Quinta Jurecic and Benjamin Wittes write:

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. [Continue reading…]