The DOJ has admitted it misled federal judges about the size of a security “surge” in Portland, a confession that upends the legal basis used to justify deploying Oregon National Guard troops and throws the administration’s credibility into crisis.
In newly filed papers, government lawyers acknowledged they materially overstated how many Federal Protective Service officers had been diverted to Portland, telling the court they “deeply regret these errors” and stressing their “obligation to provide the Court with accurate and up-to-date information.”
When a divided Ninth Circuit panel cleared the way for federalizing 200 Guard soldiers on October 20, the majority leaned on the DOJ’s claim that “nearly a quarter” of FPS personnel had been pulled from around the country to reinforce Portland, a sign of serious strain on federal resources. Reporting and court records now show the real figure was far lower, roughly 13.1 percent, and that at any given time only 20 to 31 FPS officers were in Portland, not the 115 previously asserted. The department called that discrepancy a “material factual error.”
After Oregon flagged the contradictions using discovery DOJ itself produced, the Ninth Circuit halted its own ruling, restoring a lower-court order that blocks the Guard deployment while the full court considers whether to rehear the case. State officials called it a necessary reset while judges sort fact from spin. Local outlets likewise reported the “pause,” an administrative stay that keeps troops sidelined as the record is scrubbed.
The admission matters because accuracy was the administration’s best argument. The panel majority accepted that federal resources were tapped out, citing the alleged nationwide drain on FPS staffing to justify deference to the president’s decision. By contrast, the dissent warned that the ruling “erodes core constitutional principles,” including state control of militias and the public’s right to protest. With the numbers now reduced to a fraction of what DOJ first pitched, that deference looks shaky.
Critics say the government’s own correction undercuts its narrative that Portland required military back-up. Oregon’s attorney general noted that the DOJ’s revised figures show the city never saw anything like a quarter of FPS redeployed, a gap wide enough to flip the legal calculus. Legal analysts added that when a party admits to a “material factual error” in the very premise the court relied on, the proper remedy is to rewind and rebuild the record before any extraordinary action, like deploying troops, moves forward.
For the administration, the best-case spin is that it moved fast and cleaned up its filing once the mistake surfaced. But the courts do not grade on a curve, especially when a filing error helps unlock sweeping federal power. The DOJ told judges it takes “with the utmost seriousness” the duty to be accurate, and there is no hedging in “we deeply regret these errors.” The question now is whether that regret saves the rest of the case.
Next up, the Ninth Circuit will decide whether to grant full rehearing. If it does, Oregon will press that the earlier approval rested on bad facts, and that recent protests, while tense at times, never justified militarizing the response. If it does not, the administrative stay could still hold while judges demand a complete accounting of who said what, and when, in the government’s filings.
