The lawlessness of Trump's 'law and order'

President Trump's deployment of federal agents to Portland and, soon, Chicago and beyond is rightly raising alarms — and legal challenges.

Militarized, anonymized squads with improper training who are sent in without invitation from local authorities and violently sweep away protesters into detention of uncertain legal status are utterly unsuited to an ostensibly free society. Some pushback has already begun. The feds' modus operandi is egregious enough that even the Trump-appointed U.S. attorney for the District of Oregon Billy Williams has requested investigation of their actions in Portland.

But here's something that would make this bad situation worse: the same federal agents raiding protests without independent scrutiny from journalists and legal observers. This is precisely what the administration sought in court filings in Portland on Tuesday. If that argument wins, it will be a serious blow against the rule of law, farcically struck in the name of "law and order."

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The Trump administration's lawyers, of course, do not characterize their demand that way. "Simply put, the federal government has the legal obligation and right to protect federal property and federal officers, and the public has a compelling interest in the protection of that property and personnel," wrote Department of Justice attorney Andrew I. Warden. "The press is free to observe and report on the destruction of that property, but it is not entitled to special, after-hours access to that property in the face of lawful order to disperse." Any injury to journalists, Warden claimed, was accidental, a rare and unintended externality of lawful efforts to prevent further destruction of federal buildings.

Warden's language conjures a picture of pesky journalists poking around vandalized buildings while weary officers try to close shop after a long night. But that's not what's happening. The ACLU of Oregon-led class action lawsuit to which Warden is responding alleges local police and federal agents in Portland have targeted journalists with "flash-bang grenades, rubber bullets, and tear gas merely for seeking to cover the protests" and "assaulted [legal observers] with batons, rubber bullets, and tear gas simply for watching how [officers] were treating demonstrators."

If these allegations have any basis in fact — and the complaint includes video evidence — law enforcement in Portland aren't innocently catching media and neutral observers in the line of duty. They're deliberately warding off public answerability.

Remarkably, the federal filing specifically objected to the conditions of a July 2 restraining order enjoining Portland police from dispersing, "arresting, threatening to arrest, or using physical force" against journalists and legal observers who aren't suspected of committing any crime. That barebones standard of press freedom, Warden said, is too much constraint for officers of the federal government, who apparently need to disregard the First Amendment to do their jobs.

This is exactly the sort of routine, procedural assault on media rights I suggested the Trump administration would favor in a column two years ago. It's not the assassinations or open censorship some said we should fear following Trump's rants about "fake news." It's a court filing argued on pragmatic grounds and couched in language of respect for constitutional rights and defense of federal properties. Mundanity and deniability are the strategy's strengths.

Suppose Warden's argument succeeds and Trump goes forward with his vow to deploy federal officers to other cities with ongoing protests and Democratic leadership. We'd face a scenario in which allegations of federal abuse of authority would be dangerously difficult to verify and address.

Though most demonstrators are equipped with cell phones that can record law enforcement, that citizen backstop can't always replicate the watch kept by informed and unmolested journalists and legal observers. And without that watch, our understanding of chaotic, confusing situations will rely solely on the testimony of state agents and the people — protesters or vandals or neither or both — whom they're policing. In a legal system notoriously deferential to police, whose word is likely to win out when those stories conflict?

The irreplaceable scrutiny of independent reporting isn't only crucial for such post hoc investigation. It matters in the moment, too. The mere presence of press and legal observers may deter wrongdoing altogether — and, conversely, their mere absence may encourage it.

Law enforcement unwilling to operate under that basic scrutiny might well impose order, but it won't be the order of contentment that flourishes under just, accountable rule of law.