The Judge Standing up to Trump’s Portland Invasion

“Freedom,” wrote George Orwell in Nineteen Eighty-Four, “is the freedom to say two plus two make four. Once that is granted, all else follows.”

But what if the test is whether a president can add two and two and get in the neighborhood of four? What if the president says 2+2=10,000?

Is that close enough for government work?

Federal Judge Karin J. Immergut of the District of Oregon, 64, confronted this question—which is of a quality strange to laypeople with common sense but, alas, all-too-familiar to lawyers—in a hearing Friday in the case of Oregon v. Trump, a challenge by the state of Oregon and the city of Portland to Trump’s commandeering of 200 members of the Oregon National Guard for the purpose of subduing Portland. The case calls to mind a different Orwell quote: “To see what is in front of one’s nose needs a constant struggle.”

What is in front of our noses is that Portland, Oregon, is an average American city, or I think, a city where, for many people, the living is better than in an “average city.” Despite some classic urban problems—persistent homelessness, the high cost of housing, a falling crime rate that ranks 56^th in the nation but makes some neighborhoods unsafe, traffic, and political divisions that sometimes become street brawls—the only profound difference between Portland and where you live is that the chief executive of the United States has declared war on this city and ordered federal forces to invade it. Trump has done that under a statute that requires two plus two to equal four; anyone with eyes can see that he is proclaiming that zero plus zero equals Defcon One.

Many Americans, including the eager Fox News watcher in the White House, are convinced that Portland is a hellscape of arson and violence.

It’s not. Over the weekend, Portland’s 50-year-old Saturday Market unfolded as usual on the banks of the Willamette River; 9,000 people ran the Portland Marathon; the Portland Thorns soccer team beat the Bay Football Club 2-1 in front of a nearly 17,000 fans, and Powell’s City of Books, perhaps the world’s greatest bookstore, was jammed full of readers scanning bestsellers while sipping lattes and kombucha. True, Treebeerd’s Taproom did not open until 2 p.m. on Friday, but on investigation, it was determined that Treebeerd’s Taproom never opens until 2 p.m. Also on Saturday night, several hundred protesters marched to the city’s ICE headquarters to decry the treatment of immigrants. ICE personnel handled the protest just fine with tear gas, and even managed to send two 84-year-old demonstrators to the hospital after beating them to the ground.

And after being served with a federal court order forbidding him from taking over Oregon National Guard troops and sending them in, Trump, as he often does, decided to go to court by sending in California Guard troops to do the same work.

Could President Trump really think Portland is Hell? Or to put it differently, could a reasonable Donald Trump, if such a thing can be imagined, really think it is?

The issue is important because Trump’s order to commandeer the Oregon guard personnel is based on 10 U.S.C. 10246, a statute that grants the president power to “federalize” a state Guard when the nation has been “invaded or is in danger of invasion by a foreign nation;” when “there is a rebellion or danger of a rebellion” against the federal government; or “the president is unable with the regular forces to execute the laws of the United States.”

In this situation, those conditions are the equivalent of George Orwell’s sum of four. But what is in front of one’s nose is that, despite some pretty wild claims by President Trump, Attorney General Pam Bondi, and Secretary of Homeland Security Kristi Noem, they do not prevail—and indeed, that nothing like them prevails—on the streets of Portland.

That parallax—the disjuncture between the world as it is to any reasonable observer and the world as proclaimed by Trump—was at issue in Courtroom 15a of the Mark O. Hatfield United States Courthouse on Friday, October 3, before Judge Karin J. Immergut. (Hatfield was a Republican U.S. Senator from the before times.) One feels compassion for any judge maintaining a straight face when exposed to the impudent mummery U.S. government lawyers have displayed during the second Trump administration.

Judge Michael Simon, a Democratic appointee whose wife, Suzanne Bonamici, is a Democratic member of the U.S. House, had only the day before been asked by the federal government to recuse himself to avoid the “appearance of partiality.” Judge Immergut, a former U.S. Attorney appointed by George W. Bush, was appointed to the bench by Donald Trump, which (given that he was a named party in the case) might also call for recusal; the state of Oregon did not request it. The last minute substitution gave Immergut 24 hours to master a record totaling several hundred pages of declarations, and then apply the only decision in American history construing Section 12406, a 10,000-word blockbuster from the Nineth Circuit announced less than three months ago, in a challenge by California Governor Gavin Newsom to a similar order from Trump sending National Guard soldiers onto the streets of Los Angeles.

The heart of the Ninth Circuit’s decision in Newsom v. Trump was that the judge had to decide not whether 2+2 makes four but whether it makes, in essence, roughly four—not whether the drastic conditions of the statute actually exist, but whether a reasonable president might think they exist: Whether, that is, a presidential order federalizing the Guard “reflects a colorable assessment of the facts and law within a ‘range of honest judgment.’”

Anybody but Trump probably would agree that right now there is very little danger that Portland will be invaded by a “foreign nation.” But is there “a rebellion or danger of a rebellion” because a small group of protesters has occasionally blocked ICE vehicles? Is the president “unable with the regular forces to execute the laws of the United States” because the Department of Homeland Security has had to tap law enforcement personnel from other cities? Does Portland need federalized National Guard because—well—a shooter attacked an Immigration and Customs Enforcement facility in Dallas?

That was perhaps the weakest argument proffered Friday by Eric Hamilton, the attorney sent from the Justice Department to explain that a condition of chaos, war, or rebellion prevails in Portland that is so bad that military force is needed to—to what? Trump, by contrast, has promised that the troops will attack “paid agitators” with “full force” and “when we go there, if we go to Portland, we’re gonna wipe ’em out. They’re gonna be gone and they’re gonna be gone fast. . . .”

That sounds pretty bad. In front of our noses is a call for blood in the streets.

What could justify a military assault on an American city—admittedly, a blue city in a blue state, but according to the Constitution as heretofore construed, a part of the United States inhabited by Americans? Do these facts support “a colorable assessment of the facts and law within a ‘range of honest judgment’: that the Republic is on the verge of collapse?

Again, an ordinary American not impaired with a law degree might say that “honest judgment” and “Donald Trump” fit together uneasily in one phrase. Still, again, the judge’s task is to imagine a reasonable Donald Trump and apply the “honest judgment” of such a mythical beast. It was the job of Hamilton, the lawyer sent from the DOJ, to defend the deployment and that judgment as, if not reasonable, at least not barking mad.

Immergut asked Hamilton how a court could determine Trump’s “colorable assessment.” Hamilton pointed to a Truth Social Post by Trump on September 27:

At the request of Secretary of Homeland Security, Kristi Noem, I am directing Secretary of War, Pete Hegseth, to provide all necessary Troops to protect War ravaged Portland, and any of our ICE Facilities under siege from attack by Antifa, and other domestic terrorists. I am also authorizing Full Force, if necessary. Thank you for your attention to this matter!

Immergut instead mildly asked whether a social media post could count as a presidential assessment. Her questions at the hearing reflected a somewhat tighter definition of “colorable assessment of the facts” than has been adopted by the Administration, When she asked Hamilton to show how the facts on the ground in Portland fit the statute’s standard of disorder, he pointed out among other things that there had been violence in California and an armed attack on an ICE facility in Dallas.

Immergut asked how events between 1,000 and 2,000 miles from Portland could justify sending troops to Portland? For that matter, how could the actual events in Portland—sporadically unruly demonstrations before the ICE facility near the city’s waterfront—justify deployment when they had happened months before the order?

Hamilton’s response was a dire warning: “violent and cruel radicals” were at work, and their activities amounted to a rebellion against the government that any president would seek to snuff out. As for the rest of his explanation, I haven’t heard the word “agitator” used so often since the 1960s, when James J. Kilpatrick, the editor in my hometown of Richmond, Virginia., loosed his poison pen on Dr. Martin Luther King Jr. Judge Immergut did not point out that being an “agitator”—or indeed that “agitation” itself—not does not constitute a prerequisite to invoking Sec. 10246 but is actually First Amendment activity protected by the Constitution. But I suspect she figured it out—because the day after the hearing, she ruled federalizing the Guard was illegal.

Considering the events allegedly justified the order, she noted that they had occurred three months before the order. And in addition, they did not seem to endanger the safety of the state:

“The first involved protesters setting up a makeshift guillotine to intimidate federal officials; the second involved four people shining overpowered flashlights in the eyes of drivers; the third involved someone posting a photograph of an unmarked ICE vehicle online; and the last involved additional drivers having flashlights shone in their eyes.”

These events were “inexcusable” but “nowhere near the type of incidents that cannot be handled by regular law enforcement forces.” And Trump, she wrote, was using this flimsy pretext to violate the principle of equal “sovereignty under the Constitution” proclaimed by Chief Justice John Roberts in Shelby County v. Holder. In that case, “equal sovereignty” allowed an Alabama county to burden minority voting rights; under the goose-gander principle, it also allowed Oregon to police “agitators” on its own streets.

The answer is four, she seemed to be saying. Protests, even unruly ones, are not “invasion” or “rebellion”; for a president to be “unable” to enforce federal law, the evidence must show something more than inconvenience to law enforcement, which the government could barely establish. Social media posts are not reasoned determinations; events in June are not a September crisis, and Dallas murders do not turn Oregonians into outlaws.

Immergut’s opinion was polite, but to a reader, it evoked a quote from the late Federal Appeals Court Judge Henry Friendly: “Judges are not required to exhibit a naivete from which ordinary citizens are free.”

DOJ may pretend that Trump’s incoherent ravings are colorable, but…four, goddamnit!!

They are not close to four but do embody a different principle. To quote Orwell again, “The solid world exists, its laws do not change. Stones are hard, water is wet, objects unsupported fall towards the earth’s centre.”

And as surely as stones are hard, this president grasps power and brushes aside the law.

And he lies. Oh, Mercury, patron of thieves, does he lie, over and over and over, daring those who hear him to note that his lies are not only not consistent with each other but don’t even make any sense.

When a judge like Immergut dares to defy him, Trump blusters and threatens and attacks. After Immergut’s decision on Friday, he said, she “ought to be ashamed of herself” because “Portland is burning to the ground.” He added, Poor baby, “I wasn’t served well by the people that picked the judge.” And any time a decision goes against him, he has his minions work around it. As of Sunday night, Immergut held an emergency hearing on the state’s request that she extend her order to ban the California Guard from occupying Portland as well.

At 8 p.m. PDT, Immergut extended her temporary restraining order to cover deployments of California and Texas Guard troops as well. She did not seem best pleased with DOJ’s Hamilton: “You have to have a colorable claim that Oregon conditions warrant deploying the National Guard, but you don’t. We went over it.”

As Adam Klasfeld, the editor-in-chief of allrisenews, reported on Bluesky, Immergut asked Hamilton whether changing the Guard unit being sent complies with her order. Hamilton responded, “I’m not a policy-maker.” “You’re a lawyer,” the judge replied.

She did not add “for now.”

Judges are given independence precisely so they need not exhibit the naivete required to believe that Donald Trump ever means what he says or even understands what he is saying.

Admittedly, some judges are that naïve or cynical.

Six sit on the nation’s highest court.

Thankfully, there are still federal judges who can perform simple addition. We will find out if that integrity will do her, or those of us who live in Oregon, any good at all when up against this administration’s lawless thuggery.