Trump administration goes to court to defend Chicago, Portland National Guard deployment efforts

By Dareh Gregorian, Gary Grumbach, Selina Guevara, Samira Puskar and Alicia Victoria Lozano, NBC News

NEW YORK (NBC News) -- Challenges to President Donald Trump's efforts to deploy National Guard troops in states that don't want them were heard in two different courts Thursday, and got two very different receptions.

While judges in the cases did not immediately issue rulings, a federal judge who heard arguments in Chicago appeared open to issuing a temporary restraining order blocking the National Guard from being deployed in Illinois after a lawyer for the Justice Department couldn't answer questions about what they'd be doing.

A three-judge appeals court panel in California, meanwhile, appeared likely to be willing to grant the Trump administration’s request to pause a lower court ruling that blocked its efforts to deploy the National Guard to the streets of Portland, with one of the judges suggesting the president's decision-making should get more deference.

One of the 9th U.S. Circuit Court of Appeals judges in the Portland case said they would try to issue a ruling as soon as possible, but did not give a timeframe. U.S. District Judge April Perry, who's presiding over the Chicago case, did not say when she would rule, but ordered both sides to come back to court later Thursday.

Perry, a Biden nominee, seemed skeptical of some of the Justice Department's claims about the need to deploy the guard in the country's third most populous city, and questioned whether protests around an ICE facility had gotten violent because of how federal agents were treating protesters.

She also pressed the lawyer for DOJ, Eric Hamilton, on what the guard would be doing in Chicago and whether members would be armed.

"What are they being trained and deployed to do?" the judge asked at one point, while also noting the parameters of their duties are vague. "I am very much struggling to find where this would stop," Perry said.

Hamilton said they were being deployed on a "federal protective mission," but that he did not know what their exact duties would be.

During oral arguments in the Portland case, the judges — two Trump appointees and a Clinton appointee — expressed concerns about the ability of a lower court judge to make decisions about a military deployment, and suggested that the city and state had not shown enough deference to the president.

“It just seems a little counterintuitive to me that the City of Portland can come in and say no, you need to do it differently,” Judge Ryan D. Nelson, one of the Trump nominees, said.

The attorney for Oregon, Stacy Chaffin, said presidential deference "has a limit, and that limit is this case." That's because Trump's rationale for calling up the troops — including that Portland is "war ravaged" — is "untethered to the facts," she said.

Eric McArthur, arguing for the DOJ, said the mobilization was both legal and necessary to defend against ongoing chaos outside Portland’s immigration processing facility. Federal officials have been forced to call in back up as protesters block cars, spit on authorities and, in one instance, lit a fire outside the facility, he said.

“These are violent people,” he told the judges. “The president is entitled to say enough is enough and bring in the National Guard to reinforce the regular forces,” he added.

The hearings — in Chicago and San Francisco — began around noon ET in courthouses about 2,000 miles apart.

“We’re looking for the courts to do the right thing,” Illinois Gov. JB Pritzker, a Democrat, told reporters Wednesday.

Trump has defended his actions in both states. "Everything we’re doing is very lawful. What they’re doing is not lawful," he said at the White House later Wednesday.

Abigail Jackson, a spokeswoman for the White House, said the president “will not turn a blind eye to the lawlessness plaguing American cities and we expect to be vindicated by the Court.”

Illinois on Monday sued, seeking to block the administration from deploying federalized National Guard troops on the streets of Chicago, contending it's illegal, unconstitutional and unnecessary.

Trump ordered the deployment over the weekend. U.S. Northern Command said that 500 National Guard members have been mobilized — 300 from Illinois and 200 from Texas — and that some of the troops from Texas were on duty "in the greater Chicago area" as of Wednesday night.

“These forces will protect U.S. Immigration and Customs Enforcement and other U.S. Government personnel who are performing federal functions, including the enforcement of federal law, and to protect federal property,” Northern Command said in a statement.

Members of the Texas National Guard were spotted Thursday morning at the Immigration and Customs Enforcement facility in the Chicago suburb of Broadview, NBC Chicago reported. The village told the station that 45 members of the Texas guard had arrived overnight.

The site is one of two that the military said in a court filing that it plans on sending troops to in the coming days. The other site is a federal courthouse in Chicago on Friday "due to two high profile cases involving DHS activities and personnel."

The state's lawsuit argues that there's no need for troops in Chicago and that the administration has been trying to provoke unrest by increasing the presence of federal law agents who are using "unprecedented, brute force tactics for civil immigration enforcement."

Those tactics include shooting "chemical munitions at groups that included media and legal observers" at an ICE facility outside Chicago and staging a dramatically produced raid at an apartment building in which agents rappelled down from Black Hawk helicopters.

“The community’s horror at these tactics and their significant consequences have resulted in entirely foreseeable protests,” the suit said.

“The deployment of federalized National Guard, including from another state, infringes on Illinois’s sovereignty and right to self-governance" and "will cause only more unrest," it added.

At a hearing in a different case in federal court in Chicago Thursday, a judge signed a temporary restraining order in favor of a group of journalists, protesters and religious practitioners who filed suit earlier this week over federal agents’ “excessive” use of force and threats against what plaintiffs’ actions described as reporting, “peaceful” protest, and prayer.

U.S. District Judge Sara Ellis said the evidence in the case shows federal agents’ actions against protesters and others “clearly violate the Constitution,” and “makes clear whatever lawlessness is occurring is not occurring by protesters.”

She issued an order blocking agents from arresting reporters and protesters without cause, and from using "riot control weapons" on "members of the press, protesters, or religious practitioners who are not posing an immediate threat to the safety of a law enforcement officer or others."

“My hope is that in entering this TRO, and providing this guidance, that we will no longer have the issues that we’ve been experiencing in the Northern District of Illinois,” the judge said.

The White House has maintained that Trump is trying to keep American cities and federal personnel safe. Trump said this week that if the courts wind up derailing his efforts to use the National Guard, he could invoke the Insurrection Act, which would empower him to use the U.S. military domestically.

"The Trump administration is committed to restoring law and order in American cities that are plagued by violence due to Democrat mismanagement. And President Trump will not stand by while violent rioters attack federal law enforcement officers," the White House's Jackson said in a statement Wednesday.

The administration made similar arguments to the 9th in San Francisco, asking the panel to pause a federal judge's order in Oregon over the weekend blocking the state's National Guard from being federalized and deployed.

The "extraordinary" order by U.S. District Judge Karen Immergut “improperly impinges on the Commander in Chief’s supervision of military operations, countermands a military directive to officers in the field, and endangers federal personnel and property,” Justice Department attorneys contended in their court filing.

They also noted that the 9th Circuit blocked a similar restraining order this year involving National Guard troops in Los Angeles and held then that the president's judgment about whether troops are needed should get "a great level of deference."

Immergut, a Trump appointee, said in her order that the Portland case is different from the California one, in part because it appears Trump was acting in bad faith with his exaggerated claims of violence in the city, including that it was "war ravaged" with "ICE Facilities under siege from attack by Antifa" and "crazy people" who "try to burn down buildings, including federal buildings" every night.

While there had been some violent protests in June, demonstrations "were not significantly violent or disruptive in the days — or even weeks — leading up to the President’s directive on September 27," Immergut wrote, describing the protests as mostly "small and uneventful."

"On September 26, the eve of the President’s directive, law enforcement 'observed approximately 8-15 people at any given time out front of ICE. Mostly sitting in lawn chairs and walking around. Energy was low, minimal activity,'” her order said.