In Vladeck’s estimation, the crackdown in Portland was “lawful, but awful”—well within the government’s rights, as raucous elements within the mostly peaceful protesters vandalized a federal courthouse and lit fires within a fenced-in area surrounding the building, but also outside the bounds of what you’d normally expect from law enforcement steeped in due process and de-escalation tactics. And he sees it as part of a concerning trend in which the federal government primarily asks whether it can legally intervene with force, rather than whether it should.
He also has questions about why the Trump administration used CBP officers—a set of armed federal agents whose main responsibilities and training lies elsewhere—as the first line of enforcement. “We don’t know what the answer is,” he says, “but almost all the answers are bad! And almost all of the answers ought to raise serious questions.”
When he pulls way back, the historical precedent unsettles him as well. The federal government has a long history of intervening in American cities, dating back to unrest in the 1790s. But this looked different to him. Based on both the choice not to deploy agents appropriately trained for the setting and the extent to which legal norms were set aside, he had a conclusion: The president did something new here, not to solve a problem, but “so that he could get the visual he wanted.”
To unpack the legal questions tied up in all of this—and better understand what happens after Portland—on Thursday, Vladeck spoke to POLITICO. A transcript of the conversation is below, edited for length and clarity.
Zack Stanton: The Trump administration has been using federal forces to basically play a law enforcement-type role in response to protests in Portland. Explain that: Where does the authority to do that come from?
Steve Vladeck: Well, the federal government has well-established constitutional and statutory authority to enforce federal law. That’s not controversial. “Federal law” itself has gotten much broader as a category over time. And in addition to protecting federal property and federal officers, there are all kinds of federal crimes today that don’t require a nexus to federal property [for the federal government to be involved]. Drug crimes are a good example; crimes involving interstate commerce, wire fraud, mail fraud—things like that.
So, the Portland conversation starts from a core of settled federal authority. The real fight is over just how far that authority goes, and whether federal agents crossed that line. The pretext for some of the federal deployments was damage to a federal courthouse in Portland. I think everyone agrees that the federal government has the power to protect courthouses and arrest those who commit offenses against them; the question is whether the response we saw in Portland was grossly disproportionate, given that the underlying crimes were principally, though not exclusively, property crimes against a federal building.
We go back to the notion of “lawful, but awful.” The government may actually have the legal authority to do a thing, but that doesn’t mean it’s a good idea. And that’s where I end up with Portland. I have no doubt that there were individual episodes where the government crossed the line—that seems inevitable. I have just as little doubt that the core of the federal response was at least pegged to appropriate authority. But we ought to be able to say: first, there is a distinction between those two things, and second, that whether there is legal authority ought not to be the be-all end-all of whether the federal government should have done it. I don’t have any great solution for how we get back to a point where we don’t start and end every conversation about a policy with whether it’s strictly legal.
Stanton: In terms of the invocation of national security law, how unusual is this situation?
Vladeck: What’s unusual about Portland is the mechanism the administration is using. It’s not at all unusual throughout American history for the federal government to have to send in troops when there is significant and sustained disorder in American cities. A statute has been on the books in one way, shape or form since 1792 that allows the government to do that, and there are even examples of doing that over the objections of local authorities. But usually, it’s the National Guard or the Army, because they’re trained in how to restore order and how to do riot control. They’re not there to exacerbate the situation. They’re not there for a photo opportunity.
What frustrates me about Portland is that the president, I think, quite consciously eschewed that historical precedent in favor of a plausible-but-novel construction of the Department of Homeland Security’s authority so that he could get the visual he wanted. If the goal was just a photo op, then he got the photos—and you don’t have to take my word for it: They’ve already churned out campaign ads relying upon some of this footage. But the photo op should not be the goal. Photo ops should not be the end of why you’re sending in these particular units dressed in that particular way to do this particular thing.
Stanton: Generally, photo ops are the means to an end, not the end itself, right?
Vladeck: I would never suggest that Trump is the first president to try to manipulate the visuals. But the whole federal response to Portland smacks of nothing mattering other than the ability to spin this as vindicating his narrative. You have lots of reasons to worry that both the core of this authority may have been abused, and that the officers on the ground were actually going well past that core authority.
Stanton: We’ve seen videos of federal officers in Portland using unmarked minivans, pulling up to pedestrians far away from the courthouse, and detaining them. How broad is the idea of “reasonable suspicion” here?
Vladeck: One of the things that has come to light from all the public attention is just how much authority law enforcement officers have when they’re out in that context—when they’re in some kind of riot-control or crowd-control setting. Reasonable suspicion is only the standard to stop an individual. If they actually want to arrest someone, they need probable cause. Probable cause is supposed to be a rigorous standard that requires not just some reason to believe there was a crime, but individualized suspicion that the person in front of you was responsible for it.
With Portland, there are three different layers of legal issues. There’s the structural question of why the federal government is there in the first place; there’s the not-Portland-specific question of whether law enforcement officers should be out on the streets with no identification, wearing camouflage gear, with no obvious way to tell they’re law enforcement; and there’s the third problem, which is: Even if you surmount those first two hurdles, were the actual individual arrests made supported by probable cause?
What’s messy about this conversation is that people focus on the parts of the story that vindicate their priors. Critics of the Trump administration point to the most extreme examples of abuse and say, ‘That can’t happen.’ Acting DHS Secretary Chad Wolf says, ‘Look at the damage to the federal courthouse. Are you really saying we lack the power to respond to that?’ And they’re both right. The problem is we’ve gotten so far away from having nuanced discussions in our public discourse that we can’t understand a world in which they’re both right. We’re so preconditioned to think that something is either totally fine or totally autocratic. And in that process, we actually miss the point that the same general episode could have elements of both.
Stanton: You mentioned the unusual use of DHS in Portland. Why was DHS used here, rather than the Army or National Guard?
Vladeck: I’m not the person to answer that, but I have my suspicions. Look at it this way: If I were thinking about the body of federal officers best situated to respond to this kind of situation, Customs and Border Protection is probably at the bottom of the list. It’s not their job. It’s not their training. It is not something that agency is well set up for. So it at least feeds the suspicion that DHS was chosen not because of any belief it would be most effective, but for other purposes. Maybe because it was thought the DHS leadership—none of which is Senate-confirmed—would be more pliable. Maybe it was because the very fact that the CBP officers aren’t trained in this was seen as a feature and not a bug. We don’t know what the answer is, but almost all the answers are bad! And almost all of the answers ought to raise serious questions.
Stanton: It seems notable that DHS, as you mentioned, is without a congressionally approved head—
Vladeck: For almost 500 days, yeah. This is the longest vacancy in the history of the Cabinet.
Stanton: How does a department realistically function for that long without a congressionally approved leader? How does that affect the culture within DHS?
Vladeck: I don’t think the vacancy itself affects the culture; it’s the way the vacancy was created. We ought not to lose sight of the preposterous way that Kirstjen Nielsen resigned in the first place, when she had to unresign for three days so they could fire the person who would have otherwise become acting secretary. But also, Trump has publicly said he prefers acting secretaries because they give him “more flexibility.” What kind of flexibility? Well, flexibility to do things that a Senate-confirmed official—even though they serve at the pleasure of the president—would not be inclined to do. And that’s the problem here. It’s not the vacancy itself, because there are lots of vacancies across the government; it’s the conscious, deliberate effort to perpetuate the vacancy in order to give the president more “flexibility.”
Stanton: It feels like there’s some conflating of the realms of national security and democratic protests. Are there risks here in terms of national security being politicized, or is this a topic that is sort of inherently political?
Vladeck: It’s always political. The risk is broadening the umbrella of what we treat as national security and homeland security. For example, we know from this leaked memo that the DHS Office of Intelligence and Analysis was treating threats against monuments and statues as homeland security threats. We’re depriving these terms of meaning. If everything is “homeland security” and everything is “national security,” then nothing is. Even if we’re not troubled by the notion that all of our special national security authorities can be deployed against those who are defacing a statue—which to me seems like a bit of a waste of national security resources—that’s a problem also insofar as those resources not being used for other things. Even if we don’t mind the book being thrown at the Great Statue Defacers of 2020, the federal government only has so many resources. And if they’re doing that, what aren’t they doing?
It just seems to me that defending monuments and statues—defending inanimate pieces of rock—is relatively far down the totem pole in an era when we have an unprecedented global health crisis, real concerns about cyberattacks and real concerns about election security, which is also part of DHS’ bailiwick.
Stanton: DHS and Border Patrol have become political hot potatoes over the last few years. How does that perception—them being seen as inherently partisan institutions—affect the way they approach their roles?
Vladeck: I think part of that is because immigration has always been a very sensitive topic of American public policy, but it didn’t neatly sort people into partisan camps really until the last decade or so. President George W. Bush, one of his real goals was comprehensive immigration reform—and that wasn’t that long ago. Part of the sort of partisan focus on DHS, CBP and ICE has been a direct outgrowth of the polarization of debates over immigration policy, where there are now really only two general positions on immigration policy: You’re either for it, or you’re against it. And I actually think immigration was fairly late to the partisan polarization conversation, compared to other policy ideas, like universal health care.
This is a consequence: The instruments of immigration policy become the frontlines of the debate, and “Abolish ICE” becomes this catchphrase among progressives, and “Secure the border” becomes the unifying rallying cry of conservatives. I think that’s yet another symptom of the departure of nuance. We’re two tribes. And the more that we’re two tribes, the more that we’re going to look at every single policy conversation as just another front in the tribal war.
Stanton: On Wednesday, Oregon Gov. Kate Brown announced that she and Vice President Mike Pence reached an agreement to withdraw federal forces from Portland, pending a few conditions. But there continue to be reports of federal forces being deployed to other cities throughout the country. How should we think of this? Is Portland basically the start of a trend? What comes next?
Vladeck: So, I don’t know if Portland is the start of a trend. And again, I think the details matter. Deploying “federal officers” to other cities? Well, just about every major city already has a whole bunch of federal officers who permanently work there because there’s a federal law enforcement presence in just about every major city in the United States. The question is not, “Who’s there?” The question is, “What are they doing?” And if all you’re doing is, for instance, giving a local police force that has requested it more investigative personnel, I don’t think that’s worth batting an eye. But that wasn’t Portland.
The question is whether any of these subsequent deployments are going to look like Portland, where you have federal officers, who might even be wrong-footed in the first place, performing what really looks like a local role by not just supplementing local authority, not just strictly investigating federal crimes, but actually going out into the streets and confronting protesters. We saw that in D.C. at the beginning of June, but there were lots of reasons to believe D.C. wasn’t necessarily a precedent, because of the federal government’s unique authority there.
The real question now is, is there going to be another Portland? At least so far, I haven’t seen anything to suggest that there is. But it’s only July, and the conspiracy theorists among us might rightly worry that this is going to get ratcheted up as we get closer to November.
Stanton: Pulling from your background in security law, what about this national conversation has surprised you?
Vladeck: I’m a bit surprised at how quiet conventional defenders of federalism and states’ rights have been about the federal response in Portland. I think a grand total of two Republican senators have publicly voiced concerns—Rand Paul and Mitt Romney. That leaves 51 who are perfectly happy to hug the flag with states’ rights whenever it suits them, and yet all of a sudden, have nothing to say. Not for the first time in the Trump administration, I am surprised at the silence of those I used to think of as principled conservatives when the president acts in a way that is completely not conservative. And it just illustrates what is a very depressing point: Trumpism is generally more important than conservatism to the contemporary Republican Party.
I’m not a conservative, but I understand conservatism and I have a lot of sympathy for conservatism. Trumpism is a very different beast, and I’m constantly surprised—which, of course, suggests that maybe I shouldn’t be surprised—at how silent folks who hold themselves out as true conservatives are about the surrender of their party to the Trumpist tendencies that we’re seeing. It seems to me that it ought to be easy to stand on principle when it comes to this president.
It’s far too easy for the president’s supporters to point to people like me and say, “You’re fine with rioting? You don’t have any problem with property damage?” I think that’s a distraction, because it assumes that any federal response is per se legitimate if any part of it is legitimate. We have to be comfortable having a conversation where we accept that some percentage of what the federal government is doing is appropriate, while still being willing to concede that a significant percentage is not. It should not be hard to do both.