Justice Department considered pursuing charges against Portland city officials in violent unrest

Danielle Wallace
Fox News
Fri, 18 Sep 2020 17:37 UTC

Attorney General William Barr

DOJ officials were looking at the way Portland officials, 'were handling, or not handling,' the riots and violence

The Justice Department explored possible criminal or civil charges against local officials in Portland, Ore., after weeks of clashes between federal law enforcement and violent protesters, spokeswoman Kerri Kupec told Fox News.

Kupec declined to comment on whether the department ultimately will bring charges. She said there were no specific charges in mind, rather, DOJ officials were looking at the way Portland officials "were handling, or not handling" the riots and violence.

The spokeswoman also did not confirm whether DOJ officials were focusing on specific city officials. The office of Portland Mayor Ted Wheeler did not immediately respond to a Fox News request for comment.

Separately, Justice Department officials disputed news reports that Attorney General William Barr told prosecutors in the department's civil rights division to explore whether they could bring charges against Seattle Mayor Jenny Durkan for allowing some residents to establish a protest zone this summer.

President Trump has criticized Democrats, and specifically, Wheeler, who he says have not done enough to stop nights of looting and unrest in cities across the U.S. Trump has called Wheeler a "wacky Radical Left Do Nothing Democrat Mayor" and has said the city "will never recover with a fool for a Mayor...."

Just days after the death of George Floyd while in the custody of police in Minneapolis at the end of May, large demonstrations reached Portland's streets and nightly clashes between protesters and police officers continued for over a month until federal law enforcement was sent in to protect federal properties.

'Mostly peaceful protesters' in front of the Mark O. Hatfield federal courthouse in downtown Portland

After arriving over the July 4 weekend, federal officers with the U.S. Marshals Service and other agencies were told Portland police was explicitly ordered not to respond to the federal courthouse as hundreds of demonstrators gathered outside, some throwing bricks, rocks, and Molotov cocktails at officers, and not to assist federal officers who were sent to try to quell the unrest.

Federal law enforcement remained in the city for about four weeks until the Department of Homeland Security and Oregon's Democratic Gov. Kate Brown agreed on a plan to bring Oregon State Police into downtown Portland and for federal officers to begin leaving the city.

© KPTV

A person was seen on a livestream heaving a large pile of burning material onto a desk inside the Multnomah Building.

More than 100 people have been arrested in Portland on federal charges related to the unrest over the last few months. The FBI has said it was also shifting the agency's resources to focus more heavily on violence and federal crimes committed during nearly three months of unrest during nightly racial injustice protests in the city that often ended in vandalism, clashes with police, and dozens of arrests.

Wheeler and Portland Police Chief Chuck Lovell publicly clashed last week after the mayor ordered police to stop using CS or tear gas for crowd control. The Portland Police Bureau argued in a press release hours later that amid "repeated violence by a group of motivated and well-organized individuals" carried out for more than 100 consecutive nights, officers used tear gas to "disperse crowds only when there is a life safety event."

"Most recently, it was used to disperse a crowd from which a Molotov cocktail was thrown at officers and ended up injuring a community member who was on fire," the police bureau said, expressing regret that some gas seeped into nearby homes. "However, the community should be asking the rioters why they are committing violence that threatens the very lives of others nearby. When people gather lawfully, peacefully, there is no need for intervention by police, much less the use of CS gas."

In an email to Lovell and assistant chiefs, Wheeler said: "While I do not often issue directives to the Portland Police Bureau, when I do I expect them to be followed. Civilian oversight of the Police Bureau is set in the Portland City Charter, and every sworn officer takes an oath to abide by that charter. Professionalism and public service demand nothing less," a copy obtained by the Portland Tribune said.

The mayor's office added in a statement: "PPB's decision to put out a press release questioning my direction was a serious breach of protocol and an inappropriate use of City communications resources. I made it clear, in no uncertain terms, to the Chief that this cannot happen again."

Comment: Apparently Mayor Durkan is concerned enough to mount a pre-emptive media strike:

Seattle Mayor Jenny Durkan has accused the Trump administration of using the Justice Department as a "political weapon," following a report that the DOJ may charge her for allowing protesters to take over part of the city in June.

Addressing a story published in the New York Times on Wednesday - which claimed Attorney General Bill Barr had asked prosecutors to consider criminal charges for the Democratic mayor - Durkan said the "chilling" report only proved the administration had politicized the Department of Justice, deeming Barr's request an "act of tyranny."

While the Times report relied on nameless sources - who it said refused to go on record "because they feared retribution" - the story also noted that Barr had recommended prosecutors consider sedition charges for those caught committing violent crimes amid ongoing protests around the country.

In Durkan's case, the sources said Barr suggested criminal charges in relation to an "autonomous zone" established by protesters in Seattle's Capitol Hill neighborhood in June - what came to be known as the "Capitol Hill Occupied Protest," or CHOP.

Durkan's handling of the CHAZ/CHOP situation was a study in political failure:

• Seattle Mayor Durkan refers to CHAZ as a 'block party', plans to let anarchists enjoy their 'summer of love'
• Seattle fail: CHOP zone barricades still intact, city slapped with ANOTHER lawsuit
• Seattle protesters occupy city hall, demand Mayor Durkan's resignation
• Seattle police chief asks why black people keep dying in the 'Black Lives Matter' CHOP zone
• Crime reports 5 times higher in CHOP zone from 'narcotics use and violent crime'
• If Seattle really thought Black Lives Matter, it would shut down CHOP chaos

Lawyer Andrew C. McCarthy of the National Review agrees with Barr's recommendations:

In a conference call last week, Attorney General Bill Barr urged federal prosecutors to be aggressive in filing charges against violent anti-American radicals who are rioting in various cities, attacking government buildings, and targeting law-enforcement officers. The AG reportedly recommended a range of offenses, including seditious conspiracy.

Instantly, according to the Wall Street Journal, "legal experts" warned that the "rarely used statute could be difficult to prove in court and potentially run up against First Amendment protections."

These are the same arguments that legal experts posited when I charged terrorists with seditious conspiracy for bombing the World Trade Center and plotting to bomb other New York City landmarks in 1993. The experts were wrong then, and they are wrong now.

The seditious-conspiracy statute, which is codified by Section 2384 of the modern federal penal code, was actually enacted by Congress during the Civil War — mainly to deal with Confederate sympathizers in free states who were violently sabotaging the Union war effort. As the Journal's experts observe, it is rarely used. That is not because the crime is especially difficult to prove; it is much more straightforward than many federal crimes. Rather, it is because the conduct at issue — dangerous conspiracies to levy war against the United States, to violently overthrow our government, or to violently oppose the government's legitimate authority — is historically unusual.

Notice the thread that runs through these variations of conspiratorial behavior: Force. Keep that in mind and you will easily grasp why apprehensions about sedition charges are specious. Unless prosecutors can prove that the alleged conspirators agreed to use force against the government, there is no such crime.

The notion of prosecuting sedition is anathema to legal experts and some historians because it calls to mind the late 18th century Alien and Sedition Acts, which are justly reviled as an unconstitutional effort to punish political dissent. There is also understandable constitutional concern about the word sedition. Outside the criminal-law context, it can be broadly construed to cover speech that, though it urges people to revolt against a government, does not necessarily advocate violence.

But here, we are talking about the criminal-law context, and the distinction matters. To begin with, the word "sedition" does not appear in the "seditious conspiracy" statute. The adjective "seditious" is in the title, but it does not appear in the statute's all-important charging language.

What matters in any criminal statute is how Congress has defined the proscribed conduct. In this instance, Congress has taken aim at forcible action against the nation qua nation, or its government qua government. To be precise, Section 2384 makes it a crime, punishable by up to 20 years' imprisonment, for two or more people to conspire . . .

. . . to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof. [Emphasis added.]

Consequently, if people urge the end of the United States or the dissolution of its government, but they do not contemplate accomplishing these objectives by force, then there is no crime. And even if people do contemplate using force against others, including others who happen to be government officials, there is still no seditious-conspiracy offense unless force is to be used to attack the United States, or to destroy or impede the functions of the U.S. government.

Congress has proscribed a straightforward offense: Force must be used, or at least contemplated, with the specific intent to strike at the United States or its government. Therefore, the fact that the word "sedition" may be fraught with ambiguity and dark historical overtones is irrelevant.

In my terrorism case, this offense was not difficult to prove, and the defendants were duly convicted. We had abundant evidence of jihadists' proclaiming that they were at war with the United States; that they intended to strike at political and financial targets in order to extort changes in American policy; and that they would attack government buildings and current and former government officials as part of their war against the country.

All those years ago, legal experts also cited the First Amendment as a supposedly fatal complication. The First Amendment protects freedom of conscience, the argument went, and jihadists were motivated by their interpretation of their religion. The First Amendment safeguards political speech to express dissent, and jihadists bitterly opposed American foreign policy and various aspects of American culture.

Again, this was a smokescreen. No one was being charged with having fundamentalists beliefs or harboring hostility to our country and its policies. The defendants were charged with conspiring to use force in prosecuting a war against our country and striking against our government. Their reasons for doing these things formed no part of the crime. As in any criminal case, statements indicative of purpose and motive factor in because they tend to prove beyond a reasonable doubt that defendants committed the charged acts with the requisite criminal intent. But Section 2384 targets violence, not beliefs.

Freedom of speech means the government may not make your speech illegal in and of itself, unless it falls within exceptions that were well known at the time the First Amendment was adopted (e.g., obscenity or incitement to violence). But the First Amendment has never been understood to immunize speech from being used as evidence of crimes.

Let's say a mafia boss replies, "I hate that guy, whack him," when the underboss asks what's to be done about a rival mobster. The mobster is subsequently killed and the boss is charged with murder. At the trial, the boss has no viable First Amendment objection to the admission of his statement as evidence. He is being prosecuted for murder, not the statements; the latter are obviously proof of his motive and intention to commit murder — they are not the murder itself.

Similarly, if there is evidence that people are using force or plotting violent attacks against U.S. government installations, there is no viable objection to the introduction of evidence that they hated the United States and called for attacks against the government. The statements are not the crime; they are evidence of the crime, and the First Amendment does not prohibit their use as such. Judges, moreover, carefully instruct juries that people may not be convicted for holding unpopular beliefs; there must be proof beyond a reasonable doubt, in a seditious-conspiracy case, that they conspired to use force against the nation and its government. That's the crime.

People who join in rioting are engaged in a form of domestic terrorism. They are likely to commit several federal crimes. Rioting itself is a federal crime (Section 2101) if people cross state lines to incite it or carry it out. I've recently addressed the Travel Act, which similarly involves crossing state lines to carry out crimes of violence. Arson and the use of explosives are also federal crimes.

If these forcible, lethally destructive acts are committed by people who are working together to make war against our country or attack our government, then seditious conspiracy is a perfectly apt offense to charge. It not only fits the conduct; it also allows prosecutors to charge the case in a framework that explains what the violent radicals are trying to accomplish. So Barr is right, and his critics' arguments are as wrong as they were almost 30 years ago.