As the state of Oregon and the Trump administration await a ruling from a federal appeals court on whether the president can send Oregon National Guard troops to Portland, each side is at odds about how the state’s underlying lawsuit should proceed.
The administration has asked the 9th U.S. Circuit Court of Appeals to put a hold on U.S. District Judge Karin J. Immergut’s temporary order halting deployment of the Oregon troops, as it appeals the order.
The federal government’s lawyers contend that Immergut has no authority to hold a future hearing to consider a longer-lasting injunction to block the deployment or preside over a trial on the lawsuit until its 9th Circuit appeal runs its course.
Lawyers for the state and Portland oppose any delay, and say Immergut can proceed to preside over their Sept. 28 lawsuit, regardless of how the 9th Circuit rules on Immergut’s temporary restraining order.
The two sides also are arguing about whether the state and city can compel the White House to turn over records about the need for the Guard deployment as part of the lawsuit.
The state and city filed their lawsuit on Sept. 28, hours after Defense Secretary Pete Hegseth notified Gov. Tina Kotek that the administration was mobilizing 200 Oregon troops for 60 days to protect the U.S. Immigration and Customs Enforcement building and officers in Portland from protests.
Immergut has set a tentative Oct. 29 date for a combined hearing on a potential preliminary injunction and trial on the merits of the lawsuit.
“No law divests this Court of jurisdiction over the upcoming consolidated preliminary injunction hearing and trial,” argued Scott Kennedy, Oregon senior assistant attorney general, in a status report filed in U.S. District Court Monday.
Lawyers for Oregon and Portland urged Immergut to set a phone conference Tuesday or Wednesday to discuss how to proceed.
Meanwhile, both sides continue to await a limited ruling by the 9th Circuit on the Trump administration’s request for a hold on Immergut’s temporary restraining order pending the federal government’s full appeal of the order.
Immergut issued the 14-day restraining order Oct. 4 after finding that President Donald Trump lacked any legal justification to mobilize troops under the federal code’s Title 10, Section 12406. She found no threat of rebellion exists in Portland, that local, state and federal law enforcement can handle the protests and the federal government is able to enforce its laws with “regular forces.”
Immergut also said Trump’s actions also likely violated the 10th Amendment, which protects the state’s sovereign interests and says that powers not delegated to federal officials are reserved “to the States.”
U.S. Justice Department lawyers contend that Immergut has “no jurisdiction” to hear arguments on the two central issues – the federal code and the 10th Amendment – until the 9th Circuit weighs in on those legal claims that arose in the restraining order.
“The Ninth Circuit’s guidance on the Section 12406 and the Tenth Amendment claims makes eminent sense because the Ninth Circuit will soon provide guidance on the proper framework for adjudicating those claims,” Michael J. Gerardi, senior trial counsel for the Justice Department’s Justice’s civil division, wrote in Monday’s status report.
Gerardi also said Immergut shouldn’t be able to hold a trial on the remaining claims, including the state’s contention that that federal government violated the Posse Comitatus Act, because National Guard troops aren’t in Portland yet and haven’t engaged in any activity under federal control due to Immergut’s restraining order.
The act prohibits the use of the military for domestic purposes and bars military forces from direct “involvement in the execution of laws” or actions that “pervade the activities of civilian authorities.”
If Immergut chooses to move forward, the federal government suggests that she consider motions from each side on whether to allow the lawsuit to proceed to trial.
WHITE HOUSE RECORDS
Both sides also differ on whether the state and city can seek documents from Trump and the White House as part of the evidence discovery phase of the case.
Lawyers for the state and Portland served the federal defendants in the case, including Trump, Hegseth and Homeland Security Secretary Kristi Noem, with requests to produce documents last Thursday.
Lawyers for the state and city noted that Eric Hamilton, a federal government lawyer, pointed to the president’s Truth Social post on Sept. 27 describing the city as “War ravaged” and the need to protect ICE facilities “under siege from attack by Antifa and other domestic terrorists.”
Then when Immergut pressed Hamilton if he was relying on the president’s social media post as justification for troops, he said Trump’s post suggested there had been “discussions between the president and his subordinates about this decision.”
The state of Oregon and Portland argue that presidential privilege is not absolute and Hamilton “opened the door” to seeking discovery within the White House and Executive Office of the President, according to Kennedy’s status report.
The state and city are seeking from Trump, Hegseth and Noem any documents that describe a “danger of a rebellion” against the U.S. government, any instance the president was “unable with regular forces” to execute federal laws in Portland and all communications within federal agencies or between federal agencies related to protests, potential security risks or unlawful activity at or near the ICE facility in Portland since June 1.
The federal government countered that allowing such discovery would amount to an “improper intrusion on the separation of powers.”
“Defendants will not be searching records within the White House or the Executive Office of the President because the discovery requests contravene ‘(t)he high respect that is owed to the office of the Chief Executive,” Gerardi responded.
He added that no such discovery was allowed in lawsuits challenging National Guard deployment in California and the District of Columbia.
Lawyers for Oregon and Portland also signaled they may want to call Robert Cantu, deputy director of the Federal Protective Service Region 10 that covers Oregon, Washington, Idaho and Alaska, and Camilla H. Wamsley, the Seattle-based field office director for U.S. Immigration and Customs Enforcement’s Enforcement and Removal Operations, as witnesses at a future hearing.
Cantu wrote in a sworn declaration to the court that National Guard troops, if deployed to the ICE building, would provide Federal Protective Service officers with “direct support related to federal facility protection, access control and crowd control measures.”
Wamsley, in her sworn declaration to the court, had said ICE officers have been assaulted with rocks, bricks and incendiary devices, including a lit flare thrown at the ICE building in June. Protesters spray painted direct threats against ICE officers on the building, and have assembled at times a mock guillotine outside, she wrote in her declaration.
If Immergut proceeds to hold future hearings, the U.S. Justice Department lawyers asked that no depositions be allowed of witnesses and urged the judge to rely on witnesses’ sworn depositions provided to the court.
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