After getting off the phone with Oregon Governor Tina Kotek on Saturday, the president mused over something that had baffled him about the call. Kotek had been ”very nice,” said Trump. But she was trying hard to convince him not to send in the National Guard, and that just didn’t make any sense to him. “But I said, ‘Well wait a minute, am I watching things on television that are different from what’s happening?’”
Hours later, Defense Secretary Pete Hegseth issued a memorandum federalizing 200 members of Oregon’s National Guard to deploy to Portland, and the state of Oregon promptly filed suit to stop it from happening.
In a hearing on Friday, the state of Oregon and the city of Portland presented arguments as to why a federal judge should grant a temporary restraining order against Trump. Over the course of about an hour and a half, the court appearance became a strange collision of television and reality, internet posts and statutory provisions. The two sides veered over a wide swath of legal territory — the prongs of Section 12406, the Posse Comitatus Act, the Administrative Procedure Act, irreparable harm. But the formalized structure of the hearing and the stolid, wood-paneled surroundings could not disguise the sheer insanity at the heart of the case. The lawsuit boils down to two things: the “great level of deference” owed to the Executive Branch when federalizing the National Guard, and the obvious truth that the Executive Branch is, at the moment, completely out of its gourd and posting through it.
There are three prongs to 10 U.S.C. § 12406, which outlines the circumstances under which the president may call up the National Guard. The first is in case of an invasion by a foreign power. The second is in the case of a rebellion. The third is when “the President is unable with the regular forces to execute the laws of the United States.”
“The parties have largely focused on Prong 3,” said Judge Karin Immergut as the hearing commenced. “I don’t think anyone has argued that we’re in danger of rebellion against the authority of the United States, but the defendants can correct me on that.”
As it turned out, the defendants — or rather, the DOJ attorneys representing the president and Pete Hegseth — did want to argue that Portland was on the verge of a revolt, saying that the protests at the ICE facility in Southwest Portland were a “deliberate organized resistance to the force and arms” of the United States.
“That standard is so broad it would swallow a whole lot of conduct,” objected Oregon senior assistant attorney general Scott Kennedy. “Most protests oppose authority.”
But somehow, the DOJ’s assertion that Portland was in danger of falling into an armed rebellion, wasn’t the most surreal part of the hearing. Most of the hearing was devoted to whether or not the preconditions for Prong 3 (the inability to execute US law using “regular forces”) had been met — or rather, whether the president’s determination that it had been met was valid.
When Judge Immergut asked the DOJ what the primary source of authority for the president’s determination was, deputy assistant attorney general Eric Hamilton replied, without the slightest hint of shame, “The most important determination is reflected in posts that he made on Truth Social.”
The two posts he cited were on September 27th and October 1st. In the first post, the president purported to authorize “full force” to call up troops to “protect War ravaged Portland” from “domestic terrorists.” The second post is much longer, and although it features Trump’s signature erratic use of capital letters, its sentences have multiple clauses and correspond to actual legal provisions. It’s a Trump-flavored post that doesn’t feel quite Trump. This October 1st post gets into the nitty gritty, specifying that he “activated and called into service the National Guard” because law enforcement “have not been able to enforce the Laws in Oregon.” The state of Oregon argued that the October 1st post was inappropriate to consider, since Hegseth had issued his memo on September 28th — a perfectly reasonable objection that barely seemed worth making, under the circumstances.
Hamilton took it upon himself to flesh out the picture of the war zone that the president was posting about. ICE was under “vicious and cruel” attacks by protesters, he said. Rocks had been thrown at ICE agents, protesters had attempted to “blind” ICE drivers with flashlights, ICE vehicle locations had been posted on the internet, ICE agents had been doxxed, and most terrifyingly, the driveway of the ICE facility had been occasionally blockaded, preventing shift changes. He also cited protesters setting up a guillotine on site. (No ICE agents have been guillotined.)
It was remarkable how many of the “attacks” he described were really about internet posts — posts about the vehicle locations, posts about the identities of ICE agents, posts with “violent threats” that proved that Portland was out of control. Kennedy pointed out that “by the defendant’s own description of the National Guard,” none of these things were in the National Guard’s power to address.
On top of that, not all of these things had happened in September, or even August. Many dated back to June, some to July. “The president’s perception of what is happening in Portland is not what is happening on the ground,” said senior deputy city attorney Caroline Turco. She spent some time reading excerpts from various law enforcement declarations that had been filed with the suit, especially in the nights leading up to Trump’s Truth Social posts, when the Portland Police Bureau had been in contact with the Federal Protective Service, which had reported “no issues, no concerns.”
Kennedy called the president’s posts “vague, incendiary hyperbole that lacks a good faith assessment of the facts.”
“We ultimately have a perception versus reality problem,” said Turco. “The president thinks it’s World War II out here. The reality is it’s a beautiful city with a sophisticated police force that can handle the situation.”
“We ultimately have a perception versus reality problem”
The shadow of 2020 loomed over much of the hearing. The DOJ wanted to use the 2020 protests to bolster its claims of violence and rebellion, but given the nature of a temporary restraining order, the judge didn’t seem to want to spend that much time thinking about what had happened five years prior. But the lawyers for the state and the city were also thinking about 2020 — “federal involvement,” they said, would only serve to “inflame” the situation, leaving Oregon and Portland holding the bag as furious protesters lashed out at Trump.
And the spectators in the courtroom and the overflow room were thinking about 2020 as well, Portlanders dressed in suits and rain jackets and puffers, filling the space with that idle, friendly chatter that is endemic to the Pacific Northwest. “Were you here in 2020?” I overheard one attendee say to another in the gallery.
The judge promised to issue her ruling soon, either that day or the next. She acknowledged that she had only been assigned to the case the day prior — the previous judge, Michael Simon, had recused himself the day before, caving to the Justice Department’s demands. Simon is married to Rep. Suzanne Bonamici (D-OR), whose district includes part of Portland and some of its suburbs. The new judge, Karin Immergut, was appointed by Trump in 2019.
As I exited the courthouse into a cold, wet October day, the building looked both new and old to me. I had been there many times before in the summer of 2020 — but the courthouse had been boarded up and fenced around, overrun with graffiti and feds in camo. I could see the spot where I had been tossed down the steps by an overzealous fed in 2020; it was next to a large engraved piece of stone I had never seen before, because it had been covered up by fortifications. There was a quote by Thomas Jefferson carved into its glossy face, with the inscription reading: “The boisterous sea of liberty is never without a wave.”
It was a bit on the nose, but so was everything else.
