Barr’s Army: The Slender Legal Reed for Overtaking American Cities

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Wall of Moms, Portland. Photo credit: Reuters/Caitlin Ochs

Portland Mayor Ted Wheeler and other elected officials in Oregon have been telling Washington in no uncertain terms: “Take your troops out of Portland.”

Wheeler has referred to the unidentified federal individuals dressed in camouflage and driving unmarked vans as President Trump’s “personal army.” You’ve no doubt heard that there have already been casualties in this foray.

But it would be more appropriate to call them “Barr’s army.” Our quite-recent history includes Attorney General Barr’s giving the orders for the attack on nonviolent protesters outside of the White House to facilitate Trump’s photo op holding a Bible.

That episode, which generated anger and ridicule for the President, led General Mark Milley, chairman of the Joint Chiefs of Staff, to apologize and say he should not have been there.

Using federal forces against an unwilling state or municipality has apparently been a work-in-progress for Barr for decades, according to an article in justsecurity.org, an organization based at the Reiss Center on Law and Security,  New York University School of Law.

The article is titled “Portland’s Pretext: Barr’s Long History Manipulating Law to Put Federal Forces on US Streets.” (all emphases mine)

Since the President has already announced his plans to have counterparts to the forces now in Portland readied for “deployment” wherever and wherever the Attorney General and or the President chooses—specifically, Chicago, New York, and any other city run by Democrats that they deem “out of control,” it seems useful to look closely at Barr’s well-formed plan.

It can be traced back to the Virgin Islands, where there were civil disturbances following a large hurricane (Hugo) in 1989. Barr was then an assistant attorney general, leading the Justice Department’s Office of Legal Counsel.

According to the authors of the justsecurity piece, in a 2001 interview Barr “boasted that during this time he found a way to deploy federal forces based on a legal justification that appears to now being played out in Portland:

“Barr: We started quickly looking at the legal books. What authority do we have to go in there and start enforcing the law in St. Croix? We looked at some statutes, and we finally decided that without Presidential authority we could send down law enforcement people to defend the federal function.

“That is, we said, ‘People are interfering with the operation of our courts’ and so on. I said, ‘We can send people down to defend the federal function, keep our courts open, and if they see any crime being committed in front of them, then, as law enforcement officers, they can make the arrest.’ Our object was just to get federal law enforcement down there and play it by ear. Technically, we couldn’t send them down to—

“Question: Did you consider interference with the mail as a basis?

“Barr: Yes, we had a whole list of things like that, interference with the mail, interference with the courts. But basically we were claiming that there was breakdown, civil unrest that was interfering with the federal function. We found these old cases that said the federal government could go in there. This was without declaring martial law.”

So he claimed they used the purported—and false—need to defend the federal function of the courts to put down the looting and unrest in the Virgin Islands.

“Barr bragged in his 2001 interview that he had found a way to get the federal forces ‘down there and then play it by ear’ without having to declare martial law.”

The authors note that he said in the same interview that he could, similarly, deploy military forces abroad—without Congressional approval—by, in the authors’ words, “changing the facts on the ground.”

The implications of that view are rather harrowing, don’t you think?

But it gets worse.

In fact, as the authors describe in a subsequent article, Barr’s use of the Virgin Islands situation was based on historical revisionism: in 1989, the governor of the Virgin Islands had requested military help—entirely the opposite of the Portland situation.

That episode and California governor Pete Wilson’s request for federal assistance to control the rioting following the beating of Rodney King in 1992 are the only recent instances when the Insurrection Act was invoked—and both times were at the request of the governors involved.

And, the authors note, “the only modern precedents in which governors’ consent were overridden was under a section of the Insurrection Act purposefully established to implement the Fourteenth Amendment guarantee to equal protection.”  [Used during the Reconstruction and Civil Rights eras.]

So Barr’s slender legal reed—based on a false revision of the historical record—snaps in two. You can understand that invoking the Insurrection Act would not be deemed a wise political move so close to the election. Better to weasel around it.

In the Portland mess, the President signed an executive order that directed federal agencies to send personnel to protect monuments, statues, and federal property.

The Department of Homeland Security,  now headed by an Acting Security, a former lobbyist with no relevant credentials,  then formed “rapid deployment teams” that consist of officers from Customs and Border Protection, the Transportation Security Administration, the Coast Guard, and Immigration and Customs Enforcement to support the Federal Protective Service, which is responsible for protecting public property.

Portland state and local officials, the US attorney, and the ACLU are filing lawsuits, and other mayors, such as Chicago’s Lori Lightfoot, have said they will fight these unwanted incursions with whatever means they have.

But Washington also claims that the Homeland Security Act of 2002 permits the Department’s Acting Secretary, Chad Wolf, to deputize others to help the Federal Protective Service.

Such newly minted, untrained agents of the law can be armed, make warrantless arrests, and conduct investigations “on and off the property in question,” notes The New York Times.

Garrett Graff, a historian who’s been studying the Department of Homeland Security (DHS), told the Times:

“An interpretation of that authority so broadly seems to undermine all the other careful checks and balances on DHS’s power because the officers’ power is effectively limitless and all encompassing.”

And does that give you chills?

We talk a lot about this administration’s breaking norms. Here’s another. Prior DHS officials, the Times reports, said the agency would “normally only dispatch agents to assist with local incidents if the state or municipal governments asked for help and deputized that responsibility.

“In Portland, local leaders have done the opposite.”

What happens now? As is often the case with the Trump administration’s moves—usually with Barr at the helm—the damage proceeds while the parties wrangle in court. Meanwhile, this lawless President, tanking in the polls, bored and helpless to seek remedies for the pandemic that is destroying lives, livelihoods, and our economy—is playing his “Law and Order” card to the hilt.

Show enough graffiti on government buildings, he seems to think, and people will be so disgusted or frightened that they’ll forget the enormous threats they’re facing every day due to his ineptitude. Sure, that should get the suburban women into the President’s camp.

Or will it? What about the Wall of Moms in Portland (pictured above) who are bravely covering their faces with shields and their heads with helmets and placing themselves, arms locked together, between the peaceful protesters and the armed federal officers?

Yes, there will be more violence; all the local and state officials are in agreement that things were de-escalating until these deputized makers of mayhem arrived on the scene.

Watch the video of a former Navy officer, his shirt emblazoned with the word “Navy,” mistakenly thinking he could engage them in conversation to find out what their goals were. They beat him and sprayed him and broke his arm.

But isn’t that the goal? Get people so angry that they begin to side with the disrupters? The crowds have grown substantially since this federal “action” began.

I have written before about Attorney General Barr and the damage he’s wrought. In the past, I’ve used rhyme and hyphenated his name, my little tricks to myself to cut him down to size.

But this time the horror defies rhyme. He can bend the law any way he chooses. He has unleashed fascistic forces onto American streets. I no longer think that word is excessive.

It is time to impeach, disbar, or otherwise end his reign of continual harm to our nation—employing his despicable misuse of the law for nefarious ends that move us further and further away from our democratic ideals.

Annie

30 thoughts on “Barr’s Army: The Slender Legal Reed for Overtaking American Cities

  1. As a lawyer, I believe in the rule of law. I believe in our system of government. I believe that most people who go into a civil or public service position begin with good intentions.

    I’m having to relook and revise all that I was taught and believed in nearly 20 years of working in and upholding our legal system.

    This is just revolting and I don’t mean your post. This situation makes me despair for our country and the good people in it. This situation makes me fear for my black husband and my brown boys.

    For once, I can’t find the silver lining.

    Liked by 3 people

    1. The silver lining comes after November. That Wall of Moms probably doesn’t include many people with your legal training and experience, but they—along with all the young people, as diverse as we’ve ever seen—are showing us the better America that lies ahead.

      I’m sorry my post was so depressing. People see trump as the worst of it, but I’ve long felt Barr is in some ways a greater danger.

      Liked by 1 person

      1. Don’t apologize, it’s the truth and I agree, Barr is a scary character. I really hope we have an epic turnout in November but I’m also meeting more and more Trump supporters, which also freaks me out.

        Liked by 1 person

    1. But he’s not smart. That’s why I find Barr so dangerous. Somebody had to tell the totally unqualified Acting Homeland Security guy what to do to create this mayhem. I’m guessing it was the same guy who put federal troops in front of the White House for trump’s photo op.

      Liked by 1 person

  2. It’s a nest of nasty narcissists, Barr right in there with the rest of them. I’ve been disgusted by his behavior for some time. I don’t know how Barr and his cronies can sleep at night Certainly they have robbed me of my peace of mind and that’s the very least of the damage I see. My goal is to see that the lot of them are ousted come November. I hope you’re right that the promising signs are out there — the reasoned souls, the science advocates, the moms, the youth, the diverse thinkers and doers, the Lincoln Project people, the governors, the mayors who oppose the foolish governors . . . Count me in. We have work to do.

    Liked by 2 people

  3. For years I taught Government classes and arrogantly assured kids that in our system a tyrant could not gain power. Too many checks and balances. I was wrong. You want to know what it was like to live in Germany in 1933 and watch a democracy slowly disintegrate? Look around you.

    Liked by 2 people

    1. Joseph, I have been very careful not to throw around the word “fascistic.” Unfortunately, this takeover of American cities makes me feel we’re now there.
      Do you hear gathering objections from the Republicans? I guess that’s too much to hope for…

      Liked by 1 person

      1. I see where they gassed the mayor yesterday. What possible solution is to this except getting all of the current administration out of office ??? Just an impossible situation when those making the decisions are power-hungry children whose minds didn’t mature with their bodies.

        Liked by 1 person

  4. Judy, legal expert Neil Katyal mentioned a few points in a Lawrence O’Donnell appearance I just saw on video: local violence is a local/state issue—not federal; the fact that DHS has acting secretary at helm —not confirmed by Congress—raises questions; and the rationale keeps changing—first it was protecting federal buildings; now it’s crime…
    Unfortunately, the Homeland Security Act is so broadly drawn as to allow far too much. We have to hope public outcry to our elected officials matters.

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  5. As a doctoral student of policing, this development has rang alarm bells for me this week. One of the basic tenets of British policing is that we police by consent, and moreover that we are policed by the citizens who live locally amongst us. The idea of officers (unidentifiable) being shipped in in camo gear with little or no local input in anathema to me. Grim times.

    Liked by 1 person

    1. It was the “policing by consent” and the local emphasis that drew me to the report you wrote and made me want to reblog it. They’re such basic, important, and sensible approaches that they’re surely worth our emulating in the US.
      Grim times, indeed. Just when we think we’ve hit rock bottom…

      Like

  6. I do have to admit enjoying the irony of those of the left wringing their hands about federal power being exercised over local authorities. Those of us who have been concerned for some time about the states becoming little more than local branches of the Federal government should appreciate the company, I suppose.

    I guess we are left to wonder if the Feds should simply allow the Federal courthouse and other offices there to be burned to the ground by organized anarchists. It is my understanding that this is the Federal mission, to protect Federal property. As much as I dislike a heavyhanded exercise of Federal power, I dislike rule-by-mob even more. Perhaps it would have been a better idea to give the locals another choice – undertake to protect Federal property themselves and agree to pay to replace it if they fail.

    As someone who lives in the relatively quiet, orderly midwest, I do not understand the mindset of allowing mobs to destroy the hard work of generations of people.

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    1. There are ways that trained people can deal with looters without tear-gassing innocent people, making warrantless arrests, and dragging people walking home from demonstrations into unmarked vans without identifying who they are or why the individuals are being arrested.
      I am offended by your enjoying the irony, JP. There’s nothing I see that’s enjoyable here. This has been a gross exaggeration of predominantly peaceful protests that could and should have been handled locally and have been worsened by these untrained “agents” who are probably frightened because they’re so ill-prepared. Tear-gassing the mayor? Tear-gassing moms protecting innocent demonstrators? There are bad actors; there are no mobs. This is Trump playing his last card—
      pretending things are out of control when they’re not
      And not one Republican says a word. This is how
      fascism takes over a country.

      Like

      1. I get that whack jobs are not above false flag hoaxes, and don’t doubt that it happened. But thousands of people are not surrounding Federal buildings there and shooting mortar-style fireworks at Federal buildings? These affairs are not getting violent late in the evenings with people doing their best to cause damage? The people in charge of that Federal buildings are wrong to defend it against mobs? There is no question that Federal law enforcement authorities are authorized to protect Federal property. I don’t care who is setting the fires, the choice is to pull out and let the buildings burn and sending enough help to stop the damage to Federal property. I don’t like the second choice but the first is unthinkable.

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      2. The problem is that neither of us is there and virtually the whole of media has jettisoned even the pretense of straight reporting in favor of advocacy. You and I cannot even agree on what’s happening. My instinct says that the truth is somewhere between- that there are peaceful protests part of the time and some hard core anarchy as well. And a proper response depends upon what is actually happening. Hopefully we agree that people have a right to peaceful protest but not to engage in wanton destruction.

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      3. We agree on your “hopefully.” The question is what is the best way to maximize the former and minimize the latter? As the crowds have grown exponentially since the unidentified men in camouflage have arrived, it seems to me they’ve done more harm than good.
        Why are all the previous directors of DHS opposed to this move? Why are the agents wearing camouflage, which is designed to help the military blend into their environment? Too much here makes no sense—unless chaos is the goal.

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    2. The federal government has every right and responsibility to protect federal property. The issue is HOW and WHO and WHERE. Surrounding a federal building is one thing. Marching into the streets and teargassing and firing bullets at citizens who are no where near the building is something else.
      Wearing appropriate clothing and clear personal and agency identification to demonstrate the armed force is a LEGAL armed force is one thing. Wearing camo , military gear in a city (are you trying to blend in with the city building?) is an overt and visible statement that his is a paramilitary force, not an official one.
      Protecting a person from violence is one thing Beating an unarmed man just standing there is something else. Teargassing moms and others who are simply peacefully demonstrating is something else. Or are you suggesting the moms were a violent force bent on burning down a federal building.
      This violence against working people has a LONG history in the USA. In the south for over 100 years. Early in the 20th century federal troops were used to destroy unions. In the 1960s government violence was used against civil rights marchers and protesters outside the 1968 convention in Chicago. Kent State.
      For some reason, the same folks that say they believe in the First Amendment often agree with the violence against those who are simply exercising their First Amendment rights. So, that rings hollow.
      It is a fact of history that a people that tolerate a government that uses violence against minorities , foreigners and “the other”, eventually see that violence justified against people who “look like them”.
      It is also a fact of history that “law and order” leaders ignore the law and use violence to quell dissent. It is happening again and no one should be surprised.

      Like

  7. AND, in addition to all of that, the the real Trump objectives have nothing to do with protection of government buildings.

    The Trump objectives are:

    1. Distract from the his corona virus debacle and related economic catastrophe.
    2. Excite the Trump base of supporters
    3. Stir up liberal anger to provide “entertainment” material for right wing commentators.

    4. If there is increased violence, great! Objectives 1-3 are amplified.
    5. If the courts limit the administration action. Great! Weak courts, that need to be weeded out in the second Trump term.

    Liked by 1 person

  8. Indeed, Allan—all points right on.

    But he/they must not get away with this! Every time they do something outrageous and the Republicans remain silent, they are emboldened to go further. We must hope this isn’t a dry run for his actions following a loss on November 3.

    Like

  9. Annie, thank you so much for this needed post. Not only is Trump a narcissist, a sociopath, and evil, but also his Attorney General is his accomplice, or perhaps, leader. I especially like you title of Barr’s army. Excellent work!

    Liked by 1 person

    1. Thanks very much, and welcome to annieasksyou. I’m delighted we’ve connected and look forward to reading your posts—I see a new one just appeared.

      I posted a piece today on “Fighting Our ‘What If Trump Won’t Leave?’ Paranoia” that may also interest you.

      Cheers,
      Annie

      Like

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