The following is a lightly edited transcript of the September 3 episode of the
Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
President Donald Trump suffered a major legal loss on Tuesday when a federal district court in California ruled that Trump’s occupation of Los Angeles with the National Guard and the Marines was illegal. But his response to this was highly unsettling. Speaking to reporters, he sounded entirely unconstrained. He said the military is now definitely going into Chicago, threatened to send it back into California, and let out a strange, angry rant about crime in D.C. that sounded frankly pretty nuts. It’s starting to look like the stage is set for a major confrontation if the courts continue to try to block his military occupations. But we think it would be particularly combustible if he stages this confrontation on this particular issue. We’re talking about all this with former federal prosecutor Barbara McQuade, who’s going to help us understand where it might all be headed. Barbara, always good to see you.
Barbara McQuade: Thanks, Greg. Glad to be with you.
Sargent: So federal district judge Charles Breyer in San Francisco issued this ruling, and it was really unsparing. He found that Trump’s unleashing of the National Guard and Marines violated the Posse Comitatus Act. Breyer wrote that this has created “a national police force with the president as its chief.” Alarming stuff. The ruling only applies to California, and it’s on hold for 10 days while Trump presumably appeals. Barb, what jumped out at you about the ruling?
McQuade: Well, it was interesting because you may recall that Judge Breyer initially did block the initiation of troops into Los Angeles, finding that there was an insatisfactory finding of an emergency. That was overturned by the Ninth Circuit Court of Appeals that said it’s the president who gets to decide whether there is or is not a rebellion and whether he should send troops in. But what this decision found was something different. That is, once they got there, they violated the Posse Comitatus Act. And he’s got a nice history in there of what that is. People probably know that the Posse Comitatus Act is the statute passed in the 1800s that makes it a crime for military troops to perform law enforcement tasks. And that comes from our history before the Revolution, when British soldiers were stationed in the colonies enforcing the law and the colonists really blanched at that. And so that was embedded in our Constitution and into our laws that the military is supposed to defend us from foreign enemies and our local law enforcement departments or federal law enforcement agencies are supposed to protect us from crime.
And the judge found a number of very specific instances where the National Guard was performing police functions. They were setting perimeters. They were conducting traffic blockades. They were doing crowd control activities. And he said, This is police activity. That activity was illegal, and it has to stop immediately. One thing that I really like about this order though is, as you said, he said he’s going to stay his order until September 12, which is a couple of weeks from now. And it gives the Trump administration an opportunity to appeal. That is an appropriate exercise of judicial restraint and respect for a coequal branch of government. I wish Donald Trump would show the same.
Sargent: So let’s come back to what happens down the road in a minute. First, let’s listen to some audio of Trump speaking to reporters Tuesday, after the court ruling was handed down. First, this is Trump threatening to send troops back into California.
Donald Trump (audio voiceover): But I watched Newsom get up and say he’s doing a great.… He’s not. We’re the ones that did it. And that’s OK. Whatever it takes. But the main thing is he got up and said we did it. Well, he didn’t want us there. And he’s going to need us again because it’s starting to form again. I see it. It’s starting to form again.
Sargent: And second, this is Trump stating straight out that he’s definitely sending troops into Chicago.
Trump (audio voiceover): Well, we’re going in. I didn’t say when; we’re going in. When you lose.… Look, I have an obligation. This isn’t a political thing. I have an obligation when we lose—when 20 people are killed over the last two and a half weeks and 75 are shot with bullets. So let me tell you a little story about a place called D.C., District of Columbia, right here where we are. It’s now a safe zone.
Sargent: Barb, clearly Trump is angry about the loss in court and his instinct is to respond to it by saying I’m resending troops to California and I’m sending troops to Chicago even though its governor and mayor have explicitly said they don’t want this to happen. In both cases, he’s just bullshitting like crazy. Crime has actually come down in both cities and in D.C., which he also mentions. I’ve got to say, this does not strike me as someone who’s capable of entertaining even for a second that what he’s doing might be illegal. What was your reaction to those rants?
McQuade: Yeah, it sounds like a lot of political bluster. It may be that he seems incapable of ever admitting that he was wrong. I think he wants to talk tough and sound like he is there for the people. But I think that the public understands that it’s important for members of the executive branch to follow court orders. And so if he persists without appealing, that would be a very serious blow to the rule of law. And I think we would see emergency appeals up to the Supreme Court with an order to stop until he actually gets a clear ruling from a court. So I don’t know whether he’ll follow through with it, but if he were to follow through with it in violation of this court order, I think that we will have seen a very egregious breach of the rule of law.
Sargent: Well, we’re already seeing from one of Trump’s U.S. attorneys how they’re going to try to get around the ruling. This guy put up on Twitter some pretty wild spin. He said that the military has never engaged in direct law enforcement operations in L.A. But the ruling from Judge Breyer was unequivocal. He wrote that the administration has “systematically used armed soldiers and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles, violating Posse Comitatus.” Barb, it seems to me the U.S. attorney is putting his finger on the issue, even though he’s playing word games, by saying that the military has not engaged in direct law enforcement. Can you unravel this for us? Is this going to be where they go to? It’s not a direct act of law enforcement. It’s indirect?
McQuafe: Yeah, as a former U.S. attorney, I find this tweet to be absolutely shameful. It is hair splitting and violating and disrespecting a court’s order. There were times when I was U.S. attorney and I disagreed strongly with what a court ruled, but I always said I disagree with the court’s opinion, but I respect their role and their ability to say what the law is. We will review our options and see whether we will file an appeal. I think that would be an appropriate response here. In his tweet, he refers to the CNN story and a tweet by Gavin Newsom as a false narrative. When they say that the courts have ruled that Trump’s use of the military is illegal, that’s exactly what the court ruled. Now, his name is Bill Essayli, and what he says is that the military has never engaged in direct law enforcement operations here in L.A. But if he has read that court opinion, something like 52 pages long, he details exactly the ways in which the military did engage in law enforcement activities and found them to be illegal. And so I find this tweet to be misleading at best and just all-out false at worst, counting on the fact that most members of the public are not going to bother to read it. They’re going to read articles about it. They’re going to see what other people say. And if he comes out and pounds the table, people will think this guy’s tough on crime.
Being tough on crime is laudable. It’s important. I think nobody wants to live in a city where there is violent crime. But remember, the reason troops went in there was to stop civil unrest in response to protests for immigration enforcement. There’s no rebellion going on right now for the troops to repel. And so I think that they ought to be reviewing the court’s order and deciding whether they have a basis for an appeal rather than attacking those who share the news.
Sargent: Yes. And as a matter of fact, the ruling actually says what you just said as well. It says, “There was no rebellion,” speaking about L.A. here, “nor was civilian law enforcement unable to respond to the protests and enforce the law.” This is the judge going straight at the core of the issue, which is that they have invented a series of pretexts for their invasions. And if I understand this correctly, and this is also a phrase from the ruling, what this will turn on is the core question of whether the military, the National Guard, the Marines “actively assisted” with the execution of domestic law. The administration is going to try to play weaselly games and say that it’s not exactly active assistance with the execution of domestic law enforcement, but of course it is.
McQuade: Yeah, I think so. Now, I suppose one could quibble about what actually entails the law enforcement activities. I suppose conducting an arrest would be clearly a law enforcement activity. Searching someone’s home would certainly be a law enforcement activity. Is it a law enforcement activity when you set a perimeter and you don’t let anybody pass? When you engage in crowd control—in the opinion, it says they were using rage shields and batons and helmets. Is it military activity when they control the flow of traffic and block roads and streets? I think that is law enforcement activity. That is the kind of work that police officers do when there is civil unrest in a city or efforts to control crowds. I’m sure we’ve all seen it for special events in our own cities. If you’re in town in the evening during a special event, you’ll see police officers in uniform performing those activities. The fact that the military is doing that, I suppose that’s where they will argue that there’s some gray area there. But what the court found is this is law enforcement activity. It is a violation of the Posse Comitatus law. And unless and until another court decides otherwise, they need to cease and desist, as of September 12.
Sargent: Well, let’s listen to a little more audio of Trump talking about D.C. Check this out.
Trump (audio voiceover): Criminals. These are hardcore criminals. We took many people off the streets of Washington, D.C. They’re hardcore. They’re not going to be good. In 10 years, in 20 years, in two years, they’re going to be criminals. They were born to be criminals, frankly. They were born to be criminals, and they’re tough and mean, and they’ll cut your throat and they won’t even think about it the next day. They won’t even remember that they did it.
Sargent: This is really whacked-out stuff. Note that his wild exaggerations are totally undiminished. No amount of fact-checking or reality checks or the word from officials in these states and cities can dent those exaggerations. This is what alarms me. It just seems like the train is just barreling down the track, and it’s unstoppable at this point. What did you make of that rant?
McQuade: Yeah, it’s really interesting. He’s talking about criminals who will slit your throat and other kinds of things. Again, thinking about the purpose for sending troops to L.A. The purpose there was purportedly, maybe pretextually, to quell rebellion and civil unrest, protesters, people who are throwing rocks at police officers or at federal property. He’s now conflating that order with ordinary street crime in Washington, D.C. And here again, he uses this trick of disinformation, which is to take things that have a germ of truth to them and then spin them out of control. Is there violent crime in Washington, D.C., or Chicago? Of course there is. Is there too much? Any violent crime is too much. Any murder is one murder too many. However, we have seen law enforcement strategies in both those cities working effectively to bring down the violent crime rates.
It seems to me that what Donald Trump wants to do is appeal to people who yearn for law and order. I think there is a racial component to all of this, of his white power base thinking of violent criminals as people who live in big cities. And [he’s] talking this tough talk, this us versus them; dehumanizing people who are committing these crimes in an effort to divide and conquer. I’m not going to let any laws and technicalities get in my way. I’m going to be your savior and save you from these violent criminals. And of course, even if people agree with what he is doing in this country, we also have to be mindful of how we do it—and that is in accordance with the law. You can’t use the military to perform police functions. I think eventually his lawyers will get to him on this, but I think he is going to blame them and he is going to appear to his supporters to be their hope for cracking down on violent crime.
Sargent: Well, I just want to underscore the importance of what you just said there, which is that every time he says, I’m sending in the military and my justification is the murder rate or crimes off the charts, or anything like that, he can’t do that, right? He conflates what’s going on with Washington, D.C., and other states. And I think there’s a reason for that, which obviously is that in D.C. he actually has a lot more latitude, a lot more authority to do this sort of thing than he does in other states. But you’re right. He’s conflating his original justification, which was a carefully—well, carefully is the wrong word—a legal reason that was an ostensible legal reason that was drafted for it in keeping with what they say is the law with, on the other hand, this excuse, which is rooted in crime and essentially a promise to do what he’s not allowed to do, which is use the military for domestic law enforcement. He’s essentially admitting it’s all illegal.
McQuade: Right. And I will also tell you, Greg, that I spent a lot of time when I was serving as U.S. attorney fighting violent crime. We have some cities with challenges in that arena—in Detroit and Flint, Saginaw, Pontiac, Ypsilanti. All of those cities have violent crime rates that are not enviable. And in the eight years I was there, I learned—we tried a lot of different things, but brute force doesn’t work. It may have a short-term effect of having surges and large police presence or hot spots or these zero tolerance programs. But what you really need is to attack the root causes of crime. Crime is driven by one thing, and that’s poverty. And if Donald Trump really cared about protecting people from violent crime, he wouldn’t have soldiers on the National Mall. He would have them in the neighborhoods with the highest crime rates.
In addition, prevention programs are what help the most. So when we’re seeing these reductions in crime in cities across the country, it is because of these intervention programs where violence interrupters are working in communities and are bringing people off the streets, having them put down their guns, providing resources. Donald Trump, of course, cut federal grants for community groups that prevent crime back in April. So this to me is all about a show of force, not about really effectively or thoughtfully reducing violent crime. One more point I’ll make is so far the cities he has threatened are all in blue states. We have Washington D.C., not a state, but a district. We have Los Angeles in the very blue California. We have Chicago in the very blue Illinois. Where we do have violent crime, but we have not seen any federal troops, are Detroit (Michigan is a state that voted for Trump), St. Louis (Missouri is a state that voted for Trump), Memphis (Tennessee is a state that voted for Trump). So if he really cared about focusing on violent crime, it seems like he would be focusing on all those cities and not just cities in blue.
Sargent: Right. And what you can see from these angry rants as well is that part of the show of force, an essential part of the show of force is the core fact that local officials do not want this to happen. He is deliberately and very conspicuously overriding what these local democratic officials want. That’s the point of what he’s doing. It’s not like a superfluous, incidental factor about it. It’s the whole point. I want to ask you though, Barb, where do you see this all going? What’s going to happen with the appeals court, do you think? And is it not an exceptionally combustible arena for there to be a confrontation in which Trump defies the courts?
McQuade: Yes, I think it is. I’ll be curious to see. The last time Judge Breyer ruled against Trump’s deployment of troops in L.A., the Ninth Circuit Court of Appeals reversed him. We’ll see what happens there. I imagine ultimately this case will go to the U.S. Supreme Court. And I fully hope and expect that this court would honor the Posse Comitatus Act. But one of the things we’ve seen is this particular Supreme Court, and I’m not one who believes that the court is in the bag for Trump, but they are of the view of what was one time considered a fringe theory but is now going mainstream: this unitary executive theory that the president has all of the executive power. And they’re very respectful of his executive power and very deferential about second-guessing his use of executive power. So I am not certain that we will see the Supreme Court stop him the way we have seen lower courts do that.
The other thing that worries me is in the meantime, as you said earlier, this ruling only applies to California, where this judge sits. We could very easily see the deployment of troops in other cities. And in the absence of a similar order, he could continue sending troops to new cities and creating some chaos there. I think we’re seeing some civil unrest in Chicago as protesters are protesting even the idea of troops even before they’re sent there. If troops are to go there, I worry that they will be put in harm’s way in a city where they are just not wanted. Many of these troops are not trained to handle the kinds of violent crime they experience on the street or crowd control issues. And I worry that it is a combustible situation waiting for something very bad to happen, either to a civilian or to a National Guardsman himself, and that could really escalate some of the violence and the passion around this issue.
Sargent: I will say, Barb, every last little bit of what I’m hearing from Trump points to nothing but an escalation. Barb McQuade, thanks so much for coming on. Harrowing stuff, though.
McQuade: Yeah, thanks very much, Greg. Appreciate the chance to talk with you.