Trial over California National Guard deployment concludes as judge questions limits of president’s authority

The trial over President Trump’s deployment of thousands of National Guard troops to Los Angeles earlier this summer reached its third and final day Wednesday, as lawyers for the Justice Department and the state of California argued over the validity of Gov. Gavin Newsom’s lawsuit and whether the Posse Comitatus Act — which generally bars the military from engaging in domestic law enforcement – applied to the troop deployment.

Mr. Trump in June deployed 4,000 California National Guard troops and 700 Marines to Los Angeles, saying they were needed to protect federal property and law enforcement agents amid June protests against Immigration and Customs Enforcement operations. Newsom did not approve of the use of his state’s Guard forces and responded with a lawsuit requesting an injunction limiting the military’s role in the city.

In addition to claiming the 1878 Posse Comitatus Act does not apply, Eric Hamilton, a lawyer for the Department of Justice, argued that there is no precedent for the lawsuit, for injunctive relief or money damages under the act, and that Newsom and the state of California have not suffered the harm required to sue. 

“It is, in fact, the federal government who is engaged in unprecedented conduct,” said Deputy Attorney General Meghan Strong, representing the State of California, explaining that the government has never used the military in this way before.                             

U.S. District Judge Charles Breyer seemed perplexed by several of the government’s assertions, particularly what he called the apparent “absence of any limits to a national police force.” He questioned the Justice Department’s claim that the 19th century law at the center of this trial is not relevant, and the assertion that his court lacks jurisdiction to issue an injunction against the president.

“So then what is the remedy?” Breyer asked Hamilton, raising the issue of presidential immunity from criminal prosecution. “You’re saying there’s a criminal remedy? The president can be prosecuted? You say that in light of the Supreme Court decision, the Trump decision. Isn’t he immune?”

“So that’s it. Too bad. So sad. It’s over,” he added emphatically. “And that’s the end of the case.” 

California has asked Breyer for an injunction that would allow the military to protect federal property — such as courthouses and ICE facilities — but block it from continuing the support for immigration enforcement operations, which the state’s lawyer called an “unlawful military crusade.”

“The constitution and the law and the facts are on Governor Newsom’s side,” said Josh Kastenberg, a professor at the University of New Mexico Law School. “But that doesn’t mean he’s going to win. Ever since World War II, the courts have embraced this military deference doctrine, which really is presidential deference in matters of military command and control.”

Questions over scope

“We’re going to see federal officers everywhere if the president determines that there’s some threat to the safety of a federal agent,” Breyer said to Hamilton. “And it’s his determination. Not mine, it’s his. That’s what you’re saying. That’s what the law is.”

Hamilton said that wasn’t “quite what I’m saying.” He asserted the troops are not enforcing federal law, but providing protection, and that it is lawful for guardsmen and marines to provide protection for federal buildings – the one point he agreed with California’s attorney on. But, he argued, there is no distinction between protecting federal property and protecting federal law enforcement working out in the field. 

Breyer pointed out that federal employees “are everywhere.”

The judge further questioned why any National Guard members remain in Los Angeles, and expressed concern about the justification for continued operations. Hamilton testified that 300 guardsmen remain, a 90% reduction in the force. Strong countered that it is still a significant number of soldiers, and certainly enough to violate the law.

“Thank goodness for the National Guard, but why is the federalized National Guard still in place?” asked Breyer. “What’s the threat today? What was the threat yesterday?”

“I go back to the thing that I’m really troubled by: What limiting factors are there to the use of this force?” he said, “Once you have a force in place, and maybe legitimately do so, and the threat that gave rise to the force in that place subsides … how does one look at this national police force that goes out of where the threat was and starts executing other laws?” 

Does the Posse Comitatus Act apply?

Breyer appeared to take issue with the Justice Department’s argument that the Posse Comitatus Act does not apply, noting that a key witness, Major General Scott Sherman – who was at one point the commanding general of the Guard task force in Los Angeles – had testified that the troops were trained to act within the bounds of that law. 

“Then why is it the excellent Major General sought assurance that the Posse Comitatus Act was followed?” said Breyer. “Why did I spend a day looking at slide after slide, and regulation after regulation, and reports after reports on conduct of the soldiers to ensure that they were in compliance with the Posse Comitatus Act if the Posse Comitatus Act is irrelevant?” 

Strong argued that all of the Department of Defense’s leaders agreed that the Posse Comitatus Act applied to the Task Force 51 troops in Los Angeles. She said they substituted the word “protection” for “security” when describing the troops’ activities because they knew that “security” would violate the act.

She asserted that the secretary of defense had released a memorandum invoking a constitutional exception to the Posse Comitatus Act, and affirmatively instructing soldiers to engage in activities that violated it — but the memo was issued after those activities had taken place. 

On Tuesday, Sherman testified that he was advised of a “constitutional exception” that enabled the troops to conduct certain activities that would normally violate the Posse Comitatus Act.

Strong called this an attempt by the Department of Defense to justify their actions after the fact that “itself reveals a knowledge and awareness of their violations.” 

The federal government is “disregarding the law, and so we need show nothing more than that,” said Strong. 

She further argued that the Constitution seeks to make sure the president cannot control a standing army the way the king had in 1776. She said that it would deny the basic principles of federalism for the state to have “no legal recourse to challenge the conduct of these troops.” 

“If you look at the plain language of the Posse Comitatus Act, and the fear of standing armies that existed at the time of the Constitution,” Kastenberg said. “… One of the biggest issues in the state conventions and in the framing of the Constitution to begin with was to significantly curtail the president’s authority over the standing army, and keep the standing army very small.”  

Breyer did not give a timeline for his ruling, stating at the end of the day, “I will decide the case as soon as I can decide the case.”

Joe Walsh

contributed to this report.