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<\/a><\/figure>\nThe DOJ scrambled to back-formulate a legal justification for this military onslaught, and, as in so many cases lately, it wasn\u2019t too concerned about the veracity of its evidence. So now the Ninth Circuit Court of Appeals has to decide whether a comparatively little lie matters when they\u2019ve already credited the big lie it supports.<\/p>\n
Off to a Bad Start<\/h2>\n
In a very real sense, the Ninth Circuit laid this trap for itself in earlier litigation over National Guard troops in California. In June, trial Judge Charles Breyer issued a temporary restraining order<\/a> declaring that none of the preconditions for federalizing the state militia under 10 U.S.C. \u00a7 12406<\/a> had been met: There was no invasion or rebellion in Los Angeles, and the president was not \u201cunable with the regular forces to execute the laws of the United States.\u201d<\/p>\n But a conservative panel of the Ninth Circuit, including two Trump appointees, disagreed<\/a>. Citing the brief spasm of rioting \u2014 which was quickly put down by the Los Angeles Police Department \u2014 they determined that the president made a \u201ccolorable\u201d claim that he was unable to execute the laws. The slim silver lining was that the panel in Newsom v. Trump<\/em> was unwilling to cede the field entirely to the executive branch.<\/p>\n The Department of Justice takes the position that, whenever Trump declares an emergency under \u00a7 12406, his determination is absolutely unreviewable by any court. If the president says that there is rebellion, then there is rebellion,<\/em> and no judge can decide whether he\u2019s lying or not. The original Ninth Circuit panel rejected that maximalist argument, holding that, while they were obliged to \u201cgive a great level of deference to the President\u2019s determination that a predicate condition exists,\u201d the president\u2019s determination is<\/em> subject to judicial review.<\/p>\n But deference to the president\u2019s claims, no matter how patently false, incentivizes the Justice Department to play fast and loose when called upon to invent post facto justifications \u2014 particularly this<\/em> Justice Department. And because the Ninth Circuit got the first crack, their highly deferential standard was accepted by subsequent courts, including a second panel of Ninth Circuit judges that reviewed the Oregon National Guard deployment, as well as the Seventh Circuit\u2019s review of the parallel case in Illinois.<\/p>\n Contrary to what the President says on social media, there is no \u201cWar\u201d in Portland and no \u201cICE facilities under siege from attack by Antifa and other domestic terrorists.\u201d There are, however, a lot of protesters dressed up as frogs and rainbow unicorns.<\/p>\n Nevertheless, the second Ninth Circuit panel considering Trump\u2019s federalization order in Oregon found that the president\u2019s emergency determination \u201creflects a colorable assessment of the facts and law within a range of honest judgment.\u201d<\/p>\n That panel also had two Trump appointees, including Judge Ryan Nelson who penned a concurrence endorsing the DOJ\u2019s previously-rejected assertion that the president\u2019s emergency determination is \u201cunreviewable by the federal courts.\u201d To Nelson, \u201cthe President\u2019s decision in this area is absolute,\u201d so it doesn\u2019t matter that Trump openly lies about imaginary Antifas conducting make-believe sieges.<\/p>\n As it turns out, Trump\u2019s lackeys in the DOJ have also lied. A lot<\/em>. In fact, while the Ninth Circuit was considering the Oregon federalization appeal, the DOJ admitted that one of its central claims in support of the emergency declaration was grossly inaccurate.<\/p>\n That lie came in a supporting affidavit<\/a> by Robert Cantu, the Deputy Director of the Federal Protective Services, who attested that 115 of the 776 members of his agency had been forced to surge into Portland to protect its immigration facility:<\/p>\n The sustained violence associated with the protests in Portland has required FPS Region 10 to deploy officers from the other FPS Regions. To date, 115 FPS officers have had to deploy to Portland to maintain a 24\/7 operational tempo. Removing these officers from their normal duty stations means that the buildings they are assigned to must rely on other FPS officers or the local police force to respond to law enforcement incidents. Moreover, the security related functions that the assigned officers normally perform end up being delayed.<\/p>\n<\/blockquote>\n Judge Nelson and Judge Bridget Bade, the two Trump appointees considering the appeal, cited Cantu\u2019s declaration 18 times in the majority opinion, which bemoaned the \u201clack of support\u201d from local law enforcement and the drain on operational capacity of federal law enforcement nationwide.<\/p>\n \u201cThe record reflects that 115 FPS officers\u2014nearly 25% of FPS officers nationwide\u2014were diverted to Portland\u201d they tut-tutted. \u201cThe President may reasonably rely on this evidence in determining whether he is unable to execute the law.\u201d<\/p>\n In dissent, Judge Susan Graber, a Clinton appointee, noted that something seemed fishy about Cantu\u2019s \u201cvague, carefully worded assertion.\u201d<\/p>\n Crediting his assertion, we know that a total of 115 officers from elsewhere were deployed in Portland during the preceding four months. The record contains no information about how many officers were in Portland at any given time. For all we know, FPS sent a different 8 officers to Portland every week for 14 or 15 weeks, meaning that Portland\u2019s drain on FPS\u2019s staff from elsewhere on any particular day was 8 people, not 115. Indeed, the only description in the record of a \u201c[s]urge\u201d in officers was the deployment of 8 officers. The fact that there were 26 FPS officers on duty on September 6, as the majority\u2019s order emphasizes, says nothing about whether any or all of those individuals were from somewhere other than Portland. The record does not reveal the number of local FPS officers.<\/p>\n<\/blockquote>\n The majority all but mocked Judge Graber, scoffing the she \u201conly reaches a different conclusion by characterizing this evidence as \u2018staffing difficulties\u2019 and committing the same error as the district court in discounting, minimizing, and discrediting [the government\u2019s] undisputed evidence on this point.\u201d<\/p>\n Except that Judge Graber was absolutely right to discount, minimize, and discredit the government\u2019s evidence. In discovery, FPS admitted<\/a> that it did exactly<\/em> what Graber suspected, rotating different officers through Portland each month and aggregating the total to make it appear as if the agency was dedicating a quarter of its resources to maintaining order in Portland. In reality, there are four agents permanently stationed in Portland, and FPS deployed waves of 27, 31, and 29 agents from other regions. In the month leading up to Trump\u2019s emergency declaration, a mere 20 agents were pulled in. That does not support an honest judgment that Portland was under siege.<\/p>\n And the government repeated this lie in its brief opposing en banc<\/em> reconsideration<\/a>:<\/p>\n FPS, which is charged with protecting the Lindquist Building, is stretched to the point of collapse. The sustained violence and security risks have required FPS to provide 24\/7 protection for the building, a task it is simply not resourced to accomplish. To date, 115 FPS officers have deployed to Portland in order to maintain this operational tempo. DHS has been forced to reassign members of Homeland Security Investigations (HSI) Portland\u2019s Special Response Team (SRT) to support FPS, significantly impeding HSI\u2019s ability to accomplish the missions with which SRT is tasked.<\/p>\n<\/blockquote>\n Lawyers for the state of Oregon flagged this \u201cmaterial factual error\u201d in a supplement<\/a> to its request for en banc<\/em> review of the Nelson\/Bade order. They noted the centrality of the Cantu affidavit to the ruling, and pointed out that the DOJ repeated the lie at oral argument:<\/p>\n The dissent noted that defendants\u2019 declaration on the actual extent of the deployment was \u201ccarefully worded\u201d to the point of \u201cvague.\u201d (Dissent 16-21). But defendants\u2019 counsel emphasized at oral argument the \u201cmagnitude\u201d and \u201cunsustainab[ility]\u201d of having 115 FPS offices redeployed; then, when asked directly whether all 115 officers remained in Portland, counsel stated only that \u201csome\u201d had gone home but \u201cmany\u201d remained.<\/p>\n<\/blockquote>\n That looks like a deliberate attempt to mislead the court about the true state of the FPS deployment \u2014 yet another comparatively little lie in service of the much bigger one about \u201cwar ravaged\u201d Portland. And it illustrates the folly of treating the president\u2019s fact-free rantings as presumptively correct. Even with the court\u2019s deferential thumb on the scale in favor of the president, the DOJ was still forced to backfill the tiny crack left for judicial review with slurry of falsehood and deception.<\/p>\n This episode highlights the disaster of the first Ninth Circuit panel\u2019s ruling, which works from the premise that the president probably<\/em> gets to declare reality by executive fiat, and then invites the DOJ to concoct a rationale to back it up. Because like ChatGPT, the Trump DOJ will<\/em> come up with \u201cfacts\u201d to support Trump\u2019s claims \u2014 they just might not be true.<\/p>\n Whether this will wind up mattering remains to be seen. Senior Judge Sidney R. Thomas, the En Banc Coordinator for the Ninth Circuit, administratively stayed<\/a> the Nelson\/Bade order pending a vote by the full Ninth Circuit. In practical terms, that means that the Trump administration remains unable to deploy federalized national guard units to the streets of Portland until at least October 28 \u2014 and possibly longer if the court grants the motion for reconsideration. Will Trump then be allowed to flood the streets with soldiers based on an obvious lie, backed up by even more untruths?<\/p>\n As the state urged, \u201cThis Court must act swiftly to prevent defendants from attempting to benefit from their own material mistake to deploy military forces to peaceful civilian streets, contravening the rule of law and our nation\u2019s history and traditions.\u201d<\/p>\n Subscribe to read more at Law and Chaos\u2026.<\/em><\/a><\/p>\n Liz Dye<\/a>\u00a0and\u00a0Andrew Torrez<\/a>\u00a0produce the Law and Chaos\u00a0Substack\u00a0<\/a>and\u00a0podcast<\/a>.<\/strong><\/em>\u00a0You can subscribe to their Substack by clicking the logo:<\/strong><\/em><\/p>\n The post Will Ninth Circuit Care That DOJ Lied Its Face Off In Oregon Invasion Case?<\/a> appeared first on Above the Law<\/a>.<\/p>\n If there\u2019s one lesson of the Trump era, it\u2019s that the president can lie with reckless abandon and face zero consequences. The jury\u2019s still out on whether his underlings enjoy the same immunity. And by jury, we mean the Ninth Circuit Court of Appeals, which must now decide whether it matters that the Department of Justice told a lie in defense of the president\u2019s raging whopper about hordes of ANTIFA laying waste to an immigration detention center in Portland, Oregon.<\/p>\n The genesis of this conflict is fittingly ridiculous. In September, Homeland Security spokesliar Tricia McLaughlin went on Fox News<\/a> to spew nonsense about poor, beleaguered ICE agents being attacked as they went about their noble task of kidnapping every brown person they can get their hands on. Fox backed up McLaughlin\u2019s pitch with B-roll from protests in Portland five years ago<\/em>, which President Couch Potato decided was an accurate representation of the situation on the ground today. And despite the fact that the ICE facility in Portland drew only sporadic protests<\/a> this year, Trump decreed that the city would be next on the list of Democratic strongholds to involuntarily host hundreds of federalized National Guard troops.<\/p>\n The DOJ scrambled to back-formulate a legal justification for this military onslaught, and, as in so many cases lately, it wasn\u2019t too concerned about the veracity of its evidence. So now the Ninth Circuit Court of Appeals has to decide whether a comparatively little lie matters when they\u2019ve already credited the big lie it supports.<\/p>\n In a very real sense, the Ninth Circuit laid this trap for itself in earlier litigation over National Guard troops in California. In June, trial Judge Charles Breyer issued a temporary restraining order<\/a> declaring that none of the preconditions for federalizing the state militia under 10 U.S.C. \u00a7 12406<\/a> had been met: There was no invasion or rebellion in Los Angeles, and the president was not \u201cunable with the regular forces to execute the laws of the United States.\u201d<\/p>\n But a conservative panel of the Ninth Circuit, including two Trump appointees, disagreed<\/a>. Citing the brief spasm of rioting \u2014 which was quickly put down by the Los Angeles Police Department \u2014 they determined that the president made a \u201ccolorable\u201d claim that he was unable to execute the laws. The slim silver lining was that the panel in Newsom v. Trump<\/em> was unwilling to cede the field entirely to the executive branch.<\/p>\n The Department of Justice takes the position that, whenever Trump declares an emergency under \u00a7 12406, his determination is absolutely unreviewable by any court. If the president says that there is rebellion, then there is rebellion,<\/em> and no judge can decide whether he\u2019s lying or not. The original Ninth Circuit panel rejected that maximalist argument, holding that, while they were obliged to \u201cgive a great level of deference to the President\u2019s determination that a predicate condition exists,\u201d the president\u2019s determination is<\/em> subject to judicial review.<\/p>\n But deference to the president\u2019s claims, no matter how patently false, incentivizes the Justice Department to play fast and loose when called upon to invent post facto justifications \u2014 particularly this<\/em> Justice Department. And because the Ninth Circuit got the first crack, their highly deferential standard was accepted by subsequent courts, including a second panel of Ninth Circuit judges that reviewed the Oregon National Guard deployment, as well as the Seventh Circuit\u2019s review of the parallel case in Illinois.<\/p>\n Contrary to what the President says on social media, there is no \u201cWar\u201d in Portland and no \u201cICE facilities under siege from attack by Antifa and other domestic terrorists.\u201d There are, however, a lot of protesters dressed up as frogs and rainbow unicorns.<\/p>\n Nevertheless, the second Ninth Circuit panel considering Trump\u2019s federalization order in Oregon found that the president\u2019s emergency determination \u201creflects a colorable assessment of the facts and law within a range of honest judgment.\u201d<\/p>\n That panel also had two Trump appointees, including Judge Ryan Nelson who penned a concurrence endorsing the DOJ\u2019s previously-rejected assertion that the president\u2019s emergency determination is \u201cunreviewable by the federal courts.\u201d To Nelson, \u201cthe President\u2019s decision in this area is absolute,\u201d so it doesn\u2019t matter that Trump openly lies about imaginary Antifas conducting make-believe sieges.<\/p>\n As it turns out, Trump\u2019s lackeys in the DOJ have also lied. A lot<\/em>. In fact, while the Ninth Circuit was considering the Oregon federalization appeal, the DOJ admitted that one of its central claims in support of the emergency declaration was grossly inaccurate.<\/p>\n That lie came in a supporting affidavit<\/a> by Robert Cantu, the Deputy Director of the Federal Protective Services, who attested that 115 of the 776 members of his agency had been forced to surge into Portland to protect its immigration facility:<\/p>\n The sustained violence associated with the protests in Portland has required FPS Region 10 to deploy officers from the other FPS Regions. To date, 115 FPS officers have had to deploy to Portland to maintain a 24\/7 operational tempo. Removing these officers from their normal duty stations means that the buildings they are assigned to must rely on other FPS officers or the local police force to respond to law enforcement incidents. Moreover, the security related functions that the assigned officers normally perform end up being delayed.<\/p>\n<\/blockquote>\n Judge Nelson and Judge Bridget Bade, the two Trump appointees considering the appeal, cited Cantu\u2019s declaration 18 times in the majority opinion, which bemoaned the \u201clack of support\u201d from local law enforcement and the drain on operational capacity of federal law enforcement nationwide.<\/p>\n \u201cThe record reflects that 115 FPS officers\u2014nearly 25% of FPS officers nationwide\u2014were diverted to Portland\u201d they tut-tutted. \u201cThe President may reasonably rely on this evidence in determining whether he is unable to execute the law.\u201d<\/p>\n In dissent, Judge Susan Graber, a Clinton appointee, noted that something seemed fishy about Cantu\u2019s \u201cvague, carefully worded assertion.\u201d<\/p>\n Crediting his assertion, we know that a total of 115 officers from elsewhere were deployed in Portland during the preceding four months. The record contains no information about how many officers were in Portland at any given time. For all we know, FPS sent a different 8 officers to Portland every week for 14 or 15 weeks, meaning that Portland\u2019s drain on FPS\u2019s staff from elsewhere on any particular day was 8 people, not 115. Indeed, the only description in the record of a \u201c[s]urge\u201d in officers was the deployment of 8 officers. The fact that there were 26 FPS officers on duty on September 6, as the majority\u2019s order emphasizes, says nothing about whether any or all of those individuals were from somewhere other than Portland. The record does not reveal the number of local FPS officers.<\/p>\n<\/blockquote>\n The majority all but mocked Judge Graber, scoffing the she \u201conly reaches a different conclusion by characterizing this evidence as \u2018staffing difficulties\u2019 and committing the same error as the district court in discounting, minimizing, and discrediting [the government\u2019s] undisputed evidence on this point.\u201d<\/p>\n Except that Judge Graber was absolutely right to discount, minimize, and discredit the government\u2019s evidence. In discovery, FPS admitted<\/a> that it did exactly<\/em> what Graber suspected, rotating different officers through Portland each month and aggregating the total to make it appear as if the agency was dedicating a quarter of its resources to maintaining order in Portland. In reality, there are four agents permanently stationed in Portland, and FPS deployed waves of 27, 31, and 29 agents from other regions. In the month leading up to Trump\u2019s emergency declaration, a mere 20 agents were pulled in. That does not support an honest judgment that Portland was under siege.<\/p>\n And the government repeated this lie in its brief opposing en banc<\/em> reconsideration<\/a>:<\/p>\n FPS, which is charged with protecting the Lindquist Building, is stretched to the point of collapse. The sustained violence and security risks have required FPS to provide 24\/7 protection for the building, a task it is simply not resourced to accomplish. To date, 115 FPS officers have deployed to Portland in order to maintain this operational tempo. DHS has been forced to reassign members of Homeland Security Investigations (HSI) Portland\u2019s Special Response Team (SRT) to support FPS, significantly impeding HSI\u2019s ability to accomplish the missions with which SRT is tasked.<\/p>\n<\/blockquote>\n Lawyers for the state of Oregon flagged this \u201cmaterial factual error\u201d in a supplement<\/a> to its request for en banc<\/em> review of the Nelson\/Bade order. They noted the centrality of the Cantu affidavit to the ruling, and pointed out that the DOJ repeated the lie at oral argument:<\/p>\n The dissent noted that defendants\u2019 declaration on the actual extent of the deployment was \u201ccarefully worded\u201d to the point of \u201cvague.\u201d (Dissent 16-21). But defendants\u2019 counsel emphasized at oral argument the \u201cmagnitude\u201d and \u201cunsustainab[ility]\u201d of having 115 FPS offices redeployed; then, when asked directly whether all 115 officers remained in Portland, counsel stated only that \u201csome\u201d had gone home but \u201cmany\u201d remained.<\/p>\n<\/blockquote>\n That looks like a deliberate attempt to mislead the court about the true state of the FPS deployment \u2014 yet another comparatively little lie in service of the much bigger one about \u201cwar ravaged\u201d Portland. And it illustrates the folly of treating the president\u2019s fact-free rantings as presumptively correct. Even with the court\u2019s deferential thumb on the scale in favor of the president, the DOJ was still forced to backfill the tiny crack left for judicial review with slurry of falsehood and deception.<\/p>\n This episode highlights the disaster of the first Ninth Circuit panel\u2019s ruling, which works from the premise that the president probably<\/em> gets to declare reality by executive fiat, and then invites the DOJ to concoct a rationale to back it up. Because like ChatGPT, the Trump DOJ will<\/em> come up with \u201cfacts\u201d to support Trump\u2019s claims \u2014 they just might not be true.<\/p>\n Whether this will wind up mattering remains to be seen. Senior Judge Sidney R. Thomas, the En Banc Coordinator for the Ninth Circuit, administratively stayed<\/a> the Nelson\/Bade order pending a vote by the full Ninth Circuit. In practical terms, that means that the Trump administration remains unable to deploy federalized national guard units to the streets of Portland until at least October 28 \u2014 and possibly longer if the court grants the motion for reconsideration. Will Trump then be allowed to flood the streets with soldiers based on an obvious lie, backed up by even more untruths?<\/p>\n As the state urged, \u201cThis Court must act swiftly to prevent defendants from attempting to benefit from their own material mistake to deploy military forces to peaceful civilian streets, contravening the rule of law and our nation\u2019s history and traditions.\u201d<\/p>\n Subscribe to read more at Law and Chaos\u2026.<\/em><\/a><\/p>\n Liz Dye<\/a>\u00a0and\u00a0Andrew Torrez<\/a>\u00a0produce the Law and Chaos\u00a0Substack\u00a0<\/a>and\u00a0podcast<\/a>.<\/strong><\/em>\u00a0You can subscribe to their Substack by clicking the logo:<\/strong><\/em><\/p>\n If there\u2019s one lesson of the Trump era, it\u2019s that the president can lie with reckless abandon and face zero consequences. The jury\u2019s still out on whether his underlings enjoy the same immunity. And by jury, we mean the Ninth Circuit Court of Appeals, which must now decide whether it matters that the Department of […]<\/p>\n","protected":false},"author":3,"featured_media":135880,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-135893","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/10\/law-and-chaos-logo-liz-dye-300x153-jWmhCw.jpg?fit=300%2C153&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/135893","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=135893"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/135893\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/135880"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=135893"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=135893"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=135893"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Antifa Fantasies<\/h2>\n
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Lies, Lies, Lies<\/h2>\n
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