It is a crime to send federal troops or armed federal law enforcement agents to any polling place

With the mid-term elections approaching, questions have arisen over whether the Trump administration might attempt to station federal troops at polling places. As the Brennan Center and many others have pointed out, this would be clearly illegal: Section 592 of Title 18 of the United States Code criminalizes deploying federal troops or armed federal law enforcement agents to any polling place, and multiple other federal criminal and civil laws bar military interference in an election, reported Just Security. Such laws buttress the Posse Comitatus Act, which generally prohibits federal military participation in civilian law enforcement except where Congress has expressly authorized it. 

These laws, most of which have been in force for more than 150 years, unmistakably convey Congress’s intent to bar any kind of military interference in American elections. Even so, in 1968, the Office of Legal Counsel asserted in a short, conclusory memo that Section 592’s prohibition on troops at the polls does not apply if the president has invoked the Insurrection Act. The Insurrection Act is the most important statutory exception to the Posse Comitatus Act, allowing the president to use federal military forces to execute the law in certain emergency situations. 

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Justice Kavanaugh sends a signal on Insurrection Act

Adam Liptak writing for The New York Times:

Justice Brett M. Kavanaugh sometimes says the quiet part out loud. He did that last month when the Supreme Court refused to let President Trump deploy National Guard troops in Illinois.

The decision was a rare loss for the administration at the court, and it seemed to prompt Mr. Trump to abandon his efforts to deploy troops in Illinois, Oregon and California.

But Justice Kavanaugh, in a footnote in a concurring opinion, suggested that the ruling could be a speed bump on the road to greater presidential power. He pointed to the possibility of Mr. Trump invoking a different law, the Insurrection Act, to send more conventional military troops to American cities.

Less than a month later, Mr. Trump suggested he might do exactly that in response to violence and protests in Minneapolis.

“If the corrupt politicians of Minnesota don’t obey the law and stop the professional agitators and insurrectionists from attacking the Patriots of I.C.E., who are only trying to do their job, I will institute the INSURRECTION ACT, which many Presidents have done before me,” he wrote on Thursday on social media.

In his own social media post hours earlier, Todd Blanche, the deputy attorney general, had called the opposition to immigration raids in the state a “Minnesota insurrection.”

Mr. Trump has long floated the possibility of invoking the act, and he did not need a sentence in a footnote to give him any ideas. But Justice Kavanaugh’s statement did make plain that the Supreme Court’s action in blocking one kind of deployment could set the stage for other, more aggressive ones.

Mr. Trump relied on a different law to order National Guard troops to cities last summer, an obscure measure adopted in 1903 and 1908 that said deployments were allowed for three reasons.

One, concerning foreign invasions, plainly did not apply to the events in Illinois. The second permissible reason for deploying the Guard was if a rebellion was underway, or if there was danger of one. That is a stretch, and the majority did not cite it, much less discuss it. The court’s order focused on the third reason: the president’s right to deploy the National Guard if he is unable to execute laws “with regular forces.”

Five justices joined the unsigned majority opinion, which rejected the Trump administration’s position that “regular forces” referred to civilian law enforcement like Immigration and Customs Enforcement agents. Instead, the majority said, the term referred to the military. Since there had been no showing that those forces would be unable to execute the laws, the administration lost — at least for the time being.

Justice Kavanaugh voted with the majority but did not sign its opinion, and accepted only part of its reasoning. Such a “concurrence in the judgment” is unusual in cases decided on the court’s emergency docket.

Speaking for himself, Justice Kavanaugh surveyed the legal landscape and said what the majority had left unstated.

“As I read it,” he wrote, “the court’s opinion does not address the president’s authority under the Insurrection Act.”

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Can the president unilaterally deploy federal troops in the U.S.?

The Supreme Court is poised to decide a potentially momentous question for U.S. democracy: can the president unilaterally deploy federal troops on U.S. soil over the objections of state governors? In Trump v. Illinois, the Supreme Court will soon decide whether to issue a stay of a district court’s injunction of the deployment of National Guard troops to Chicago, reported Just Security. The government’s brief argues there is “no reason to believe that courts can, or should, second guess the President’s conclusion” that military force is needed to suppress an emergency. “[T]his case,” the brief argues, falls in the heartland of unreviewable presidential “discretion.” Even if judicial review is permissible, the government says, a court must be “highly deferential” to the President’s decision.

The Government’s position cannot withstand even rudimentary analysis. This is because the president’s authority is dramatically weaker when deploying troops domestically than it is when fighting enemies overseas.

Power Over the Military is not Exclusive to the President

The government’s interpretation suggests that a president may deploy military forces anywhere in the United States for any reason, and that courts would have no authority to determine its legality. This assertion runs counter to U.S. history, the structure of powers related to the military in the U.S. Constitution, and the theory of checks and balances.

The Framers and the generation that fought the American Revolution were well aware of the dangers of domestic use of the military. Among the grievances enumerated in the Declaration of Independence, abuse of the military was persistent theme: “He has kept among us, in times of peace, Standing Armies without the Consent of our Legislature,” and “He has affected to render the Military independent of and superior to the Civil Power.” The Third Amendment to the Constitution reflects these concerns in its prohibition on quartering soldiers in civilian homes during times of peace without legislation.

For this and other reasons, the Framers wisely disaggregated the military power horizontally across the three branches of the federal government, as well as vertically between the states and the federal government. They gave Congress the unique power to declare war and appropriate funds for military exploits, along with a series of other war-related powers. They gave the executive branch the authority to command troops in battle. They gave the judiciary the ability to arbitrate disputes among the branches and to protect individual rights. They left to the various states the power to call forth a militia to protect the people within their particular jurisdictions.

In addition to the structural constitutional dissipation of control over the military, statutes like the 1878 Posse Comitatus Act forbid the use of the military for domestic law enforcement. Congress similarly banned the use of troops at polls around the same time. Even the Insurrection Act, which champions of presidential power cite as an ace-up-the-president’s sleeve, says that the president’s power to use the militia or armed forces is, among other purposes, to protect against the deprivation “of a right, privilege, immunity or protection named in the Constitution and secured by law” when the state is unable to protect such rights of the people (emphasis added).

In other words, the power of the president to use the military in times of emergency is arguably tethered to the need to protect the constitutional rights of the people. This is consistent with the president’s articulated duty under Article II of the Constitution to “take care that the laws are faithfully executed.”

No Cause for Deference

The claim of extreme judicial deference to the president rests on a false equivalence of foreign and domestic use of the military. There is plenty of case law that supports broad deference for presidential determinations regarding foreign troop deployments. Of course, federal judges have  been reluctant in our more recent history to second guess the decision to use the military to defend the United States against foreign enemies, or to micromanage tactical decisions during the course of a war. But when the president seeks to deploy the U.S. armed forces into American streets, the constitutional rights of Americans are potentially under threat, and courts are therefore duty-bound to exercise the utmost vigilance.

It is no accident that President Donald Trump is sending military forces into places in which there are some displays of opposition to his policies, based on an unsubstantiated and politically-motivated claim that these pose a threat to the country. It is no coincidence that in the midst of these deployments, he summoned every U.S. General from around the world to Washington to inform them that they need to focus on “the enemy within,” and urged them to use American cities as training grounds for the use of military force.

History tells us that deploying the military against one’s own people is the sine qua non of an authoritarian state, and represents the corruption of the military to solidify power. Be it Jews or other religious minorities, immigrants, infidels, suspected criminals, or alleged traitors, the “strong” leader convinces the population that these “others” are the true threat to national security and that therefore a military response is needed. Extreme deference to the president’s domestic use of the military abdicates the fundamental duty of courts to closely examine threats to fundamental constitutional rights of free speech and assembly that are the bedrock of a democracy.

The United States military swears an oath of allegiance to the Constitution. The oath of office of military officers, unlike that of enlisted servicemembers, contains no explicit commitment to follow presidential orders. Following military orders is obligatory, but only insofar as such orders are lawful. The same was true in Nazi Germany until August 2, 1934, when, following the death of President Paul von Hindenburg, the oath to follow the Weimar Constitution was replaced with an oath of allegiance to Adolf Hitler. Following that date, the German military was under the control of the Führer, sealing the death of German democracy until well after the end of the Second World War. More recently, two weeks ago in Madagascar, the civilian government was toppled by a military coup, the latest in a series of African countries to lose civilian control of the government—including military takeovers in Mali, Niger, Chad, Sudan, and Burkina Faso, not to mention those in other regions, including Myanmar.

If the Supreme Court decides to grant certiorari in the Illinois case or in a similar case involving use of the National Guard, such as the Oregon or California cases, the question of deference to presidential authority as Commander-in-Chief will be front and center. The government will once again argue that there is no basis for federal courts to second-guess presidential decisions regarding the deployment of U.S. troops, and that under Article II such second-guessing would be a violation of the separation of powers. Yet this appeal to presidential deference would ignore the basic distribution of military powers in both constitutional and statutory form that has existed for the entirety of U.S. history.

No case holds that the courts are powerless to prevent an illegal deployment of troops within the United States. How could it? Such a holding would render separation of powers meaningless and destroy the judiciary’s role as a bulwark against tyranny. The Court must remember its statement from 1972 in Laird v. Tatum:

“[T]here is nothing in our Nation’s history or in this Court’s decided cases… that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.”

Military rule and military coups have been fanciful, far-off threats in the United States, but President Trump has now made this threat real in his war against “the enemy within.” The Supreme Court must not shirk its obligation to ensure that presidents cannot conscript the military in an effort to undermine democracy.

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Judge: Trump administration’s 'perception of events' around Chicago 'are simply unreliable'

For U.S. District Judge April Perry, it all came down to credibility.

Should she believe local law enforcement officials, who say they have protests over President Donald Trump’s immigration campaign well in hand? Or Trump, whose aides claim a “brazen new form of hostility” targeting federal law enforcement had broken out in Illinois?

In the end, Perry concluded the Trump administration’s “perception of events” around Chicago “are simply unreliable.” She’d seen “no credible evidence that there is danger of rebellion in the state of Illinois,” nor that Trump “is unable … to execute the laws of the United States,” reported the Chicago Sun-Times.

And after a historic hearing that lasted more than three hours at the Dirksen Federal Courthouse, the judge temporarily blocked the Trump administration from “ordering the federalization and deployment of the National Guard of the United States within Illinois.”

Perry ruled orally from the bench and promised a written opinion Friday. The order is effective for two weeks, and Perry set a hearing for Oct. 22 to determine whether it should be extended for two more. Trump’s lawyers are sure to appeal in the meantime.

Gov. JB Pritzker reacted in a statement, saying, “Donald Trump is not a king — and his administration is not above the law.

“Today, the court confirmed what we all know: There is no credible evidence of a rebellion in the state of Illinois. And no place for the National Guard in the streets of American cities like Chicago.”

Illinois Attorney General Kwame Raoul told reporters after court that “this is an important decision not just for the state of Illinois, but for the entire country.

“The question of state sovereignty was addressed in this decision. The question of whether or not the president of the United States should have unfettered authority to militarize our cities was answered today,” Raoul said.

Chicago Mayor Brandon Johnson said Perry “established that the Trump administration is unreliable. They lie, misrepresent, and put people in danger.”

But White House spokesperson Abigail Jackson insisted that Trump “exercised his lawful authority to protect federal officers and assets” amid “ongoing violent riots and lawlessness, that local leaders like Pritzker have refused to step in to quell.

“President Trump will not turn a blind eye to the lawlessness plaguing American cities and we expect to be vindicated by a higher court,” Jackson said.

The hearing amounted to one of the biggest legal showdowns yet between Trump and Illinois’ Democratic leaders including Pritzker as well as Raoul and Johnson, who both watched portions of Thursday’s hearing from the courtroom gallery.

It also took on national significance as Trump pushes for deployment in cities long known to be Democratic strongholds. The 9th U.S. Circuit Court of Appeals, which considers cases from western states, also heard arguments Thursday over deployment in Oregon.

In crafting her scathing ruling, Perry turned to recent events in the same federal courthouse in which she once served as a prosecutor. In recent days it has seen grand jurors reject criminal charges brought by a U.S. attorney’s office long revered for its credibility, and a judge rule against the U.S. Department of Homeland Security when it comes to the treatment of protesters.

“In the last 48 hours, in four separate, unrelated legal decisions from different neutral parties, they all cast significant doubt on DHS’ credibility and assessment of what is happening on the streets of Chicago,” Perry said.

However, about 200 troops from Texas and 14 from California had already started arriving earlier this week, joining about 300 federalized Illinois National Guard troops. Texas National Guard members were spotted Thursday morning at the U.S. Immigration and Customs Enforcement facility in Broadview.

Asked after court how Perry’s ruling affects those troops, Raoul said, “There’s a temporary restraining order that they should not be active within the state of Illinois.”

When asked if he’d direct them to leave, Raoul said it’s up to the Trump administration “to abide by the judge’s order.”

Earlier Thursday, Perry spent 80 minutes interrogating Eric Hamilton, the Justice Department lawyer who’s been defending deployment of National Guard troops across the country. He said the “brazen new form of hostility” toward the feds comes not from protesters, but “violent resistance to duly enacted immigration laws.”

Still, Perry told him there had been peace outside the Broadview ICE facility for 19 years, until federal border agents showed up this summer. She asked him if it mattered, under the law, if Trump’s claimed inability to execute federal law was by his “own provocation.”

Hamilton told her it did not.

“The fact still remains,” Hamilton told the judge, “that we are seeing sustained violence against federal personnel and property in Illinois.”

Perry questioned Hamilton about the treatment of protesters by federal agents and about the accuracy of a claim that the National Guard had been called upon to protect the Dirksen Federal Courthouse. It had not.

She tested the boundaries of Hamilton’s arguments, asked whether she should take Trump’s off-the-cuff remarks and social media posts into account, and said she struggled with Hamilton’s reluctance to set clear limits on the deployment.

“You have not committed that they are only going to be deployed at federal property or in support of immigration and customs enforcement,” Perry told Hamilton. “I am very much struggling to figure out where this would ever stop.”

This all thrust Perry onto the national stage 11 months after joining the bench. Former President Joe Biden once nominated her to be Chicago’s top federal prosecutor. That nomination was blocked by then-U.S. Sen. JD Vance, who is now Trump’s vice president.

Biden then nominated her to be a judge.

Despite the gravity of the moment, Perry managed to lighten the mood at times with quips like “riddle me this,” talk of people doing things for “funsies” and comparing claims of minor vandalism at Broadview’s immigration facility to a “Carrie Underwood song.”

She also took a moment to acknowledge the threats being leveled toward public officials everywhere.

“Mine started about 10 minutes after I got this case,” Perry said.

Arguments revolved around a federal law that allows the president to call into federal service members of the National Guard of any state if there is an invasion or rebellion — or if the president is “unable with the regular forces to execute the laws of the United States.”

Perry made reference to a grand jury’s so-called “no bill,” in which it refused prosecutors’ request for an indictment. She asked Hamilton about a claim in one filing about two people who had been arrested outside the Broadview facility on Sept. 27 “armed with loaded handguns.”

“Are these the guns that were seized from Ray Collins and Jocelyne Robledo?” Perry asked. She added that “those were the two people who were no-billed by the grand jury.”

Hamilton told the judge, “I have no idea.”

The couple had been carrying the weapons lawfully.

The fact that the Trump administration would point to such a case “indicates to me a certain lack of credibility,” Perry said.

She also asked Hamilton whether the troops will be “solving crime in Chicago?” Hamilton said they would, to an extent, through a mission to protect ICE facilities and personnel.

Perry later questioned Illinois attorney Christopher Wells for only 15 minutes. She pressed Wells on whether Trump actually owes an explanation to the state, or even to her, for why he decided to deploy the troops.

Perry also noted that the state sought an order blocking the deployment of military troops in general, in addition to the National Guard. She asked Wells if there’s “any reason to believe that’s about to happen?”

“Specifically?” she asked. “Other than just your gut?”

“The gut is a powerful instinct in this instance,” Wells told her.

“Well, I need evidence,” Perry retorted.

Later, during closing arguments, Wells cited a separate appellate court ruling on the matter that said courts have to be “highly deferential” to the president when it comes to the law in question.

He also said the ruling mentions “public virtue.”

“This case is replete with evidence of bad faith, of an abandonment of public virtue,” he said. “Of a lack of honest devotion to the public interest and of a grave risk of usurpation or wanton tyranny.”

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Trump administration threatens to invoke Insurrection Act

White House officials have held increasingly serious discussions in recent days about President Donald Trump’s invoking the Insurrection Act, a rarely used 19th century law that gives the president the power to deploy active-duty troops inside the United States for law enforcement purposes, five people with knowledge of the talks told NBC News.

Trump has sought to deploy National Guard troops in several major cities — including Los Angeles, Chicago and Portland, Oregon — saying they are needed to reduce crime and protect Immigration and Customs Enforcement officials from protesters. Critics have said the Trump administration is exaggerating issues in those cities.

A decision to invoke the act is not expected to be imminent, a senior administration official said. Were it to happen, it would be a notable escalation. The guard is currently deployed in limited support roles since active-duty members of the military are forbidden from conducting civilian law enforcement actions, such as conducting searches and making arrests. But the Insurrection Act allows the president to deploy troops inside the United States for that purpose.

Trump’s plans to deploy the National Guard have occasionally hit legal hurdles. A federal judge in Oregon on Sunday blocked him from sending guard members from any state to Portland. The next day, Trump said publicly that he would invoke the Insurrection Act “if it was necessary.”

“If people were being killed and courts were holding us up or governors or mayors were holding us up, sure, I’d do that,” Trump said. As of now, he said, it has not been needed.

Talk inside the White House about invoking the act has ebbed and flowed since Trump took office again in January, said the five people, who include the senior administration official, two people familiar with the discussions and two people close to the White House.

But the debate inside the administration has shifted recently, from whether it makes sense to invoke the act to more deeply exploring how and when it might be invoked, both people close to the White House said.

Administration officials have drafted legal defenses and various options for invoking the act, two of the people said.

But the current, broad consensus among Trump’s aides has been to exhaust all other options before taking that step, the senior administration official and one of the people close to the White House said.

The person close to the White House described the process as working its way up “an escalatory ladder.”

Asked about discussions regarding invoking the Insurrection Act, White House spokesperson Abigail Jackson said in a statement: “The Trump administration is committed to restoring law and order in American cities that are plagued by violence due to Democrat mismanagement. And President Trump will not stand by while violent rioters attack federal law enforcement officers. The administration will work to protect federal assets and officers while making American cities safe again.”

The act gives the president broad discretion regarding its invocation. It can be invoked at the request of a state or when the president determines that conditions like “unlawful obstructions,” “rebellion” or “insurrection” have made it difficult to enforce the law. During the Civil Rights era, three presidents — Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson — used the act to protect activists or enforce court orders mandating desegregation. It was last used, at the request of California’s governor, during the 1992 Los Angeles riots.

The governors of Oregon and Illinois both oppose sending troops to their states. There are no riots, and authorities there are not defying court orders.

The White House expects that any potential invocation of the act would be met with swift legal challenges and ultimately land at the Supreme Court.

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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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