For over a year, I have written and testified about the investigation of what really occurred in the clearing of the Lafayette Park. Much of this debate has focused on the motive behind the federal operation. University of Texas professor and CNN contributor Steve Vladeck is one of those who insisted publicly that Barr ordered federal officers “to forcibly clear protestors in Lafayette Park to achieve a photo op for Trump.” After I discussed new developments in court over the protests yesterday, Vladeck lashed out to accuse me of being one of Trump’s defenders and a “tear gas” denier in the Lafayette Park controversy. Since that tweet got traction with some on social media, I wanted to lay out the actual facts on the tear gas controversy.
Yesterday, I noted that the D.C. government is in court seeking to dismiss a lawsuit by Black Lives Matter and other litigants over the protests around Lafayette Park. The District now admits that it used tear gas against protesters that night to enforce the curfew imposed by Mayor Muriel Bowser. The Bowser Administration claims that the use of such tear gas was reasonable. I will be discussing that change today in a column.
In response to my posting of the news article, Vladeck wrote “Just a reminder that Turley was one of the many defenders of Trump pushing the ‘it wasn’t tear gas’ baloney.”
“Just as a reminder”, Vladeck left out a few salient facts.
First, I denounced the level of force used in Lafayette Park on that very night. Moreover, not long after the operation, I also testified in Congress to call for an investigation and laid out areas of specific inquiry for the House, including whether federal officers used tear gas. However, confirming the use of tear gas versus pepper balls is not material because I criticized the use of force even if pepper balls were used.
Second, I did make what I described as a “lesser point” over what irritant was technically used in the federal operation. It is clear that pepper balls were used. You can see the use of pepper balls in the videotapes that were played on television. However, not only did I publicly discuss countervailing allegations of the use of tear gas by the Trump Administration, I consistently noted that it does not matter legally or practically. That month, I repeated this point in my testimony:
If the government is found to have told the truth about providing warnings and a reasonable opportunity for dispersal, there remains the question of the means used for the clearing operation. On this point, there is a factual dispute over the use of what witnesses described as “tear gas.” Attorney General Barr has said that he did not give the order to disperse the crowd but supported the decision made by Park Police to use dispersal tactics if necessary. He and the Park Police insisted that no tear gas or “OC Skat shells” were used in the operation as opposed to smoke canisters and pepper balls, though a spokesman later said that pepper spray has the same effect as tear gas. The debate has turned into a debate over the colloquial versus technical uses of the term “tear gas,” which may not be determinative to our analysis. Officials insist that they did not deploy CN and CS (or 2-chlorobenzalmalononitrile products), defined by the Centers for Disease Control and Prevention as the “most common” forms of tear gases. The government refers to “pepper spray” as a “riot control agent.” One photo purportedly shows a clearly labeled “Skat Shell OC.”22 Oleoresin Capsicum refers to an irritant derived from pepper plants but it has the same effect of what people associate with tear gas. Congress should be able to confirm if the Park Police has misrepresented the devices used in the operation. However, the agencies have continued to maintain, including in communications with Congress, that no tear gas was used in the operation.
For the purposes of legal analysis, the technical distinction may prove less important to the conclusions. Courts often group the use of tear gas and pepper spray together in court orders.
Third, I did not defend Trump over Lafayette Park. I condemned the photo op and said that Trump was “rightfully criticized” for it. (Vladeck refuses to acknowledge the distinction between defending legal principles as opposed to individuals in controversies, a common attack against civil libertarians. As shown in numerous columns on this blog, I have long been a critic of Trump. Indeed, even in my impeachment testimony, I noted that past opposition. My objections were based on the constitutional standard of impeachment).
Ultimately, the admission that the District used tear gas near the park does not confirm the use in the federal operation. The MPD admitted to using tear gas nearby to enforce Bowser’s curfew. Bowser has long insisted that the District did not assist in the clearing of the park. The clearing operation began before the curfew and the District admits it used tear gas to enforce the curfew. I am not aware of a change in the position of the Justice Department that pepper balls rather than tear gas was used in the federal operation.
The problem presented by misleading comments like Vladeck’s is that it takes far more words to refute than to state. That is why I often do not respond. However, as academics, we should strive to be not just fair but accurate in such commentary. Yet, rather than deal with the surprising admission of District, the impulse is to launch another ad hominem attack. The incident reveals how rage has corrupted our capacity for civil and honest debate, even as academics.