Trump’s Federal Police Surge Could Provoke an Election Day Constitutional Crisis

Part of the Series

Voting Wrongs

Courts must end Trump’s paramilitary urban war against Democratic mayors and cities ahead of the November election, voting rights and legal experts tell Truthout, otherwise they leave open the possibility of an unprecedented constitutional crisis buttressed by the president’s personal secret police.

As President Trump prepares an additional “surge” of federal agents into Democratic-led U.S. cities, including Chicago and Albuquerque, after days of dystopian images of unidentified feds brutalizing and kidnapping protesters in Portland, local leaders are balking. State and local officials have filed several lawsuits against Trump’s unprecedented police-state practices in Portland, and other targeted states are gearing up for their own legal fights.

At least four lawsuits have been filed in federal court relating to the feds’ handling of Portland’s protests, which have roiled for more than 60 nights after the Minneapolis police-perpetrated killing of George Floyd.

On Thursday, a federal judge issued a temporary restraining order barring feds from arresting or using physical force against journalists and legal observers in Portland. On Friday, a federal judge in a separate case denied a request by the Oregon attorney general’s office for an order that would have required feds in Portland to identify themselves.

If courts fail to permanently enjoin Trump’s federal police apparatus from being deployed in cities against the will of local officials, legal experts say there remains a chance that Trump could use his newfound personal paramilitary before and after Election Day in a cynical attempt to intimidate and suppress voters at polls — or even to remain in power if he doesn’t accept the election’s results.

Senior Department of Homeland Security (DHS) officials told Politico they “expect the unrest to escalate at least through the November election, and noted that the protection of federal buildings falls squarely within their remit,” based on Trump’s Executive Order on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence, and a 2003 federal statute.

Voting rights experts say that the deployment of federal police in major U.S. cities is enough to potentially suppress in-person voting. But it could be even worse than that, since without clear restrictions from courts, it remains unclear just how far feds could float during voting periods.

“It’s just a highly unusual and very difficult to defend process that’s being used.”

Trump’s federal police are just the latest front in a wider reelection strategy focused on suppressing mail-in voting, intimidating voters, spreading misinformation and undermining the democratic process. Last month, Trump called his campaign’s potential loss of lawsuits related to states’ mail-in ballot procedures the “biggest risk” to his reelection bid.

Not only is Trump enlisting an army of 50,000 poll watchers to intimidate voters of color in his war against the ballot; he’s enlisting secret stormtroopers to possibly to do the same, while also inflaming tensions and renewed uprisings to justify a potential power grab less than 100 days before the election in one of the most nefarious reelection bids of all time.

Can Courts Rein In Trump’s Secret Police?

Unidentified feds’ actions against protesters in Portland — including their use of tear gas, impact munitions and unmarked vehicles to snatch, interrogate and transport protesters to unknown locations without informing them of why they’re being arrested, and then releasing them with no record of arrest — violate First, Fourth and Fifth Amendment protections of speech, press, due process, and against unreasonable searches and seizures.

The 10th Amendment, which determines that powers not delegated to the federal government are reserved to the states, puts “the safety and welfare of the public,” including policing powers, in the hands of the states, not the federal government, according to Michael Greenberger, a law professor and the director of the Center for Health and Homeland Security at the University of Maryland.

“The actions here are so extraordinary that I think they can overcome a claim of qualified immunity.”

Federal forces, including agents from U.S. Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the U.S. Marshals Service and the Federal Protective Service, are operating under the legal authority of a 2003 statute and Trump’s executive order on protecting federal monuments and property but have been patrolling largely nonfederal areas of Portland.

“It’s just a highly unusual and very difficult to defend process that’s being used,” Greenberger told Truthout, as there’s no legal precedent that would support the presence of so many unidentified federal police in U.S. cities without the cooperation of local and state officials and law enforcement.

Nonetheless, while individuals whose rights have been violated could bring successful challenges against federal police, it may be more difficult for states or cities to end or restrict the presence of feds in their jurisdictions because of issues related to their legal standing to do so, Greenberger says.

While Thursday’s temporary restraining order barring feds from using force, threats and dispersal orders against journalists or legal observers is a hopeful sign; Bush-appointed Federal Judge Michael Mosman ruled Friday that Oregon Attorney General Ellen Rosenblum lacked standing to bring a lawsuit on behalf of the state because her office “hadn’t articulated any specific state interest beyond the constitutional rights of individuals.”

During a remote hearing in Oregon’s suit last week, Judge Mosman noted that in earlier cases, “the court has required states to meet the high bar of ‘quasi-sovereign interest’ to sue the federal government.”

Judge Mosman also said that compelling feds to identify themselves might prove too limited to give much solace to would-be protesters. He added that the use of unmarked vehicles by police is commonplace, and couldn’t be used exclusively to conclude that feds were out of line.

“One thing we need to worry about is CBP and ICE being used to intimidate people at the polls.”

Individual plaintiffs may likewise find it difficult to criminally prosecute federal agents for damages, as feds, much like cops, are protected by immunity. Greenberger, however, says that suits brought by individual plaintiffs could still prove successful in enjoining federal police, and that “the actions here are so extraordinary that I think they can overcome a claim of qualified immunity.”

The other legal framework undergirding Trump’s strategy is the 1807 Insurrection Act, which allows such deployments of active-duty military police or federalized National Guards when “the ability to enforce civil and constitutional rights has been abandoned because local law enforcement has no ability to protect people,” Greenberger says.

The Act is an exception to federal law that prevents the military from being involved in civilian law enforcement and has been invoked dozens of times in the country’s history, most recently during the 1992 uprising over the Los Angeles police officers’ beating of Rodney King. Greenberger notes the law does not require that state and local officials invite military deployments.

On July 21, the House of Representatives approved an amendment to the Act that would require the president to consult with Congress before deploying federal troops to U.S. cities. It compels the administration to certify to Congress that local authorities are unable or unwilling to quell violence.

A Test Run for Election Day?

Without a permanent injunction against Trump’s brazen deployments of secret stormtroopers by fall, there remains a chance that he could try to use them to bolster another army: The Republican Party is recruiting 50,000 partisan poll watchers to deploy in key precincts around the country to intimidate voters of color under the guise of protecting against virtually nonexistent “voter fraud.”

In 1981, New Jersey Republicans hired county deputy sheriffs and local police outfitted with revolvers, two-way radios and armbands reading, “National Ballot Security Task Force” to patrol majority Black and Latinx precincts in the state. A New Jersey voter who was turned away from a polling place by a task force member sued, resulting in a 1982 consent decree barring the party from intimidating voters of color and deputizing off-duty police as poll watchers.

“The way a constitutional crisis evolves is through litigation. There are longer interlocutory injunctions that could last until the case is resolved.”

The 2020 presidential election will be the first in nearly 40 years when the Republican National Committee (RNC) won’t be bound by the terms of the 1982 decree. The RNC already is spending millions on a renewed voter suppression scheme involving thousands of poll observers targeting predominantly Black precincts in Philadelphia, for instance, where the Trump campaign is legally challenging not only the state’s mail-in ballot procedures but also a state statute that places limits on who may serve as a poll watcher.

Depending on the state, partisan poll watchers can challenge a voter’s eligibility based on their address, citizenship or even when they registered to vote. Stipulations regarding poll watchers’ qualifications, powers, proximity to polling places, and observation process vary widely depending on state and county election codes.

But Republicans aren’t just looking to deputize off-duty cops as poll watchers again; they’re also looking to recruit former Navy SEALS to do the job. Catherine Engelbrecht, founder of True the Vote, a conservative election monitoring group, laid the plan at a closed-door conference in February: “You get some SEALs in those polls, and they’re going to say, ‘No, no, this is what it says. This is how we’re going to play this show,’” Engelbrecht said, according to a recording obtained by The Intercept.

Add Trump’s federal secret police to the mix, and the picture becomes more than ominous for predominantly Black and Latinx inner-city polling places this fall.

“One thing we need to worry about is CBP and ICE being used to intimidate people at the polls. I’m not predicting it will happen. I’m not saying it will happen. I’m saying that we have to worry about it,” Jason Stanley, a philosophy professor at Yale University and an expert on fascism, recently told Business Insider. “When people encounter law enforcement, they’re much less likely to vote; to participate civically.”

Stanley, author of How Fascism Works: The Politics of Us and Them, cited a study that found probability of voting went down by 8 percent among those who were stopped or questioned by police. He also cited another study that similarly showed communities with the highest rates of police contact were 50 percent less likely to vote.

“This raises the specter of authoritarian practices, and the fear is that Trump may deploy feds if he loses the election.”

Still, with 41 states allowing voters to vote absentee this fall for any reason, if current polling holds, it’s unlikely Trump will be able to suppress enough votes to fight an Electoral College loss. Moreover, law professor Greenberger is confident that by the time of the election, cases will have wended through trial and circuit courts, perhaps even to the Supreme Court, with clear rulings restricting Trump’s police-state practices in some form.

“As these cases are litigated, there will be more concern about this introduction of federal law enforcement officials,” Greenberger says. “The way a constitutional crisis evolves is through litigation and people bringing lawsuits…. There are longer interlocutory injunctions that could last until the case is resolved.”

But a national crisis could also arise after the election, as Trump’s federal deployments raise “the specter of authoritarian practices, and the fear is that Trump may [deploy feds] if he loses the election,” as Greenberger says.

Since in-person votes could skew Republican this year, according to an ABC News/Washington Post poll, and because in-person votes are typically reported first on election night, the initial results on November 3 might favor Trump and cause him to claim victory prematurely.

But as mailed ballots — skewing Democratic, according to the same poll — are counted, Biden could end up taking the lead days later. Trump could instigate a national crisis if he decries late-counted ballots as fraudulent and/or refuses to concede.

In such a scenario, though, even if Trump tries to stay in the White House after Biden is inaugurated, it’s unlikely that the Defense Department would be willing to back him.

“There’s a better chance of the Republicans trying to replace Trump as a candidate than Trump having enough credibility to use law enforcement to keep him in the White House.”

Trump is losing support from his own military brass, including Defense Secretary Mark Esper, who recently raised concerns within the administration about Trump’s use of federal forces for law enforcement. Employees within DHS are also calling the department’s deployment of the feds an unusual maneuver that could do long-term damage to the agency’s reputation.

Still, with the steadfast backing of DHS Secretary Chad Wolf, Trump could attempt a power grab by employing federal forces with an illegal suspension of civil liberties or even a declaration of martial law.

With renewed unrest over the weekend in several U.S. cities, as protesters faced off with feds in Portland, forced a police retreat in Seattle, and set fire to a courthouse in Oakland, the stage is set.

Greenberger doubts Trump could pull it off, though, saying he doesn’t have “enough credibility to use law enforcement, even in his own administration, to keep him in the White House.”

Further, even if Trump declared martial law, he still wouldn’t be able to postpone the November 3 election. Only Congress can alter the federal statute to change the date that states convene electors. Even then, the president’s term would still expire at noon on January 20, 2021. The powers of the office would then succeed to the Speaker of the House.

Nonetheless, if Trump loses, the period between November and January could be one of the most dangerous chapters in the nation’s modern history — especially if courts do not restrain the president’s federal paramilitary force.