Federal Police Clash with Portland Protesters

protesters with militarized units on the streets of Portland. Mayor Ted Wheeler said the actions of the federal troops are unconstitutional and he wants them to leave unmarked vehicles driving in the crowds, pulling people off the streets without any probable cause as far as I can tell, and the people who are engaging in those activities aren't even willing to identify who they are, and they don't wear insignia on their uniforms. That's a real threat to democracy because

ultimately there's no accountability for that. But Acting Deputy Secretary for the Department of Homeland Security Ken Cucinelli defended the actions of federal troops and explained a video circulating of a men being apprehended by federal troops and put into an unmarked vehicle, Well, they determined that was not the person who did the assault and released him, joining me

as former federal prosecutor Eli Hoenig of Lowenstein Sandler. Do you remember another time in our history where there were cases of unidentified federal officers in camouflage throwing people into unmarked vans, taking them into custody, putting them in a jail cell, questioning them, and then releasing them without any record of their arrest. Absolutely not. And there's so much about this that sticks out as being not just unusual,

but extraordinary and potentially extraordinarily dangerous. So let's start with this. First of all, we don't have secret police here in the United States. I think that's one of the core theories that are democracy or a criminal justice system is built on um. I think what this really is a sort of performative law and order for some reason. There's obviously a political mode of behind this whole song and dance, but it's really dangerous, and I can sort of tick

through the ways. First of all, there's no such thing as federal police in the way that people normally think of police doing patrols. There are certainly are federal law enforcement agents at the I being the most widely known, but D E. A and A T S and on down the line. US marshals who are involved in this case DHS Homeland Security, but they do not ordinarily do what we would think of as street patrol, crowd control, that kind of thing, particularly if you're not dealing with

federal property. The streets of Portland are not federal property, so let's start with that. Second, of all, most law enforcement agencies require that unless you're talking about an officer who's working in an undercover setting, which these guys are not. At a minimum, the agency is identified on the uniforms, and frequently the name of the person is identified on the uniform. Same thing with our military, look at and

even generals have their names on their breast pockets. So the fact that there's this level of secrecy about this is extraordinarily alarming and I think also potentially dangerous to citizenry and to law enforcement officers. To put this in context, for example, early Monday, dozens of people were gathered at the Federal building with shields and helmets and bats and hockey sticks, and the Feds used tear gas and apparently

shut projectiles at them. Are they within their rights to be defending the federal building in the abstract sense, Yes, a federal building is federal property, not necessarily everything around it, but sure, But the question is is the level of force being used here justified by the situation. I mean, there's been videos that have gone viral that show these sort of mystery federal troopers using vastly excessive force on

people who pose no threat whatsoever. And when you get into things like shooting tear gas and concussion grenades and flares and things like that, that is on the very aggressive side of enforcement. I mean, that is far more than just defending and for texting a property. The other thing that alarms me from a sort of criminal justice and former prosecutorial standpoint is process or lack of process here. I mean, people have a right to know who is

arresting them and what they are being charged for. And that's for a couple of reasons. One, anyone who's charged with a crime has the right to challenge the arrest, and you need to know who you're being arrested by. And two is, in order to make a federal arrest, you need probable cause. And there are a couple of ways to establish probable cause. You can go to a judge, you can go to a grand jury, or if an officer sees a crime committed right in front of his eyes.

Those are the three ways. But just randomly picking up protesters and throwing them into cars and then releasing them without charges is completely against the way our system works. The New Year of Times got ahold of uh memo of the Department of Homeland Security that said that these people have not been trained in this crowd control. That lack of training is a serious concern because crowd control is not just something that an officer can into it

that that you just sort of automatically. No, it's not common sense. You need specialized training to learn how to manage a crowd without escalating that crowd. Right that the real job of a good police officer is de escalation, taking the temperature down, not rilling things up. And if you watch what's happening, I think you can see that lack of training. I also want to point out another potential danger here, which is people need to know which officers are real. I mean, there is a federal crime

of impersonating a law enforcement officer. I'm not suggesting these people are, but if someone wanted to go down to the Army Navy store buy some surplus and slap a police badge on there. Who's going to know the difference. And the last thing that I want to say that goes to an issue of danger is what law enforcement officers called deconfliction. Whatever you have law enforcement officials who

may cross path, then it happens all the time. Maybe there's local police in an area where the federal FBI, let's say, is going to be doing a search for it. You need to give everyone a heads up say hey, we're gonna be in your area where cops don't shoot. We're not breaking into a house. It's not a robbery. And so if you have law enforce from officers who are off the record and unidentifiable, that poses a risk to those officers and to other law enforcement officers in

are coming up next Oregon's lawsuit. I've been talking to former federal prosecutor Ali Hoenig about Oregon suing the US over the attention of residents during anti racism protests in Portland, shortly after a judge rule that journalist alleging local police had assaulted them could add federal agents to their own lawsuits. In the States, lawsuit against the Department of Homeland Security

in the U. S. Marshal Service. The Attorney General alleges they've overstepped their powers in threatening, injuring, or arresting protesters. In its lawsuit, Oregon sided two incidents it says took place in the past week. A peaceful protester was allegedly struck in the head with an impact weapon and sustained severe injuries, and an unmarked minivan with undercover federal agents wearing generic green military fatigues allegedly forcibly detained a second

protester who was later released. Elly tell us about the grounds of the lawsuit by the Oregon A G. Yeah, so there's several lawsuits here, but essentially the essence of the the Oregan Ages lawsuit is that these secret police are unlawfully arresting and detaining people, meaning without probable cause,

without proper due process and documentation. And again that I mean, this is core Bill of rights constitutional stuff that you are entitled to be advised of the charges against you, you are entitled to have council appointed, you are entitled to defend yourself. You're entitled to enter a plea of or not guilty. I mean, all of that is being violated.

So that's the essence of the AGES lawsuits. There's also a separate lawsuit that's been filed by the a c l U complaining about restraints and limits, um and intimidation tactics being directed at the media and at other official observers from law enforcement or from other sort of governmental entities that are trying to figure out what's happening there. So I and the U. S Attorney, who is the chief federal prosecutor for the district, also has requested an

investigation and assistance. So I think it's a good thing that a lot of different people, coming from a lot of different levels of government and from outside government are raising flags here. Suppose the judge, in let's take the AGES lawsuits, suppose the judge issues a preliminary injunction against the FEDS. Who's going to enforce that right? Well, I think the answer is it would It would fall to either the a G or the individual whose rights were violated.

But violating an injunction from the federal judges is very serious business. I mean that could be to contempt findings, which can be there is a criminal form of contempt. So if it gets to that point, then we're talking real lawlessness. But but there there could be real consequences for people who violate such an order. The President has said that he sent troops in because it was obvious that the Oregon couldn't take care of its its own problems.

When it comes to the president's power versus the power of city and state officials who have said we don't want you here. In fact, the mayor said please leave. Does the president have the authority to send troops in. The president does have fairly broad not fairly very broad authority to deploy federal troops. Now, look, there's an important distinction here. The president cannot deploy the military, and it doesn't appear these people are military, even though their dressed

military style. Cannot deploy the military to perform law enforcement functions, that's against the law. But that the president can deploy the military to keep order, and he can deploy federal law enforcement to perform law enforcement functions really um very very broadly. Any and while one way to do that is upon request from a governor, he doesn't need a request from a duffer. I mean think back the Little Rock for example, with the civil rights movement, president sent

in the National Guard against the wishes of segregation governors. UM, So, look, there's a legitimate question to hear about whether the president should be doing this and whether it's necessary. I think it's clearly not necessary. I think it's largely for show. And like you said, the leaders of the area have asked the President not to send people in. But but legally he does have fairly broad discretion to deploy federal agents in this case. The federal response has been that

we're protecting federal buildings and federal officers. So as long as they're you know, within the building parameters, are they properly there? But once I go into the streets, does that then start to raise questions. I have no problem with defending and protecting federal buildings, federal property, federal assets, and there's an argument that a certain area of the sort of vicinage around the building is included in that. But if you're going to do that, do it right,

do it lawfully, do it transparently. Do it the way that virtually all law enforcement functions in this country, which is a identify yourself, what agency you're representing, and preferably your name, uh be only make a rest if you have established probable cause through a judge through a grand jury or through directly observing an obvious crime rate in front of you, and then see give people who you

arrest their due process. They are entitled legally to be advised of the charges against them, to make appearance in court, to have counsel appointed, etcetera. So saying that well, we're just here defending federal assets is fine, but it doesn't excuse anything in the world being done in order to achieve that. You still have to play by the rules in defending those federal properties and assets. This might end before these lawsuits actually find their way through the courts.

Is the Oregon a G also asking for damages. I don't see a request for monetary damages. I think that would be hard to prove on a statewide level that the a G represents. But I look, I think individuals who have been wrongly detained, if they can show that, absolutely would have a potential lawsuit for damages against the

federal government. I mean, if somebody can show their rights were violated, they were wrongly taken into custody, they were wrongly arrested, apprehended, their absolutely could be a civil suit for monetary damages there and we should also point out that local authorities are also doing criminal investigations into some of these incidents. For example, there was a lot of video of former Navy civil engineer who was beaten with a baton and pepper sprays, so those are also going

on at the same time. Yeah, yeah, what criminal law needs to prevail here, I would say, um, in a couple of respects. First of all, if protesters are genuinely committing crimes assaults, uh, destruy action of property, then those crimes need to be investigated and prosecuted in accordance with the law and do process. But certainly if these camouflaged federal troops or agents are committing crimes, are using unjustified levels of force, then they can be charged with assaults

as well. I mean, there's no immunity from criminal charges for police officers or law enforcement aidens who use excessive force. There is this thing called qualified immunity which is now become a controversial notion, which says that a federal law enforcement officer cannot be sued civilly for money damages in his personal capacity. But you absolutely are subject to potential criminal charges if you use excessive force or assault somebody. Um,

without justification. Thanks Eli. That's former federal prosecutor Elie Honig of Lowenstein Sandler. Coming up next on the Bloomberg Law Show. The legal battle over the subtoinas for President Trump's financial records goes on. I'm June Grosso and this is Bloomberg. The Supreme Court has already ruled on the grand jury subpoena and congressional subpoenas for President Trump's financial records, but the legal battle is far from over its return to

the lower courts. The Supreme Court has cleared the way for the lower courts to move ahead in the clash over the grand jury subpoena. Manhattan District Attorney Cyrus Vans had asked the justices not to wait twenty five plus days, as they normally do after issuing an opinion. The court had rejected Trump's claim of sweeping immunity, while leaving open the possibility he could raise more specific objections in the

lower courts, and Trump is doing just that. Joining me is Harold crant, A, professor of the Chicago Kent College of Law. This seems to be moving fast, how fast compared to other cases Courts typically waits the twenty five days or so to issue a mandate or issue in order to lower court to resume jurisdiction over a case

once it's been decided by the Supreme Court. Here, uh, the District Attorney of New York advance decided to ask for the case to be returned to New York more quickly than that in order to get the whole controversy of Trump's taxes before the court again to move with their case along. And the Supreme Court agreed, largely because

Trump's attorneys evidently acquiesced. But still we're going to have at least one more round of litigation, at least in the New York Federal Court, because Trump's attorney has said that he's goes claimed probably that this is a phishing expedition, it's the intent to harass um the president um and that indeed the subpoena for taxes is too broad. So they will have to be a hearing on those queens

probably at some point in August. It was surprising to me that Trump's lawyers didn't fight the speeding up of the case. They agreed to it, and that was a big part of why Justice Roberts let it go forward. If they're fighting this too, then, noww why would they

agree to move it along quicker? The question crossed my mind as well, and my only speculation is that the attorney did not want to take off the Supreme Court anymore because it's a chance at this case, in some form or other, whether a contempt or direct appeal may find its way back to the the Supreme Court a second time. This is the case involving the subpoena from the New

York Grand Jury Prosecutor Cyrus Vance's office. Remind us what the Supreme Court said about President Trump being in nearly the same situation as any other person with regard to

the subpoena. So the Court first held, and most importantly, that the president is not above the law, that the president does not have a complete immunity from civil process or from criminal process for that matter, while he's in office, and that that's true with respect to a subpoena from a state investigatory agency, as it would be from a

federal investigatory agency. But and so holding, the Court did say that the president should have the opportunity to contest the subpoena on grounds, first of all, available to anybody else, such as sects too broad, but also on the grounds that somehow the subpoena will interfere with the president's conduct us his constitutional office of presidency um. In this case, uh the Trump's attorney Secolo has suggested that there may be some valid reasons for challenging subpoena. I mean, I

think most of us think that they're frivoleates um. But there may be one claim that has a bit of mirror, which is the fact that they've looked for I believe, eight years of tax returns and if the grand jury is really focusing merely on the hush money paid to Stormy Daniels by Michael Cone, which was the thesis, that's a one or two year process of looking at the taxes, if not an eight year But these are the kinds of issues that will be resolved relatively expeditiously by the

cord upon reman from the Supreme Court. That was the argument that I thought carried the most weight, that the scope of the subpoena was overbroad, and President Trump's attorney said that the d A just copied the congressional subpoenas. Do you think that's their strongest argument. I do think that the strongest argument is the question of scope of the subpoena. But we don't know exactly what the grand

jury is investigating. If the grand jury is only investigating hush money, obviously that would be triggered with respect to the Camp Hayne because that's when evidently President Trump paid this money and then tried to claim the deduction for it as a legitimate expense. But on the other hand, maybe the grand jury has investigated a pattern of these payments.

Maybe the grand jury has investigated some other kind of financial impropriety with respect to the campaign, and so needs to look at a couple more years of cash returns. But I do think it's questionable of where this eight year of cash returns came up. They came up with, and that may not be directly linked to the investigation that they're undertaking. You're listening to Bloomberg Law with June

Grazzo from Bloomberg Radio. I've been talking to Harold Branch, professor at the Chicago Camp College of Law, about the Supreme Court clearing the lower courts to move ahead in a clash over a grand jury subpinia for President Trump's financial records. From the Manhattan District Attorney Trump's attorneys want more information about the injury investigation. Grand Jury investigations are supposed to be secret. Would the judge allow them to

get more information? I doubt it. I mean, I think the argument by Trump's attorney is that how do we know if this is a legitimate investigation and not for harassment unless we know what the focus of the investigation is. Now, there are some alternatives here, and for instance, the Advance could give a overview of the investigation in camera, meaning in secret, to the presiding judge and in that way satisfy the judge that this is not a frivolous or

vexatious attempt to get information about the president. That's a possibility, So there is. It is extremely rare that someone would have the right to know what the grand jury is looking into. But there is a kind of kernel here formed by uh by President fromp lawyers that suggest that if you know, we need to have some baseline to hold that this investigation is not purely for harassment. And if that's true, then the question is what will Vance be willing to say public or will he be willing

to tell the judge again in private? Um what the injury generally is looking into now that remains to be seen. Trump's attorneys also indicated that they are going to raise the claim that there is a political motivation behind the subpoena, is a desire to harass the president. But this judge previously found the subpoena to be proper, and he asked them whether there were any new facts or different facts

to suggest the investigation was in bad faith. Does it seem likely that the judge is just going to affirm his prior ruling. Yeah. The argument that this is purely a frivolous investigation on the on behalf of the New York authorities is already been raised. It's already been rejected. Um. And I think from what we know, just in terms of the payment to the hushmoney to Stormy Daniels, that itself suggests that there is a good faith basis for

this investigation, and again it might be proper. We simply don't know. I think the only claim really that that the Trump's attorney has that may have a little some merrita is narrowing down the subpoena to show that there's at least some relevance or some connection between the years of tax material sought and the scope of the investigation.

But that being said, we simply don't know how broad the investigation is right now, and there may be other things that are being swept within the sites of the prosecutors in New York. Trump's attorneys mentioned an argument that it would interfere with his constitutional duties. But didn't the Supreme Court take that argument away from the president by saying he should be treated as any other person would be.

I think that the Supreme Court let a small, a very narrow outlet show that if there's something not in general, that in general that an investigation would interfere with the president's conduct of its constitutional responsibilities, but there was something particular or unique about an investigation which would undermine or

frustrate president's ability to lead. There has been nothing suggested here whatsoever, and it's impossible to understand how it could given that these it's not this tax information is being held by the accountant. It causes no duties on Trump at all. And indeed, Trump previously promised he would reveal the text um information to the public. He was nicked

on that um. But but it's unbelievable to think that there could be a valid claim here that the release of the tax materials would frustrate the president's ability to lead the country. During a court hearing, the d A said that the longer Trump fights, the higher the chance that the statute of limitations will expire. Let's not let delay kill this case. Yeah, there is a statue limitations here. It's a little bit unclear for which crimes because there

are different setual limitations. Um. And what that leads to. The interesting question though, is whether one a sitting president can be indicted. We've never had a sitting president be indicted before. The Department of Justice has come out on several prior occasions and the wake of the Nixon investigation and the Clinton investigation and said that one can a

sitting president cannot be indicted. Um. And it makes sense that if you're worried about a statue of limitation, you at least see in at least indict the president under seal. So we may be in stage because of this New York case into another constitutional moment, that is the question

of whether a sitting president can at fact be indicted. Now, historically we did see that a think vice president can be and anyone's bureau agne was subject to the criminal investigation um before he had to leave the White House. But in terms of the president, we've never seen that, and we may be that may be coming up well right before the election. Let me take you through a series. Suppose that the judge, Judge Marrero, says this subpoena is good.

You can enforce the subpoena. You can comply with the subpoena to the accountants. Then President Trump appeals to the Second Circuit. But suppose the judge does not enjoin the execution of the subpoena while the Second Circus case is played out. But then what will happen as President Trump's attorney would make an emergency motion in the Second Circuit to stay enforcement the subpoena pending resolution of the appeal. And my guess is that is exactly what the attorney

would do. Uh the Second would hold an emergency hearing on that motion and make a decision um. But I think that this is something that given the context, both the Second Circuit as well as the lower court would decide expeditiously. But it may end up going back to the U. S. Supreme Court, and the U. S. Supreme Court then would have to decide whether to decide this

on emotion or decide this on a another hearing. Um. My guess is there will be distaste in the Supreme Court to have a full hearing on this for a

second time because there won't be that many unique issues raised. Um. And so it's possible that on the eve of the election, the release will be released of the taxes, but that doesn't mean anything because the information will be secretly before the grand jury, and it's then it's up to the grand jury to side whether to indict President Trump, indict his son, indict here is accountants or whomever else allegedly

was part of this conspiracy to commit tax fraud. Because if you're looking at the odds, it does seem like the judge who previously ruled the subpoena was proper in a seventy eight page opinion and the second Circuit which previously ruled the subpoena was proper. That both those courts

are going to affirm what they said before. It's very clear to me that the subpoena will be upheld, perhaps in shorten their truncated form, but it will be upheld by both the lower Court and the Court of appeals, and I think it will actually be affirmed by the Supreme Court if it goes up there as well as

Supreme Court may even refuse to hear it. But the key question for those interested in the election is whether once those claims are resolved, and it will take a couple of months do that, does the grand jury have any time too then the way the information with other information that's received to decide whether to issue and tittenment again against Trump, against his family, against his accountants, who or whomever else was engaged in this alleged tech fraud.

Suppose that the grand jury has received the subpoena, they make an indictment of President Trump and perhaps some others. In a press conference, can the district attorney reveal some of the underpinnings of that indictment and say, after we got the tax returns, this is what we found. So the the first of all, the information may be leaked, and I think that President Trump's supporters are you know, have a have legitimacy in terms of being concerned that

the taxes will be be leaked. But as sidon being leaked, uh, the prosecutor at a press conference could give a general information about what information backed at the grand jury's decision to indict, if indeed they are allowed to indict a sitting president, uh, but they cannot give the details. And again, um, I think that's really don't know about this idea of

indicting a sitting president. There is all this research by the Justice Department saying we understand there's a problem because of the statute of limitations, um, but we just think it's somehow unseemingly uh to do that. So it's gonna be not a simple issue at all. Well, my own view, I don't think you can prosecute. I totally think you have to put off the prosecution until after the president

nice office. I mean, in my view, obviously they they've tried it, like in Israel and some of the countries, um, which has been a mess. But I do think you can indict, and that's the line I would draw. But you know, you can argue both ways, because there's very little evidence in the constitution, uh, you know, one way or the other. I mean, we know about impeachment, but we don't know about indictment. So you know, the argument is pretty much up for grabs. Thanks Harold. That's Harold

Grant professor at the Chicago Kent College of Law. The Supreme Court refused to fast track the subpoenas from the House for President Trump's financial records, rejecting their request to return two cases to the appeals court level ahead of schedule. The Court gave no explanation for its refusal, even though, as we've been discussing in Chief Justice John Roberts last week granted a similar request from Manhattan District Attorney Cyrus Vans.

And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on iTunes, SoundCloud, or Bloomberg dot com Slash podcast Slash Law. I'm June Grasso. Thanks so much for listening, and remember to tune in to The Bloomberg Law Show weeknights. Attend Dann East Journey right here on Bloomberg Radio.