To what extent should the law yield to an online hallucination?
To what extent should the law yield to an online hallucination?
After hanging up the phone with Oregon Governor Tina Kotek on Saturday, the president contemplated something that had puzzled him about the conversation. Kotek had been “very cordial,” Trump stated in a follow-up interview the next day. Yet she was vigorously attempting to persuade him not to deploy the National Guard, which perplexed him. “But I thought, ‘Wait a second, am I observing different events on TV than what’s occurring?’”
Later, Defense Secretary Pete Hegseth released a directive federalizing 200 members of Oregon’s National Guard to send to Portland, prompting the state of Oregon to immediately file a lawsuit to prevent it.
During a hearing on Friday, Oregon and the city of Portland made their case for why a federal judge should impose a temporary restraining order against Trump. For about an hour and a half, the courtroom dynamics revealed a bizarre interplay of television narratives and reality, online posts and legal standards. The discussions traversed a vast array of legal concepts — the facets of Section 12406, the Posse Comitatus Act, the Administrative Procedure Act, and claims of irreparable harm. However, the formal setting of the hearing and the serious, wood-paneled decor could not mask the sheer absurdity that lay at the core of the matter. The lawsuit revolves around two main issues: the significant “level of deference” granted to the Executive Branch when mobilizing the National Guard, and the undeniable fact that the Executive Branch is, at this juncture, entirely out of touch and acting irrationally.
There are three conditions in 10 U.S.C. § 12406 that stipulate when the president may activate the National Guard. The first pertains to an invasion from a foreign power. The second concerns a revolt. The third arises when “the President cannot effectively enforce the laws of the United States using regular forces.”
“The parties have mainly centered their arguments on Prong 3,” Judge Karin Immergut noted as the hearing began. “I don’t believe that anyone has claimed we’re facing a rebellion against U.S. authority, but the defendants can correct me if I’m mistaken.”
Interestingly, the defendants — specifically the DOJ attorneys representing the president and Pete Hegseth — did assert that Portland was on the brink of an insurrection, arguing that the demonstrations at the ICE facility in Southwest Portland represented a “coordinated organized defiance against the military and firepower” of the United States.
“That criteria is so extensive it would encompass a vast array of actions,” countered Oregon senior assistant attorney general Scott Kennedy. “The majority of protests resist authority.”
Yet, remarkably, the DOJ’s claim that Portland was on the verge of an armed uprising wasn’t the most surreal aspect of the hearing. A considerable portion of the discussion was dedicated to whether the prerequisites for Prong 3 (the inability to effectively enforce U.S. law via “regular forces”) had been fulfilled — or rather, if the president’s assertion that it had been fulfilled was justified.
When Judge Immergut queried the DOJ about the primary basis for the president’s conclusion, deputy assistant attorney general Eric Hamilton acknowledged, without a hint of embarrassment, “The most crucial determination is substantiated by postings he made on Truth Social.”
The two posts he referenced were from September 27th and October 1st. In the first post, the president claimed to authorize “full force” to call in troops to “protect War-torn Portland” from “domestic terrorists.” The second post is considerably longer and, despite Trump’s characteristic erratic capitalization, its sentences possess multiple clauses that align with actual legal terms. It’s a Trump-styled message that feels a bit less like him. This October 1st post delves into specifics, indicating that he “activated and summoned the National Guard” because law enforcement “had been unable to uphold the laws in Oregon.” The state of Oregon challenged the October 1st post’s relevance, noting that Hegseth had sent his memorandum on September 28th — a perfectly valid objection that seemed hardly worth voicing in light of the context.
Hamilton sought to elaborate on the crisis the president was depicting. ICE was apparently facing “brutal and merciless” assaults by demonstrators, he asserted. Rocks were hurled at ICE personnel, protestors had attempted to “blind” ICE drivers with flashlights, locations of ICE vehicles had been shared online, ICE agents had been doxxed, and most alarmingly, the driveway of the ICE facility had occasionally been obstructed, hindering shift changes. He even mentioned protesters constructing a guillotine on-site. (None of the ICE agents had actually been guillotined.)
It was astonishing how many of the “attacks” he described were actually related to online postings — posts about vehicle locations, posts revealing the identities of ICE agents, posts featuring “violent threats” demonstrating that Portland was out of control. Kennedy noted that “by the defendant’s own depiction of the National Guard,” none of these issues fell within the National Guard’s purview to address.
Moreover, not all these events had transpired in September or even August. Many traced back to June, some to July. “The president’s interpretation of the situation in Portland does not reflect the reality on the ground,” stated senior deputy city attorney Caroline Turco. She took time to read selected excerpts from various law enforcement declarations submitted with the case, particularly from the nights leading up to Trump’s Truth Social posts, when the Portland Police Bureau was in contact with the Federal Protective Service, which had reported “no issues, no concerns.”
Kennedy deemed the president’s posts as “ambiguous, incendiary exaggerations that lack a sincere evaluation of the facts.”
“Ultimately, we face a discrepancy between perception and reality,” noted Turco. “The president perceives it as a World War II scenario. The actuality is that it’s a beautiful city with a capable police department that can manage the situation.”
The specter of 2020 hovered over much of the hearing. The DOJ aimed to leverage the 2020 protests to support its arguments of violence and insurrection, but considering the nature of a temporary restraining order, the judge seemed reluctant to invest extensive thought on events from five years earlier. However, the attorneys for the state and city also reflected on 2020 — they argued that “federal intervention” would merely serve to “exacerbate” the situation, leaving Oregon and Portland with the fallout as agitated protestors turned against Trump.
The court viewers and overflow room attendees were also recalling 2020, with Portland residents in suits and rain jackets occupying the space, engaging in that relaxed, amiable banter typical of the Pacific Northwest. “Were you present in 2020?” I overheard one participant ask another in the gallery.
The judge promised to render her decision soon, either that day or the next. She acknowledged that she had only received the case the previous day — the former judge, Michael Simon, had recused himself just prior, yielding to the Justice Department’s requests. Simon is married to Rep. Suzanne Bonamici (D-OR), who represents part of Portland and its outskirts. The new judge, Karin Immergut, was appointed by Trump in 2019.
As I stepped out of the courthouse into a chilly, damp October day, the structure appeared both new and nostalgic to me. I had frequented it many times in the summer of 2020 — but the courthouse had been shuttered and barricaded, overtaken with graffiti and federal agents in camouflage. I could discern the location where I had been shoved down the steps by an overzealous federal agent in 2020; it was adjacent to a large engraved stone I had never noticed before, as it had been shielded by barriers. The stone bore a quote by Thomas Jefferson, inscribed with the words: “The turbulent sea of liberty is never devoid of a wave.”
It was somewhat on the nose, but then again, so was everything else.
