Why are Portland Protesters being taken into Federal custody?

Federal Marshals in front of the Portland Federal courthouse building

Since federal LEOs were out in force last night, and repeatedly bull-rushed protesters with no warning, while armed with m-4 carbines, here’s a breakdown of legal grounds for these actions. Bad news is the answers are in this thing also known as Executive Order 13933:

Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence

This is in most ways exactly the executive order you’d expect of the president. Section 1 leads off by talking about domestic tranquility, life liberty and property, the Intro Gov Class classics. and then launches into some real Grandpa At Thanksgiving And He’s Drunk territory. The president provides a right-wing-news cliffnotes:

“sustained assault on the life and property of civilians, law enforcement officers, government property, and revered American monuments such as the Lincoln Memorial.”

Interesting to lead with that one so I looked it up: The phrase “Y’all not tired yet?” was spray painted near the steps of the Lincoln Memorial on May 30th. Truly, the bedrock of our democracy crumbles… Oh Noes, etc. But let’s continue. So someone tagged some steps. But who?

“… rioters, arsonists, and left-wing extremists who have carried out and supported these acts… explicitly identified… with ideologies — such as Marxism — that call for the destruction of the United States system of government.

I think we’re tagged in this pic.

“Anarchists and left-wing extremists have sought to advance a fringe ideology that paints the United States of America as fundamentally unjust and have sought to impose that ideology on Americans through violence and mob intimidation.”

Ok- so the stakes are existential and dire, and the only reason that someone would fuck up a statue is cuz they want to do a mob rule, a mob rule that will decree that perhaps Black Lives Matter. So then we get to the good stuff: In addition to all the riots, apparently SO many people are being killed. By riots. Let’s repeat for the back, it is not the police that are doing the violence and the killing of unarmed civilians it was the protesters this whole time. Things the anarcho-marxist statue-dislikers have done according to POTUS:

“killed and assaulted government officers as well as business owners defending their property” “innocent citizens also have been harmed and killed.”

And CHAZ did anarchy. Plus I guess a ☭ got painted. Now the phrasing is interesting, and curiously vague: a lot of the specifics might actually describe right-wing vandalism and even violence considering the well documented evidence of far right anti state groups using the protests as a cover for accelerationist violence. This is never brought up as a possibility. There’s a long paragraph giving notes on how the kids these days don’t appreciate history, but mainly Grandpa is cranky.

“Recently, an influential activist for one movement that has been prominent in setting the agenda for demonstrations in recent weeks declared that many existing religious depictions of Jesus and the Holy Family should be purged from our places of worship.”

Who said this? References and citations would help this whole argument. but then that is the point of an executive order. It is just the ‘because I said so’ of the law. I dunno man. Vague. The rest of this bit is gramps mad that there isn’t more Law, also Order. Mobs are scary. Someone Should Do Something. summed up: “State and local public officials’ abdication of their law enforcement responsibilities in deference to this violent assault must end.”

So what’s gramps gonna do? “Sec. 2. Policy” lays it out, with several iterations of “It is the policy of the United States to prosecute to the fullest extent permitted under Federal law, and as appropriate,”.

Here’s the list:

  1. “any person or any entity that destroys, damages, vandalizes, or desecrates a monument, memorial, or statue within the United States or otherwise vandalizes government property.” Notably, doesn’t say the statues have to be government property, let alone federal. Then there’s a bunch of references to US code, mostly regarding state and federal property. but the assertion of authority doesn’t specify that it has to be. So that’s cool.

Now we get to the reasons that ostensibly liberal city leaders might be in a bit of a bind:

  1. “withhold Federal support tied to public spaces from State and local governments that have failed to protect public monuments, memorials, and statues from destruction or vandalism.”

Again, no mention of whose monuments, memorials, and statues. If they’re in public, they are now under the federal government’s protection. Even if they’re on private property, like the Washington statue that is no longer up on NE Sandy. IANAL, but none of this sounds like it would hold up to a ton of legal scrutiny. That might not even be the point. But for now, the president is threatening state and municipal funding. And it’s not clear that the feds even need a city’s permission to operate. So if you’re asking yourself, “Did Donald Trump nationalize every statue or monument in the United States?” the answer is “Kinda seems that way.” @StagulaRasa might be Federally Protected for all the good it did them.

Now this is a sloppy mess: we don’t know if the city had to approve federal action to maintain funding, or if this is going on above the heads of local elected officials, which would probably violate state Sanctuary laws. There’s no processes outlined.

Now, on to “Sec. 3. Enforcing Laws Prohibiting the Desecration of Public Monuments, the Vandalism of Government Property, and Recent Acts of Violence.” And yes, the dangling modifier leaves Laws Prohibiting Recent Acts Of Violence. (time machine noises)

“The Attorney General shall prioritize within the Department of Justice the investigation and prosecution of matters described in subsections 2(a), (b), and (c ) of this order.”

So Bill Barr will now be prioritizing all the prosecutey bits from the last section. If you’ve ever had a dumb boss who yells at you to “make this your top priority,” that’s what that part just did, to the entire AG’s office.

AG “shall take all appropriate enforcement action against individuals and organizations found to have violated Federal law through these investigations.”

The order is so vague that LEOs might be pressing federal charges, regardless of if federal property is involved. This would almost certainly be super illegal, but things are moving fast, last night our reporter was shoved by sprinting dudes in camo with M-4s, and our national institutions are rotten from the top down so ¯\_(ツ)_/¯

On that note, I’m just now hearing from @tuckwoodstock that folks arrested near JC by feds are being given federal charges, 8pm curfews, being banned from the JC area, and prosecutors have been requesting GPS tracking, which judges have been denying.

Anywho, back to the clusterfuck enabling this clusterfuck: 3b has a bunch of stuff about the AG providing information to local law enforcement — not sure how this would interface with OR’s non-cooperation laws in practice: seems like gramps is mad about Sanctuary Laws. And then there’s this gem, As far as intel-sharing, all statues are federally protected:

“in connection with their investigations or prosecutions for the desecration of monuments, memorials, and statues, regardless of whether such structures are situated on Federal property.”

Moving along: “Sec. 4. Limiting Federal Grants for Jurisdictions and Law Enforcement Agencies that Permit the Desecration of Monuments, Memorials, or Statues.” Really be interesting if there’s no legal definition of desecration that word’s getting used a lot. But in this context the federal government will fuck your funding if someone tears down a statue and you don’t act appropriately upset, and that’s it. That’s this section of an executive order signed by the president.

Section 5 in a nutshell: Remember how I wondered what this meant to the powers of municipal government? Never mind, cities don’t get a say, the Federal Government will send in federal LEOs if the Federal Government damn well feels like it. No local consult necessary. But I guess this only lasts for 6 months, unless the president decides to order it again.

Section 6 seems to be the “cover your ass” section — this order doesn’t curtail the authority of any executive agency (presumably federal) and doesn’t conflict with the Budget Office. This might be construed as preventing any additional oversight: It’s something the president is ordering, but not in a way that could be construed as controlling the purse strings, even though a whole bunch of it is definitely about controlling the purse strings. In addition section c: order doesn’t create rights or benefits for anybody. In case you read it and thought “wow, the federal government is sure creating, rather than infringing on, some rights!” and sec. d: there’s prosecutorial discretion. it’d be illegal if there weren’t, but that’s nice

So this has been a hoot. Takeaway: per this order, Feds don’t need approval or consultation with the city, and seem to have broad law enforcement powers around MAYBE LITERALLY ALL STATUES. The jurisdiction is VERY ill defined regarding federal law enforcement. They can maybe go anywhere they think a statue is in danger, and can do… maybe whatever? This is all super shoddy, legally, and if local government challenged it, it might all fall apart. But that’d rely on local gov’t challenging, and the courts doing a justice thing.

tl;dr- the president ordered huge expansions of federal jurisdiction, in a power-grabby way, at a time when local & state governments might happily go along with it, because it’ll fuck with the protesters, who’re chanting things like “fuck Ted Wheeler” at mayors.

Press collective in PDX. A double-decker shitpost sandwich on wry whole-grain journalism. Photos and commentary on twitter.com/45thabsurdist