration has conspicuously procrastinated in rolling out a robust program promised over a year ago for deterring and apprehending domestic extremists—in particular, white supremacists and antigovernment nationalists, who have shown support for Trump. And Brian Murphy, former head of the DHS’s intelligence and analysis branch, has said in a whistleblower complaint that a superior ordered him to understate white supremacist threats and overstate left-wing ones, and in March blocked the release of a threat assessment citing white supremacy as well as Russian election interference as a major threat.
Trump has not only made “law and order” the centerpiece of his reelection campaign and the DHS its vanguard. He has also tried to muster a kind of praetorian guard for himself, composed mainly of government loyalists rounded out, it seems, by sympathetic mercenaries. Its evident purpose is not to maintain order and the rule of law through conventional policing but rather to support his presidency with the use of extralegal paramilitary tactics in American cities. This exceeds anything that Richard Nixon—until now the American president most abusive of executive power—ever did. While Nixon demonized antiwar demonstrators, he did not contemplate calling up anything like what his former White House Counsel John Dean has recently called a “mongrel federal law enforcement operation” to put down political protests.6
In light of the inadequacy of federal agents’ training for the responsibilities they have assumed in Portland and elsewhere, not to mention the right-wing zeal of many of them, the excessive use of force against demonstrators, resulting in serious injuries or deaths, seems practically inevitable if deployments of federal forces escalate. So far, though, Trump has appeared oblivious to the political perils of a tragedy like the Ohio National Guard’s killing of four undergraduates protesting the Vietnam War at Kent State University in 1970, which provoked outrage and student strikes across the US. His thinking seems more in tune with Massachusetts governor Calvin Coolidge’s in unleashing the Massachusetts State Guard for two months to break the Boston Police strike in 1919 during the Red Scare. Eight people were killed, but Coolidge was propelled to national prominence and eventually the presidency.
Persistent large-scale protests, however peaceful, could impel Trump to impose something close to martial law in advance of the election. In early September Barr instructed federal prosecutors to consider charging especially unruly protesters with sedition—a rarely applied federal offense usually confined to criminal conspiracies to overthrow the government. An alleged attempt to overthrow the government, of course, would also be a basis for invoking the Insurrection Act.
Regardless of the stated justification, sending in hundreds of federal agents in July, by Trump’s and Barr’s reckoning, has established a bureaucratic precedent that makes it easier to justify deploying thousands in October. Wolf has indicated that reinserting federal officers in Portland remains an option. Trump could use his federal militia to incite more protests, which would in turn justify escalating deployments: the federal paramilitary surge in Portland energized protests in other progressive cities. In turn, he might construe such protests as grounds for short-circuiting constitutional protections, including habeas corpus, and—as he threatened in May—designate “antifa” activists as members of a terrorist group, even though counterterrorism experts consider antifa a nebulous, low-grade threat and not a cohesive organized group, which makes it legally unsuitable for terrorist designation.
Trump now has rich political fuel for such a move: Michael Reinoehl—an avowed antifa supporter who was shot dead by law enforcement officers, including US marshals, while trying to elude them—is believed to have killed Aaron J. Danielson, a follower of the far-right group Patriot Prayer who had been spraying mace at protesters in Portland on August 29. Trump has bolstered Danielson’s martyrdom, retweeting a message from Amy Kremer, cofounder of Women for Trump, proclaiming him “a good American that loved his country and Backed the Blue” who was “murdered by ANTIFA.” In a Fox News interview, Trump characterized Reinoehl’s killing as “retribution.” Even if ultimately ruled illegal, designating antifa a terrorist group could temporarily provide federal officers more expansive grounds for arresting or otherwise intimidating prospective voters. The latest Portland episode, which involved far-right groups like the Proud Boys and the Three Percenters as well as Patriot Prayer, has also presented Trump with a stealthier alternative: encouraging his supporters to goad protesters into violence, which could prompt federal intervention or simply reinforce the need for a supposedly law-and-order president.
Yet Trump’s coercive approach appears to be producing diminishing returns. The deployment of federal forces has not improved his poll numbers, while Biden’s went up after Lafayette Square. The law-and-order message blared at the Republican National Convention also had no appreciable effect on Trump’s support. The administration started to back away from federalizing law enforcement in Portland in late July, agreeing to withdraw agents as long as the federal courthouse was secure. An administration official admitted that scenes of federal agents suppressing crowds with tear gas and nonlethal munitions could become a political liability. Indeed, it appeared that those agents were the cause of rather than the antidote to pitched agitation in Portland in July, since the unrest decreased precipitously when they withdrew. But Trump may be banking on unrest like that in Kenosha and Portland to make independent and moderate voters more receptive to his law-and-order message, as they momentarily seemed to be in Wisconsin, and to increase his freedom of action.
Trump, with an eye on Belarusian president Aleksandr Lukashenko’s brutal defiance of mass protests following a flagrantly rigged election and an ear to Putin’s counsel on authoritarianism, is likely to do anything to remain in office and refuse to leave quietly regardless of how many votes are counted against him. But current polls suggest that Biden would not lose a fair election. Democrats would do well to focus on keeping the emotions summoned by events in Kenosha and Portland from spinning out of control, and calming protesters in order to deprive Trump of any pretext for further attempts to disrupt or invalidate the electoral process.
In the political tinderbox that Trump has created, steady determination on the part of Democrats is more apt than rancorous confrontation to ensure maximum turnout, an orderly process, and voter access.7 This is not to say that their self-discipline will guarantee a smooth transition. A win for Biden—whether definite or suspect—might well give rise to major pro-Trump demonstrations, possibly violent ones. As a nominal lame duck, Trump may claim the election was fraudulent, angle for help from a Supreme Court now likely to be more conservative following the death of Ruth Bader Ginsburg, and resist relinquishing the White House. Roger Stone, whose forty-month prison sentence for crimes connected with Russian interference in the 2016 election Trump commuted in July, has publicly suggested that if he loses the election he should declare martial law and confiscate ballot boxes. A suspect win for Trump would surely produce anti-Trump protests larger and more widespread than the recent ones, and provide an excuse for a more extensive federal crackdown. The Biden team should have lawyers ready for action in all potentially relevant jurisdictions, prepared for a civil and constitutional crisis.
The main thrust of Trump’s effort to preclude a Biden victory will likely be to attack the integrity of the mail-in voting process. But if there is a consensus projection of a clear Biden win on election night, before most mail-in ballots are counted, Trump’s strategy will be seriously compromised. Despite the looming dread, the most urgent priority for Democrats is not to fret or demonstrate provocatively in the streets but to stay healthy and vote—in person, if at all possible.
—September 24, 2020
See Eric Schmitt et al., “Esper Breaks with Trump on Using Troops Against Protesters,” The New York Times, June 3, 2020. ↩
For a thorough discussion of the relevant law, see Jennifer K. Elsea, “The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law,” Congressional Research Service Report, November 6, 2018. ↩
See my “The Commander in Chief’s Following Wanes,” The New York Times, May 18, 2020; and Jeffrey Goldberg, “Trump: Americans Who Died in War Are ‘Losers’ and ‘Suckers,’” The Atlantic, September 3, 2020. ↩
See Bill Conroy, “The Lead Federal Agency Responding to Protesters in Portland Employs Thousands of Private Contractors,” Medium, July 22, 2020. ↩
See Stephen Vladeck and Benjamin Wittes, “DHS Authorizes Domestic Surveillance to Protect Statues and Monuments,” Lawfare, July 20, 2020. ↩
See John W. Dean, “Trump Has Been Comparing Himself to Nixon. That’s Hooey,” The New York Times, July 31, 2020. ↩
To similar effect, see George Packer, “This Is How Biden Loses,” The Atlantic, August 28, 2020. ↩