Appeals court will reconsider decision that allowed Trump to deploy National Guard troops to Portland

By Andy Rose, Danya Gainor, CNN

(CNN) — The appeals court that paved the way for President Donald Trump to deploy National Guard troops in Portland while the state’s legal case against the administration plays out announced Tuesday it will reconsider its decision.

The Ninth Circuit Court of Appeals agreed to an “en banc rehearing,” where a new set of judges will be assigned to consider the case. The original decision was made by a three-judge panel, but the en banc panel will have 11 judges. A date for the hearing was not set.

Tuesday evening’s decision means the Trump administration will continue to be barred from deploying the National Guard to Portland, four days after a federal judge in Chicago extended an order blocking Guard troops there.

Trump has urged the Supreme Court to let him send in the National Guard to Democratic-led cities in a high-stakes showdown over presidential power.

The Ninth Circuit Court of Appeals’ October 20 decision had frozen a temporary restraining order issued earlier this month by US District Judge Karin Immergut that blocked the Trump administration from federalizing and deploying members of Oregon’s National Guard in Portland. Now, that order will remain in effect as the court reconsiders.

Oregon and Portland officials jointly sued on September 28 after Trump declared he was sending 200 Oregon National Guard troops to the city, and Immergut’s two temporary orders blocking those efforts closely followed.

On Wednesday, a three-day hearing before Immergut is set to begin over whether to impose a permanent injunction barring sending National Guard troops to Oregon.

Although Trump ordered a total of 800 guardsmen from Oregon, California and Texas to be on standby for deployment to Portland, the administration’s attorney said in Friday’s hearing it doesn’t plan to deploy more than 200.

“I think that the Oregon people are ready to deploy … as soon as the court addresses the (restraining order),” Department of Justice attorney Jacob Moshe Roth added.

Trump administration says it overstated number of agents in Portland

The day before the federal appeals court agreed to reconsider the case en banc, the Trump administration made what local leaders fighting a deployment are casting as a remarkable admission:

Part of its testimony justifying the need for troops was wrong.

“We deeply regret these errors,” wrote Justice Department attorney Andrew M. Bernie in a Monday letter to the Ninth Circuit Court of Appeals filed in the court record.

In Oregon, “115 (Federal Protective Service) officers have had to deploy to Portland” due to monthslong protests outside an Immigration and Customs Enforcement facility there, an official with that agency – which provides security to government-owned properties – said earlier this month in an affidavit in support of a troop deployment.

“The continued deployment of FPS officers in response to the immigration protests stretches an already thin force beyond what is safe and effective,” Regional Deputy Director Robert Cantu said in the affidavit.

Those 115 officers amounted to “nearly a quarter of the agency’s entire FPS capacity,” Trump administration attorneys originally said.

However, this “statement was incorrect,” Bernie acknowledged in the Monday letter, noting only about half that number were agents sent out to provide security.

The admission calls into question a key part of the president’s justification for deploying the guard: “FPS, which is the regular security force charged with protecting the (ICE) Building, is stretched to the point of collapse,” the Trump administration argued in its original court filing.

Dissenting judge had questioned Trump administration details

The conservative majority on the appeals panel in the Portland case criticized Immergut, a Trump appointee, in its decision earlier this month for failing to take the administration’s claims about Portland security needs – specifically, the numbers Cantu cited – at his word.

“Our colleague in dissent and the district court cannot summarily dismiss Director Cantu’s sworn and undisputed statements,” the majority wrote in an October 20 filing.

Now, the Trump administration says many of the 115 agents cited by Cantu were effectively double counted, with some deployed more than once. The actual number of FPS agents sent to Portland was 86, and only 65 were “inspectors” whose primary job is providing security, Bernie’s letter says.

In her dissent, US Appeals Court Judge Susan Graber said she was unimpressed with Cantu’s affidavit, considering it vague.

“We do not know why the government chose not to file a declaration describing the relevant details,” the Clinton appointee wrote in her October 20 dissent. “But it cannot submit an ambiguous assertion and then ask us to interpret that assertion in its favor.”

Still, despite the erroneous filing, even the smaller number of agents shows “the surge of FPS personnel in response to violence and unrest is unsustainable” and Trump has justification to send in the National Guard, Bernie says in the Monday letter.

“Although defendants regret any unintended ambiguity about the number of deployed FPS officers at any given time, there is no basis for concluding that any such ambiguity was the basis for the majority’s decision,” the attorney wrote.

The appeals court stay this month did not rely solely on the number of agents. “The statute … does not limit the facts and circumstances that the President may consider” in deciding whether ordinary agents cannot enforce federal law without military help, judges wrote.

Oregon told court Trump administration’s math didn’t add up

The Department of Justice only discovered the mistake after it was raised by attorneys for plaintiffs Oregon and Portland, Bernie’s Monday letter says.

The plaintiffs in their own letter to the court noted the numbers in Trump administration filings conflicted with each other, ultimately showing a maximum of 31 FPS officers in the field at any one time.

“This 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’s history and traditions,” Oregon Attorney General Dan Rayfield wrote.

For now, a separate restraining order from Immergut prevents National Guard troops from any state from being deployed in Portland. Following a hearing last week on the federal request to end that restraining order, the judge has not yet made a decision.

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