Trump's Private Army Could Turn U.S. Into A Banana Republic

By unleashing Federal law enforcement agents on protestors in Portland, President Donald Trump has launched his most dangerous assault on American democracy.

Under a thin veneer of legality, Trump is attacking a key pillar of our freedom: the Federal government cannot unilaterally deploy its armed forces inside the United States. Once again, this President is violating the law, and, this time, basic constitutional rights of American citizens.

If Trump gets away with this latest outrage, our country could become a banana republic, and we might have to say adios to our democratic form of government.

Here’s the question that we should all worry about: is Trump using these tactics to run as a “law and order” candidate, to prop up his faltering campaign? Or is Trump laying the groundwork for a coup in November, if he loses the election?

A President Can’t Use the Military as a Domestic Police Force

One of the bedrock principles of our history is that the U.S. government cannot use its armed forces domestically, except in extremely rare circumstances. That has been the law of the land since the Posse Comitatus Act was passed in 1878, after the Civil War. The Act states that it is “unlawful to employ any part of the Army” for law enforcement in the U.S., except as specifically authorized by the Constitution or Congress.

The Act also applies to the Navy, Air Force and the Marines. The U.S. military has a strong tradition of not interfering in domestic politics, partly because of the Act.

This is why Mark Esper, the Secretary of Defense, and General Mark Milley, the Chairman of the Joint Chiefs of Staff, apologized for participating in the infamous walk from the White House to St. John’s Church. They also made clear, in separate statements, that the U.S. military should not be used to suppress protests. This was a clear message to the President that the armed forces under their command would not do his dirty work.

After all, the protestors in Washington, and the overwhelming majority of demonstrators in Portland, were simply exercising their First Amendment rights to assemble and to express their political views. The U.S. armed forces have no business interfering with these fundamental democratic rights.

photo: John Rudoff/Anadolu Agency via Getty Images

There are some very limited exceptions to this principle. A President can call up National Guard or Army units if state and local officials request federal assistance, such as during the race riots of the 1960s.

A President can also use such forces if local authorities refuse to enforce federal laws. For example, President Ike Eisenhower sent Army troops to help de-segregate schools in Arkansas in 1957, when the governor defied a Supreme Court ruling that banned racial discrimination in schools.

Riding Roughshod Over Oregon Officials

But neither exemption applies to the use of federal forces in Portland.

State and local leaders in Oregon have bitterly opposed the deployment of federal agents in Portland. Gov. Kate Brown pleaded with Chad Wolf, the acting secretary of the Department of Homeland Security (DHS), to withdraw the Federal units from Portland, but he refused. Tom Wheeler, the city's mayor and police commissioner, has accused Trump of using Federal officers to provoke conflicts for political reasons.

Ellen Rosenblum, the Attorney General for Oregon, sought a restraining order in Federal court to prevent the agents from making arrests without probable cause. The judge denied her motion.

The two U.S. Senators from Oregon, Ron Wyden and Jeff Merkley, both Democrats, have lambasted the use of federal forces, which Merkley has called “paramilitary squads”. The U.S. Attorney General for the District of Oregon has asked the DHS Inspector General to investigate the tactics employed by the agents.

The Federal officers have used tear gas, rubber bullets, and pepper spray against protestors. These weapons can cause serious injuries; one protestor suffered a fractured skull when he was hit by a “munition.” They have beaten civilians, such as a middle-aged Navy veteran, with batons.

The agents don’t wear insignia or name tags (like Putin’s “little green men” in Crimea). They have arrested citizens for no apparent cause, hauling them into unmarked vans for hours of detention and interrogation.

This is tyranny. It has no place in a democratic society. The Feds should let Oregon officials handle the situation.

Despite the hype and lies from Trump, Portland is not “out of control”. Most of the city is calm. The protests are largely peaceful and only affect a few blocks. All the local leaders agree that the presence of the Federal agents has caused the protests to escalate.

Distorting the Homeland Security Law

The Administration is basing its unprecedented intrusion into local law enforcement on a distorted reading of the Homeland Security Act. Under 40 U.S. Code section 1315, the DHS Secretary can deputize other Federal agents to assist the Federal Protection Service, which is the agency responsible for safeguarding Federal buildings and property, such as courthouses and monuments.

Conveniently for the Administration, there is a Federal courthouse in Portland (as in many major American cities); some protestors have attacked the building violently.

The Federal government is trying to use this provision of the Homeland Security Act to do an end-run around the Posse Comitatus Act. The Administration is exploiting a few apparent loopholes, while ignoring the spirit of the law and long-standing tradition. The Posse Comitatus Act does not apply to the Coast Guard, ICE or Customs and Border Patrol agents.

Trump’s "Private Militia"

However, that’s probably because no one ever imagined a President would deploy Federal officers as a private army inside the United States. Their role is to protect our borders. Trump has resorted to using officers from various Federal agencies precisely because he cannot call up the military, because of the Posse Comitatus Act.

There is no excuse for demonstrators trying to damage a Federal building. However, the Homeland Security Act does not justify Trump’s massive use of force in Portland. That law was intended to allow the Federal government to respond to a catastrophic event, such as a terrorist attack…not a primarily peaceful demonstration by civilians.

Tom Ridge and Michael Chertoff, who served as heads of Homeland Security under George W. Bush, signed an open letter (dated June 15, 2020) deploring the use of Federal agents in Washington. And last week, Mr. Ridge attacked Trump’s talk about sending Federal agents to several more cities, saying,

“The department was established to protect America from the ever-present threat of global terrorism. It was not established to be the president's personal militia”.

So how will Trump use his private army over the next 100 days? To bolster his poll numbers…. or to launch a coup in November? We’ll talk about that in another column. Just bear in mind that there is a Federal courthouse in many American cities. And, in a pinch, there’s always a post office….

The Wall Street Democrat