Portland’s Pretext: Barr’s Long History Manipulating Law to Put Federal Forces on U.S. Streets

Attorney General Barr has been building his playbook for using federal forces against an unwilling state for decades. In an interview with the Miller Center in 2001, Barr explained his strategy for deploying federal troops to address unrest in the Virgin Islands after a major hurricane in 1989. At the time of the incident, Barr was an assistant attorney general and head of the Department of Justice’s Office of Legal Counsel. He boasted that during this time he found a way to deploy federal forces based on a legal justification that appears to now being played out in Portland:

Barr: We started quickly looking at the legal books. What authority do we have to go in there and start enforcing the law in St. Croix? We looked at some statutes, and we finally decided that without Presidential authority we could send down law enforcement people to defend the federal function. That is, we said, “People are interfering with the operation of our courts” and so on. I said, “We can send people down to defend the federal function, keep our courts open, and if they see any crime being committed in front of them, then, as law enforcement officers, they can make the arrest.” Our object was just to get federal law enforcement down there and play it by ear. Technically, we couldn’t send them down to—

Question: Did you consider interference with the mail as a basis?

Barr: Yes, we had a whole list of things like that, interference with the mail, interference with the courts. But basically we were claiming that there was breakdown, civil unrest that was interfering with the federal function. We found these old cases that said the federal government could go in there. This was without declaring martial law.

The White House’s true concern in 1989 was not to defend the federal function of courts — but to quell widespread looting and disorder across the Virgin Islands. Barr bragged in his 2001 interview that he had found a way to get the federal forces “down there and then play it by ear” without having to declare martial law. 

As a side note: This was not the only time Barr boasted in the Miller Center interview about his ability to deploy military force by changing facts on the ground. The other example involved the president’s ability to use force abroad without congressional support. 

Photo credit: Federal officers use tear gas and other crowd dispersal munitions on protesters outside the Multnomah County Justice Center on July 17, 2020 in Portland, Oregon (Mason Trinca/Getty Images)

 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

Danielle Schulkin

Junior Fellow at Just Security. JD, New York University School of Law. Prior to entering law school, she worked at the United States Department of Justice on the 2008 Financial Crisis Task Force and at the Geneva Initiative, an Israeli-Palestinian peace process think tank. Follow her on Twitter (@DaniSchulkin).