I shared the below update last week with a few partners and got such a positive response to it that I was encouraged to share it more broadly. I recognize it's been awhile since we've sent an update like this so in case you missed it, I also want to share this recent profile of our work from Time Magazine.
If you'd like more frequent updates like the one below, let us know by clicking here.
While the threats facing our democracy are real and growing, so is the movement to overcome those. Thank you for being a part of that movement,
On Monday, we filed a lawsuit on behalf of the Black Lives Matter group Don’t Shoot Portland, the organizer of the Wall of Moms, and several other protestors to stop the Trump Administration’s deployment of militarized federal agents to an American city to brutalize and quash constitutionally-protected protests against systemic racism.
On Tuesday, we informed the Department of Justice we would be filing for an emergency temporary restraining order to halt the federal operation in Portland and began negotiating with them over whether we would do so in light of a possible deal with Oregon officials.
By Thursday, Trump retreated and federal agents withdrew.
This was a remarkable turn of events and we were only a part of it. But I want to share some thoughts on why and how I think it happened as there may be lessons in it for how we all continue to win these fights in the days and weeks ahead.
My -- albeit speculative -- take is that Trump and DHS retreated for a combination of four reasons:
External Pressure - The Trump Admin faced a barrage of pressure on multiple fronts, including a successful lawsuit on behalf of journalists brought by the ACLU, pressure from the Oregon Governor and Portland city officials, action in Congress (where we helped Members craft their response), and a lawsuit from the Oregon Attorney General. And when that lawsuit was thrown out for lack of standing because the Oregon AG wasn’t the person being injured by the Federal crackdown, we filed our lawsuit on behalf of those who were against the entirety of the Federal deployment and the authority of Chad Wolf to even be occupying the role of Acting DHS Secretary.
Internal Pressure - There have been a number of data points suggesting DHS and DOJ leadership were facing a backlash from within against their overreach. For one, we saw leaks to the press from within DHS exposing deeply disturbing domestic surveillance DHS has been carrying out against protesters and reporters. In addition, the DOJ and DHS Inspectors General announced an internal investigation into potential wrongdoing in Portland and Lafayette Square (the announcement of this investigation appeared to credit its prompting to, among other things, the letter we organized on behalf of more than 1,200 DOJ alumni calling for such an investigation)
Public Perception - Ultimately, I think Trump advisers realized the politics were trending away from them on this. They gambled that by further inflaming tensions in Portland, they’d burnish Trump’s image as the law & order President protecting America from violent leftist urban anarchy. But that gambit failed. The public continues to broadly support Black Lives Matter and as Feds teargassed protesters, Biden’s polling advantage over Trump on both the handling of criminal justice and race relations grew. The extensive media work we did in support of our litigation and clients (see below) likely helped with the public framing.
The Commitment of the Protesters - As the Feds cracked down, the protests grew. And while there was scattered violence, the overwhelming tenor of the protests was peaceful, with the breadth of support for Black Lives Matter growing each day to include walls of moms, walls of vets and others coming to join those who’d been out protesting systemic racism for months and longer.
With pressure building, peaceful protests growing and the politics failing, the Trump Admin needed an exit strategy, and when the Oregon Governor offered one, I think they looked at all of the above and took it.
Technically, our case is not over. As mentioned, throughout the week we have been in negotiations with DOJ about what we need to see from the Federal withdrawal to be comfortable suspending our litigation. We remain prepared to file for a restraining order should the withdrawal not proceed as announced or other facts change.
But for now, this appears to be a complete victory over the issue of the Federal deployment in Portland. It is of course not yet a full victory -- far from it -- over the issue at the center of all of this: the movement against systemic racism and in support of Black lives. That fight continues.
We also recognize that as Feds pull back from Portland, Federal agents have been deployed to various other cities, including Kansas City, Chicago, Detroit, Milwaukee and Cleveland. We are monitoring these deployments with a particular eye towards how they might relate to the integrity of the coming election.
Towards that end, we publicly released a legal analysis of potential legal claims available to states if the president were to use the Insurrection Act to deploy the military around the country and interfere with the administration of free and fair elections. As was reported in Time Magazine, this work was the result of our response to an inquiry by a state attorney general’s office following the Trump Administration’s use of militarized force to clear peaceful protestors in front of Lafayette Square and the president’s threats to invoke the Insurrection Act to direct the military to similarly quash protests in other jurisdictions.
In other work:
We are devoting significant resources to our litigation in Wisconsin to prevent another election systems failure there like the one that happened in April and have a hearing on that case in Federal court next week. You can read our latest filing here.
The National Task Force on Election Crises that we organized continues to engage media, government actors, influencers and others on a host of strategies to prevent, and be in a position to survive, any crisis around the election in November. As just one example, when President Trump raised the possibility of postponing the election this week, the media immediately and overwhelmingly made clear he has no power to do that. That universal response was informed by extensive private and public briefings the Task Force and others had done in advance of and in anticipation of Trump’s tweet making sure everyone was armed and informed with the actual law and facts to shut this idea down before it could gain any traction. There’s more like that in the works. Mother Jones reported on some of the work here.
Our long-running work with the House contributed to two of our priority bills for strengthening checks on presidential abuses passing through the House Judiciary Committee. The first imposes additional checks on abuse of the pardon power. And the second ensures presidents cannot evade criminal liability by using the supposed immunity of their office to run out the clock on federal statutes of limitations.
A brief we filed on behalf of First Amendment legal scholars helped secure a court victory against the Trump Administration’s attempt to re-imprison former Trump lawyer Michael Cohen in order to prevent him from publishing a book critical of the President.
Together with the ACLU of Puerto Rico and other advocates, we successfully persuaded Puerto Rico Governor Wanda Vázquez Garced to veto a dangerous bill that would have moved the island’s voting system insecurely online. Online voting would be a ripe target for various kinds of election interference, and this effort was part of a broader campaign to ensure our country’s election systems are as secure as possible.
We organized a statement from a bipartisan group of nearly 80 scientists and public health officials who have served in presidential administrations from Nixon to Trump calling on the federal government to prioritize science over politics in responding to the COVID-19 pandemic and urging Congress to provide more rigorous oversight of the pandemic response and to block any attempts at political interference in science-driven response efforts.
And lastly, as I mentioned in an email a few months back, we won an appeal of our lawsuit on behalf of the Union of Concerned Scientists to block an effort by former Environmental Protection Agency chief Scott Pruitt to kick expert scientists off of EPA advisory committees (in a transparent attempt to stack advisory boards with industry-paid scientists). What’s new is that, following our win on appeal, rather than continue to litigate the case, the EPA folded and announced it would drop its pro-industry and anti-science restrictions.
As usual, this is but a sampling. There is so much more the staff is doing, and that the movement of which we all are a part is doing. And there is so much more we all must do.
We all know that our democracy itself hangs in the balance of what happens over the next few months. This is the time to double and triple down in defense of our democracy. We are doing that, and remain as ever honored to be doing that arm in arm with all of you.
