A spate of irrational federal actions on Trump’s behalf have played out in recent months. While many rightly mocked the faux indignation of Chad Wolf, the acting secretary of homeland security, as he toured walls of graffiti in Portland, the actions of the Department of Homeland Security were more serious. Peaceful protesters were assaulted, detained and taken in unmarked vehicles to undisclosed locations. The scenes were reminiscent of 1930s dictatorships.
Portland officials — including the mayor, who was among a group tear-gassed on Wednesday — have roundly criticized these actions. The state attorney general has sued the federal government, alleging that the Trump administration has violated the civil rights of Oregonians. The lawsuit criticizes federal agents’ heavy-handed tactics. One protester, whose statement is included in the lawsuit, said: “Without warning, men in green military fatigues and adorned with generic ‘police’ patches, jumped out of an unmarked minivan and approached me. I did not know whether the men were police or far-right extremists, who, in my experience, frequently don military-like outfits and harass left-leaning protesters in Portland. My first thought was to run. I made it about a half-block before I realized there would be no escape from them.”
We will not wait for a lawsuit to be filed. Should Trump send federal agents who engage in the same illegal vigilante activities, unlawfully assaulting and kidnapping people, they will face criminal charges from our offices. The authority of city officials to prosecute federal law enforcement officials is clear. While 28 U.S. Code § 1442 provides that federal law enforcement officers may remove such charges to federal court in limited circumstances, it does not stop the local prosecution. We do not believe that the agents in Portland came close to meeting the standard required to prevent local prosecution, and officers exhibiting such behavior in our cities are similarly unlikely to meet this threshold.
Local authorities have the power to initiate an arrest and prosecution. Under our authority to defer prosecutions, we could hold off on proceeding until after the November election. Obtaining cooperation and evidence from federal authorities would presumably revert to pre-Trump norms under a new administration. In the meantime, local prosecutors would have the authority to subpoena individuals and make them appear before a grand jury. Finally, these crimes would be offenses against the residents of our respective states — not federal offenses — and, therefore, the president would have no capacity to pardon those we might prosecute. All of this is to say, we will not stand idly by while the president illegally turns loose paramilitary forces to commit criminal acts and violate the constitutional rights of innocent Americans for the purpose of energizing his base and improving his poll numbers.
Although the president claims to be a champion of the 10th Amendment, his administration has treaded alarmingly on the rights of states and localities. His first attorney general spent much time saber-rattling about states that had protected immigrants and legalized marijuana. Under Attorney General William P. Barr, the Justice Department has spent taxpayer dollars trying to prevent local jurisdictions from opening facilities that would reduce overdose deaths. And Barr has dedicated many speeches to attacking progressive prosecutors who were duly elected in major American cities.
The “LAW & ORDER” president is not interested in restoring law and order. He has called Baltimore “rat-infested.” He has said that Chicago is “embarrassing to us as a nation.” He has been similarly disparaging about Philadelphia. Our cities have their challenges, but those issues will not be resolved by a Trump Twitter tirade. If the president were truly interested in supporting underserved U.S. cities, he would invest federal dollars in reducing racial disparities in health, education and employment. Instead, he focuses on detaining those who protest in support of black lives, efforts ultimately likely to increase racial disparities in arrests.
Our parents and grandparents fought in foreign wars and marched on American streets to protect our civil and constitutional rights. We will not allow federal agents to criminally attack citizens in our cities, acting under the illusory authority of a conceited demagogue who prioritizes his self-interest above the national interest. We warn the president now not to break the law — or to stay out of our cities.