Trump is Using Federal Law Enforcement Officers to Provoke an “Insurrection” Justifying the Deployment of the Military into American Cities

Donald Trump is not sending federal law enforcement officers into American cities merely to bolster his reputation as the “law and order” president for purposes of his re-election campaign. His plan is much more ambitious and nefarious than that.

The deployment of the officers into Portland and other American cities is a deliberate attempt to provoke an increase in civil disturbance that will serve as a pretext for invoking the federal Insurrection Act and dispatching the military to quell the “insurrection.” The federal law enforcement officers are not there to prevent damage to federal property. They are there to trigger as much violence and destruction of property as possible.

Unfortunately, the tendency by the mainstream press to underestimate the authoritarian impulses and general malevolence of the president is playing itself out again. A recent opinion by Greg Sargent of the Washington Post is typical of the reaction from most mainstream journalists. He describes Trump’s “performative authoritarianism” as intended to create an imagery to bolster his faltering campaign, portraying himself to frightened suburban voters as a bulwark against the chaos brought about by Democrats.

Sargent’s analysis is correct — as far as it goes. But Trump’s longer-term goal goes beyond simple fearmongering. He wants to insert federal troops under his command into large cities with Democratic mayors and seize as much control within those cities as he can.

Ultimately, Trump and the brains behind this plan — Attorney General William Barr — would love to declare martial law. Given half a chance, Trump will do so.

Trump will not be satisfied with inserting a few federal law enforcement officers here and there; there simply are not enough of them to do more than light the match that starts the fire. His aim is to use the vast resources of the military to put out that fire. And in the sick mind of Donald Trump, the bigger the conflagration, the better.

Make no mistake about it, the federal law enforcement officers are trying to make matters worse. They have no legal authority to remove peaceful protesters from the streets of Portland. So, why are they doing it? Answer: Because it gives them an opportunity to provoke confrontations with the protesters.

They clearly have been ordered to use hyperaggressive and uneven unlawful tactics. Night after night there is video of the federal law enforcement officers abusing protesters and employing grossly excessive force, leaving the reputations of the agencies that the officers are from in tatters.

So, why are supervisors not telling these officers to curtail such tactics? Answer: Because escalating tensions and instigating violent responses is the mission. The shocking video supports that mission by angering protesters and drawing more of them into the streets, making it more likely that Trump will get the excuse that he is looking for to send in the military.

Time and time again we have failed to listen to Trump when he tells us what he intends to do. Here is what he said on June 1st:

“If a city or state refuses to take the actions necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”

He has been itching to use federal troops to “dominate” the cities ever since.

The Posse Comitatus Act of 1878 prohibits the president from using federal troops to keep the peace within the borders of the 50 states, subject to exceptions. The Posse Comitatus Act was enacted to limit the role of the Army in enforcing Reconstruction Era policies in the former states of the Confederacy — no small irony, given the reason for the protests in Portland and elsewhere.

One of the exceptions is a series of statutes that became known as the Insurrection Act. In 1792, Congress passed a temporary law authorizing the president to call upon the militia “to execute the laws of the union, suppress insurrections and repel invasions.” The law was refined and made permanent in the early 1800’s and has been amended several times since.

The law generally contemplates that federal assistance will be provided upon request of a state governor. It was last used in 1992 in the wake of the Los Angeles riots at the request of the California governor. The language in the act that confers authority on the president to invoke it to suppress an insurrection without the consent of a governor is open to interpretation — and therefore open to abuse.

Trump is not smart enough or familiar enough with the law to come up with a scheme to get federal troops into U.S. cities without the consent of governors. Barr is. In fact, there is evidence that he has been working on the plan for months, to the extent of fabricating a precedent for invocation of the Insurrection Act against the wishes of a governor.

In June, Barr appeared on “Face the Nation” and told Margaret Brennan that the Insurrection Act was used in 1989 to send troops to the Virgin Islands in the aftermath of Hurricane Hugo over the objections of the governor:

“We did it in the Virgin Islands. The governor opposed us at that point, but there was a complete breakdown of law and order. Lives were in danger, and we sent in 82nd Airborne military police, along with U.S. marshals and FBI agents.”

Barr’s account is not accurate. He knows better, because he was the person advising President George H.W. Bush on the use of troops in the Virgin Islands in 1989. The devastation from the hurricane was so severe that communication with the governor could not immediately be established. When it was, the governor said that he could not guarantee the safety of residents in the face of widespread looting and unrest and asked for federal help.

This is from the White House press release dated September 20, 1989:

“The President has authorized the deployment to the U.S. Virgin Islands of such Department of Defense Forces as are necessary, including military police units, to help restore order in the aftermath of Hurricane Hugo. The President’s decision . . . followed a request this afternoon from Governor Farrelly of the U.S. Virgin Islands requesting Federal assistance.”

Sending in federal troops to put down an alleged insurrection is one thing; declaring a national emergency and proclaiming martial law is another. Only a fool, however, believes that Trump, aided and abetted by Barr, would be unwilling to take that additional step if the chance presents itself.

In a 2004 Yale Law Journal article, Stephen Vladeck, now a professor at the University of Texas School of Law, concluded that, although the president has “broad authority to respond to a crisis (that it is his prerogative to determine exists) by declaring martial law and suspending civil authority,” the scope of the president’s power “to declare and impose a state of martial law in an emergency is ill defined.” Vladeck recommended a comprehensive review and clarification of the president’s emergency powers.

In 2019, Elizabeth Gotein, a former Justice Department lawyer and the co-director of the Liberty and National Security Program at the Brennan Center for Justice, wrote a lengthy account of the many horrors that Trump could inflict through misuse of the various emergency powers bestowed on the president. She urged Congress “to shore up the guardrails of liberal democracy” by placing limits on those powers.

The problems identified by Vladek and Gotein have not been fixed. Both of them expressed concern that under current law it would be difficult to control an abuse of emergency powers by the president through the courts. If reliance on good faith implementation by a president is a problem in general, it is a catastrophic flaw when it comes to Trump.

Events on the ground will determine the success of Trump’s plan. Trump will move quickly to deploy the military if the federal law enforcement officers are able to spark a major incident. The level of force that the federal officers are using against large groups of protesters, who are growing steadily more upset with being beaten and gassed, makes it increasingly likely that a federal officer will be seriously injured or killed — the dream scenario for Trump.

And please, do not express shock or surprise at that statement. By now, you should understand the malignancy of Trump’s character, including his sadism and complete lack of regard for the well-being of others.

The mistake people make in assessing and predicting Trump’s behavior comes from extrapolating from their experiences with other, normal people and with normal leaders. Trump is neither a normal person nor a normal leader. He is a dangerously disturbed man.

Hopefully, protesters will not provide Trump with the excuse he is looking for, and exercise restraint. Once troops are in the cities, Trump and Barr would have their noses under the tent and martial law may not be far behind. It is hardly inconceivable that they would use martial law to impede state functions including but not limited to the administration of elections.

Trump sees his chances of getting re-elected fading away and is becoming desperate. And a desperate Trump is a real and direct threat to our democracy. He will have no reluctance to misuse martial law if he sees it as his last best hope of clinging to power.

Retired lawyer, former prosecutor, former social worker, Army vet — former lots of things. Commentary published in Washington Post, Baltimore Sun and elsewhere.

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