Portland Charges Exemplify Struggle Over Feds’ Prosecution Encroachment

    Ammon Bundy shocked the country when he took up arms against the US federal government in 2016leading an occupation of Oregon’s Malheur National Wildlife Refuge over federal land rights that saw a 41-day standoff with law enforcement. He ended up beating Department of Justice (DOJ) charges over the incident. Perhaps more shocking is that Bundya right-wing white man who has recently been arrested protesting Idaho’s COVID-19 stay-at-home ordersupports Black Lives Matter protesters’ calls to defund the police.

    Resisting federal government overreach unites Americans who share ideals of liberty and liberation, if little else. And President Trump’s DOJ has lately raised another challenge to this unlikely but potentially potent coalition.

    In the months since the beginning of widespread protests over the killing of George Floyd, alt-right and neo-fascist groups have descended upon Portland, Oregon to stoke violence by provoking so-called “Antifa” members. By sending in federal law enforcement to intimidate and target activists, Trump added fuel to the unrest. His presidential re-election campaign has simultaneously used images of the protests to try to terrify his base into thinking he is the only one who can quell them, presumably through force.

    Prosecution is not as direct a form of coercion as the barrel of an officer’s gun, but the enforceability of its mandates derives essentially from the threat of state violence.

    Mike Schmidt, the new top local prosecutor of Multnomah Countywhich includes Portland and surrounding areasran as a more compassionate prospective lawman than his predecessor,  District Attorney Rod Underhilll, who supported capital punishment and fought to keep innocent people wrongfully incarcerated.

    After Schmidt’s resounding electoral victory in May, Underhill, who had not sought reelection, vacated the seat on July 31 rather than serve out his full term, allowing Schmidt to take charge of shaping the office’s response to the moment.

    DA Schmidt quickly announced that he would drop cases against hundreds of Portland protesters with minor charges, as part of recognizing the “right to speak.”

    Many of the charges these protesters face are minor ones, usually left in the hands of local authorities.

    Trump and his federal law enforcers do not support the change of heart found in growing numbers of locally elected prosecutors nationwide. On August 27, a couple of weeks after Schmidt’s announcement, Trump-appointed US Attorney Billy Williams, whose jurisdiction covers all of the state of Oregon, filed a massive indictment against 74 Portland protesters.

    Representing just the most recent example of a growing ideological standoff in prosecution, many of the charges these protesters face are minor ones, usually left in the hands of local authorities.

    A key reason this was even possible was Trump’s needless placing of federal officers on the scene, which made, in several cases, the disobedience of police officer orders (such as ordering protesters to disperse) a federal crime. Punishments for virtually all crimes are harsher at the federal level. Protester organizations will take note of the additional crackdown, which could chill otherwise protected political speech and assembly.

    These dynamics are not lost on local law enforcement accountability organizations such as the Pacific Northwest Family Circle, an organization founded by family members of civilians shot and killed by the police. In the context of a public education event, that organization characterized the actions of federal law enforcement as a “federal grab” of DA Mike Schmidt’s rightful power to formally decide what justice looks like on the local level.

    Of course, the Trump DOJ has eschewed prior norms of depoliticized federal criminal justice. His appointed US Attorneys have repeatedly inserted themselves in dramatic fights over criminal justice policy in ways tailored toward grabbing headlines.

    These federal moves are a demonstration of hard power as well as soft.

    In Philadelphia, US Attorney Bill McSwain has made verbal denigration of progressive DA Larry Krasner, as well as bald moves to strip his authority, a reliable part of the local media landscape. In Seattle, US Attorney Brian Moran publicly threatened the city attorney in order to scare those in favor of opening a safe consumption site out of actually doing it. In the District of Columbia, US Attorney Jessie K. Liu lobbied the Washington Post to scorch the DC Council over weighing a bill to give incarcerated young adults a chance at parole.

    These federal moves are a demonstration of hard power as well as soft. We’re not yet seeing federal prosecutors probe their local counterparts for excuses to jail them for policy discretions they dislikeat least, there has been no clearly identified example. But today’s federal law enforcers are much more willing to show local prosecutors that they will kneecap them publicly when they step away from tough-on-crime orthodoxy

    Groups like the Pacific Northwest Family Circle, together with constituencies as diverse as Bundy supporters and Black Lives Matter, are likely to face a significant challenge in reversing federal encroachmentnot only now, but even after the US presidency changes hands.



    Photo of June 2020 Portland protest by Pete Forsyth via Wikimedia Commons/Creative Commons 3.0

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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