As a federal appeals court mulls whether to reconsider its decision allowing President Donald Trump to federalize and send the Oregon National Guard to Portland, his administration on Monday made what local leaders fighting a deployment are casting as a remarkable admission:
Part of its testimony justifying the need for troops was wrong.
“We deeply regret these errors,” wrote Justice Department attorney Andrew M. Bernie in a letter to the Ninth Circuit Court of Appeals filed in the court record.
The admission comes as the Trump administration faces a series of legal challenges in its efforts to deploy guard troops in Portland, Los Angeles and Chicago, Democratic-led cities where it has intensified immigration enforcement and crowd control tactics by federal agents.
In Oregon, “115 (Federal Protective Service) officers have had to deploy to Portland” due to monthslong protests outside an Immigration and Customs Enforcement facility there, an official with that agency – which provides security to government-owned properties – said earlier this month in an affidavit in support of a troop deployment.
“The continued deployment of FPS officers in response to the immigration protests stretches an already thin force beyond what is safe and effective,” Regional Deputy Director Robert Cantu said in the affidavit.
Those 115 officers amounted to “nearly a quarter of the agency’s entire FPS capacity,” Trump administration attorneys originally said.
However, this “statement was incorrect,” Bernie acknowledged in the Monday letter, noting only about half that number were agents sent out to provide security.
The admission calls into question a key part of the president’s justification for deploying the guard: “FPS, which is the regular security force charged with protecting the (ICE) Building, is stretched to the point of collapse,” the Trump administration argued in its original court filing.
A three-judge panel of the Ninth Circuit, in a 2-1 decision this month, stayed a restraining order by US District Court Judge Karin Immergut, who said it appeared Trump overstepped his authority with the guard call-up.
Late last week, the appeals court temporarily suspended the panel’s own decision while it decides whether to rehear the case “en banc,” with 11 judges considering it instead of three. That decision could come today.
The conservative majority on the appeals panel in the Portland case criticized Immergut, a Trump appointee, for failing to take the administration’s claims about Portland security needs – specifically, the numbers Cantu cited – at his word.
“Our colleague in dissent and the district court cannot summarily dismiss Director Cantu’s sworn and undisputed statements,” the majority wrote.
Now, the Trump administration says many of the 115 agents cited by Cantu were effectively double counted, with some deployed more than once. The actual number of FPS agents sent to Portland was 86, and only 65 were “inspectors” whose primary job is providing security, Bernie’s letter says.
In her dissent, US Appeals Court Judge Susan Graber said she was unimpressed with Cantu’s affidavit, considering it vague.
“We do not know why the government chose not to file a declaration describing the relevant details,” the Clinton appointee wrote. “But it cannot submit an ambiguous assertion and then ask us to interpret that assertion in its favor.”
Still, despite the erroneous filing, even the smaller number of agents shows “the surge of FPS personnel in response to violence and unrest is unsustainable” and Trump has justification to send in the National Guard, Bernie says in the Monday letter.
“Although defendants regret any unintended ambiguity about the number of deployed FPS officers at any given time, there is no basis for concluding that any such ambiguity was the basis for the majority’s decision,” the attorney wrote.
The appeals court stay this month did not rely solely on the number of agents. “The statute … does not limit the facts and circumstances that the President may consider” in deciding whether ordinary agents cannot enforce federal law without military help, judges wrote.
The Department of Justice only discovered the mistake after it was raised by attorneys for plaintiffs Oregon and Portland, Bernie’s Monday letter says.
The plaintiffs in their own letter to the court noted the numbers in Trump administration filings conflicted with each other, ultimately showing a maximum of 31 FPS officers in the field at any one time.
“This Court must act swiftly to prevent defendants from attempting to benefit from their own material mistake to deploy military forces to peaceful civilian streets, contravening the rule of law and our nation’s history and traditions,” Oregon Attorney General Dan Rayfield wrote.
For now, a separate restraining order from Immergut prevents National Guard troops from any state from being deployed in Portland. Following a hearing last week on the federal request to end that restraining order, the judge has not yet made a decision.
First Appeared on
Source link
