CREATORS: Trump Administration Breathes Life Into Lost Cause of the Confederacy

Matthew T. Mangino
CREATORS
September 2, 2025

The Trump administration is talking about making the nation's capital and places like California and Chicago safe again — reminiscent of the campaign's mantra that evolved into an acronym that represents a political movement MAGA, Make American Great Again.

At the same time, President Donald Trump's acolytes are using the criminal justice system to get even with his political opponents. The FBI raided the home of former national security adviser John Bolton.

According to a carefully calculated leak to The New York Post, Bolton — a major critic of Trump — had the search of his home personally authorized by FBI director Kash Patel. Greg Sargent recently wrote in The New Republic, "Patel had openly declared in 2023 that 'the conspirators,' that is enemies of Trump and MAGA, must be prosecuted, and also that more loyalists with the resolve to see this through would be recruited to carry this out."

The Department of Justice appears to be Trump's personal enforcers. Patel's hit list is common knowledge, and his open involvement in the investigation of Bolten is meant to send a message to Trump's critics. This sounds more like the Mob — who decades ago federal prosecutors successfully crushed — than the Department of Justice.

At the same time, the Trump administration is doubling down on its crime crackdown in major cities. Trump has long painted major U.S. cities as unsafe and lawless. This is nothing new. During 2017 inaugural address, Trump spoke of "American carnage" in urban areas, pointing to crime and poverty, particularly in places led by Democrats.

The focus has not changed. Even though, cities like Washington, D.C., Los Angeles and Chicago have been the focus of Trump's wrath, Southern cities like Memphis and Jackson, Mississippi have been ignored.

Not only is it a lie to say that cities like Chicago are "a mess" and dubious at best to suggest that the National Guard needs activated to clean up the mess — the rationale for deploying the National Guard is not about making cities safe it is about creating a "police state."

It has long been a staple of American governance that local and state law enforcement is to be conducted by civilians, not the military.

Ordinarily, a state's governor controls its National Guard. Under Title 10 of the U.S. Code, the president can "federalize" the National Guard, placing them under federal control and funding for federal missions like overseas deployments or suppressing domestic insurrections.

Trump invoked this authority first in Los Angles in June during immigrations protests. He cited "incidents of violence and disorder" tied to ICE operations. According to Katie Couric Media, California Gov. Gavin Newsom and other officials challenged the deployment, "arguing the order violated the Posse Comitatus Act, which prohibits U.S. troops from engaging in civilian law enforcement. A federal judge agreed, but the ruling was ultimately put on hold by the 9th Circuit Court of Appeals."

The Posse Comitatus Act was meant to prevent the federal government from using the military as a domestic police force after Reconstruction.

This struggle is again evolving into a fight between red states and blue states — code for rural v. urban. While Los Angeles, Washington, DC and soon Chicago are under siege, there are plans to mobilize up to 1,700 National Guard troops from 19 Republican-controlled states, including Alabama, Arkansas, Florida, and Georgia and Texas.

This is a modern-day Reconstruction. Major urban areas being occupied by troops from predominately southern states. The Trump administration is breathing life into the lost cause of the Confederacy.

As Ty Seidule, professor emeritus at West Point, described in his book, "Robert E. Lee and Me: A Southerner's Reckoning with the Myth of the Lost Cause," the south rebelled against the north because "(T)he Confederate States of America ... refused to accept the results of a democratic election in 1860."

Sound familiar?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino 

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LAW & CRIME: Trump’s deployment of military to the streets of Los Angeles exceeds his presidential authority

Matthew T. Mangino
LAW & CRIME
June 14, 2025

President Donald Trump’s deployment of nearly 4,000 National Guard troops and 700 U.S. Marines to Los Angeles has exceeded the legal limits of how the military can be used to enforce domestic laws in American cities.

The Governor of California, Gavin Newsom, intends to prove that in a court of law. The state has filed a lawsuit alleging, “President Trump has repeatedly invoked emergency powers to exceed the bounds of lawful executive authority.”

“On Saturday, June 7, he used a protest that local authorities had under control to make another unprecedented power grab, this time at the cost of the sovereignty of the state of California and in disregard of the authority and role of the Governor as commander-in-chief of the state’s National Guard,” says the complaint, which was filed in federal court.

U.S. District Judge Charles R. Breyer agreed. Breyer, a Bill Clinton appointee who also happens to be the brother of retired Supreme Court Justice Stephen Breyer, declared that Trump’s “actions were illegal — both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution,” and ordered control of the National Guard returned to Newsom. The order was supposed to take effect Friday at noon, but the 9th U.S. Circuit Court granted an administrative stay late Thursday night, pausing — at least temporarily — Breyer’s order.

What this lawsuit comes down to is the Insurrection Act versus the Posse Comitatus Act. One act is more than 200 years old and the other, nearly a century and a half.

The Insurrection Act, passed in 1807, authorizes the president to deploy military forces inside the United States to suppress rebellion, invasion or to enforce federal law in certain situations. The Posse Comitatus Act, passed in 1878, was put in place to ensure that the federal military would not be used to intervene in the establishment of Jim Crow laws in the former Confederacy after Reconstruction. The overarching principle of the Act is to prevent the military from interfering in the affairs of civilian government.

When it comes to the Insurrection Act, troops can be deployed under several sections of the law. The statute’s requirements are not clearly defined, leaving some aspects of the law to the discretion of the president. One provision provides that the president can send in troops at a governor’s request. A second provision provides the president with the authority to deploy troops to “enforce the laws” of the United States or to “suppress rebellion” whenever unlawful obstructions make it difficult to enforce federal law — even against the state’s wishes.

A third provision provides if anyone in a state is being deprived of a constitutional right and state authorities are unable or unwilling to protect that right — think Presidents Dwight D. Eisenhower and John F. Kennedy following Brown v. Board of Education — the president can deploy troops.

“He [Trump] is declaring utterly bogus emergencies for the sake of trying to expand his power, undermine the Constitution and destroy civil liberties,” Ilya Somin, a libertarian professor at Antonin Scalia Law School, told the New York Times.

Now let’s juxtapose the Insurrection Act with the Posse Comitatus Act. The Posse Comitatus Act consists of just one sentence: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

In practice, this means that members of the military who are subject to the law may not participate in civilian law enforcement unless doing so is expressly authorized by a statute or the Constitution. Supposedly that statute would be the Insurrection Act — but clearly there is no insurrection or rebellion, and Trump has said as much.

Here is Trump’s rationale, straight from a June 7 White House memo:

In light of these incidents and credible threats of continued violence, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby call into Federal service members and units of the National Guard under 10 U.S.C. 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property.

Section 12406 provides that the President may active the National Guard if the country” is invaded or is in danger of invasion by a foreign country”; there is a “rebellion or danger of rebellion”; or the president is unable with regular forces “to execute the laws of the United States.” None of those circumstances exist, and even if one did, Section 12046 concludes with, “Orders for these purposes shall be issued through the governors of the States …

The White House is violating, in the most blatant way, the United State Constitution. But why? The New York Times suggests, after talking with various experts that the “real purpose, they worry, may be to amass more power over blue states that have resisted Trump’s deportation agenda. And the effect, whether intentional or not, may be to inflame the tensions in L.A., potentially leading to a vicious cycle in which Trump calls up even more troops or broadens their mission.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

This is an opinion piece. The views expressed in this article are those of just the author.

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Sentencing for Jan. 6 insurrectionist: 'Trump’s gonna pardon you . . . Donald’s got you'

A federal judge appointed to the bench by President Ronald Reagan said recently that the public discourse about the Jan. 6 attack on the U.S. Capitol — and the cases against Donald Trump supporters prosecuted because they committed crimes in support of the once and future president — had been distorted, reported NBC News.

U.S. District Judge Royce Lamberth said that while the events of Jan. 6 may be a “distant, hazy memory” for many Americans, there were many who suffered that day who never forget the attack. Emphasizing that “truth and justice, law and order” are bedrock principles of the judicial system, Lamberth said that the jurors who heard the cases “know how perilously close we came to letting the peaceful transfer of power, that great cornerstone of the American republican experiment and perhaps our foremost contribution to posterity, slip away from us.”

Lamberth — who previously said the “preposterous” claims Republican politicians were making about the Capitol attack “could presage further danger to our country” — made his comments during the sentencing of a man who ran for a congressional seat previously held by former Rep. George Santos.

Philip Grillo had been convicted of a felony count of obstruction of an official proceeding, but after the Supreme Court this summer ruled against the use of that charge in Jan. 6 cases, Grillo filed a motion for acquittal on that count, which the government did not oppose. So on Friday, Grillo was sentenced to a year in prison on the remaining misdemeanor counts.

“We f---ing did it, you understand? We stormed the Capitol,” Grillo said in a video he took of himself in the Capitol, according to the Justice Department. “We shut it down! We did it!”

Lamberth, who sentenced Grillo to 12 months behind bars, had rejected Grillo’s argument to delay his sentencing due to the possibility that Trump might pardon some or all of the Jan. 6 rioters. He ordered Grillo to be stepped back, or taken into custody immediately, rather than be allowed to self-surrender.

“Trump’s gonna pardon you,” said one of Grillo’s supporters in the courtroom galley. “Donald’s got you, Phil.”

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SCOTUS bars key felony charge in Jan. 6 prosecutions

Roger Parloff wrote on Lawfare, on June 28, the U.S. Supreme Court did what many commenters had been fearing for almost three years: It barred—or at least pared back—the department’s use of a key felony charge in the Jan. 6, 2021, Capitol Siege cases: corrupt obstruction of an official proceeding under 18 U.S.C. Section 1512(c)(2). The department has leveled that charge against at least 355 individuals, according to its data, which is about one quarter of the 1,427 total defendants who have been federally charged in connection with the insurrection.

Yet the blow will likely have less dire consequences than many cassandras—including me (for example, here, here, here, and here)—once assumed. That is so for practical as well as legal reasons. As a practical matter, no defendant was charged solely with that offense, and the most violent actors were invariably charged with multiple felonies in addition to 1512(c)(2). Further, the ruling has arrived late enough in the litigation that it will not have a noticeable impact on the vast majority of cases. Only about 52, as explained below, are likely to be significantly impacted. Finally, as a legal matter, the Supreme Court left open the possibility, as Justice Ketanji Brown Jackson stressed in her concurrence, that prosecutors might still be able to use this charge in Jan. 6 cases—including those of the 52 defendants most potentially impacted.

Moreover, as also discussed below, the ruling appears unlikely to have any effect on special counsel Jack Smith’s four-count election-interference indictment against former President Donald Trump in Washington, D.C. That indictment includes one count of corrupt obstruction of an official proceeding, and one count of conspiring to commit that offense.

The 6-3 ruling, authored by Chief Justice John Roberts, Jr., unquestionably and greatly narrows the ambit of the law. While the Justice Department had assumed that the statute broadly criminalized corrupt attempts to obstruct official proceedings, including by means of riotous conduct, the majority concluded that that the law is narrower. It defines, rather, a more conventional, obstruction-of-justice crime that focuses on corruptly falsifying or destroying evidence or other objects being used at an official proceeding. The crux of the holding, in the Chief Justice’s words, is this:

the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or ... other things used in the proceeding, or attempted to do so.

Though Roberts’ ruling was based largely on textualist arguments, one of the Court’s preeminent textualists, Justice Amy Coney Barrett, wrote the dissent, which was joined by Justices Sonia Sotomayor and Elena Kagan. “The Court,” Barrett wrote, “does textual backflips to find some way—any way—to narrow the reach of subsection (c)(2).” She chides the majority justices who, she concludes, “simply cannot believe that Congress meant what it said.”

At first glance, the majority ruling appears to preclude use of the statute against Jan. 6 defendants, who, like defendant Joseph Fischer, a then-Pennsylvania police officer, allegedly stormed the Capitol with intent to stop the electoral vote count through multiple unlawful means. (Fischer was charged in a seven-count indictment that included two other felonies, including assaulting a federal officer and impeding a law enforcement officer during a civil disorder.)

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Supreme Court unanimously keeps Trump on Colorado ballot

The US supreme court’s unanimous ruling overturning a decision by Colorado’s top court that barred Donald Trump from the ballot for his involvement in January 6 will resolve the question of the former president’s ability to run for office nationwide.

At issue was whether states could enforce section three of the 14th amendment to disqualify someone from running for federal office, such as the presidency. That part of the constitution has been cited by state-level judges, including in Colorado, who removed Trump from ballots in lawsuits brought by pro-democracy groups.

In their decision, the US supreme court writes:

We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.

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Senator looks to restrict use of military within U.S.

A top Democratic senator is renewing his effort to rein a president’s authority to deploy the military inside the United States. Senator Richard Blumenthal (D-Conn.), a senior member of the Homeland, Armed Services and Judiciary committees, told POLITICO he is seeking Republicans and Democrats to join his latest effort to overhaul the law involving deployments inside the U.S., known as the Insurrection Act.

The law, enacted in 1792, grants the president the authority to deploy the military domestically and use it against Americans to suppress rebellion or violence. But Blumenthal and other critics argue that it is overly broad and ripe for abuse.

“Ideally, there would be interest on the Republican side because the potential for abuse really ought to concern all of us, regardless of who was president,” Blumenthal said.

Donald Trump’s back-to-back wins in Iowa and New Hampshire have tightened his grip on the Republican Party’s presidential nomination, prompting worried lawmakers and foreign governments to devise plans to prepare for and protect against more upheaval.

The renewed push comes after Trump told an Iowa audience that he considered, but held back from, deploying the military to inner cities to fight crime. He also called New York City and Chicago “crime dens.”

“And one of the other things I’ll do — because you’re supposed to not be involved in that — you just have to be asked by the governor or the mayor to come in. The next time, I’m not waiting,” Trump said in November. “One of the things I did was let them run it, and we’re going to show how bad a job they do. Well, we did that. We don’t have to wait any longer.”

Blumenthal tried to sharpen the law once before in 2020, following Trump’s threats to use troops amid civil rights protests across the U.S. following the police killing of George Floyd. At the time, progressive Reps. Pramila Jayapal (D-Wash.), Mark Pocan (D-Wis.) and Ilhan Omar (D-Minn.), introduced a companion bill, which attracted 25 cosponsors but never made it onto the House floor. In 2020, the Democratic-controlled House added a modified version to the annual defense policy bill, but the Republican-controlled Senate and the final bill did not.

Whether Democrats in the House will revive their push alongside Blumenthal this time is unclear, but the measure would have better chances in the Democratic-controlled Senate than in the Republican-controlled House.

Blumenthal said he is drafting a new version of his legislation that would amend the law to more clearly define what an insurrection is and the circumstances under which the president can use force, though he did not offer specifics. It would also grant local officials standing in the courts to have the emergency lifted at some point after the act is invoked.

Under the law now, a president may deploy troops to “suppress rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law in that state by the “ordinary course of judicial proceedings.”

It also allows a president to send the military to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” Presidents Dwight D. Eisenhower and John F. Kennedy relied on that language to enforce the Brown v. Board of Education desegregation case.

This isn’t the only legislation coming ahead of a potential Trump presidency that appears designed to rein him in. As part of the fiscal 2024 Pentagon policy bill, Congress approved bipartisan legislation that would prevent any president from withdrawing the United States from NATO without approval from the Senate or an act of Congress.

The measure, from Sens. Tim Kaine (D-Va.) and Marco Rubio (R-Fla.), protects an alliance that was a frequent target for Trump. The former president has reportedly been discussing the possibility of withdrawing the U.S. from NATO, if elected.

Blumenthal said he hopes to introduce the proposed changes to the Insurrection Act in the coming weeks as a stand-alone bill. At some point, he could attempt to add it to the next annual Pentagon policy bill.

“President Trump has in fact talked about sending troops into cities where he regards the police as being inadequate — in effect, potentially declaring martial law,” Blumenthal said, “so I think there needs to be stronger oversight.”

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