Do military lawyers working as federal prosecutors violate Posse Comitatus Act?

 Following the mass exodus of federal prosecutors in Minnesota, the Justice Department has enlisted lawyers from the armed services to fill the gaps, according to Courthouse News Service.

Now, a federal judge is set to decide the legality of using military judge advocate general lawyers to prosecute civilians.

Paul E. Johnson, a Minnesota resident facing a count of assaulting a federal agent in January, claims Special Assistant U.S. Attorney Michael Hakes-Rodriguez is unlawfully prosecuting him in violation of the Posse Comitatus Act.

The act bars federal military troops from participating in civilian law enforcement except when expressly authorized by law — most commonly used to prosecute offenses committed by civilians on military intallations.

The Justice Department contends judge advocates may be detailed to “represent the United States in civil and criminal cases” — asserting Hakes-Rodriguez and others have fully satisfied the necessary requirement to practice in Minnesota federal courts.

“The only connection to the military is their membership, which is not part of their enforcement of civilian law," the government said in a reply brief.

Hakes-Rodriguez told Magistrate Judge Shannon Elkins on Friday his appointment falls under an exception to the Posse Comitatus Act allowing judge advocates assigned to civilian offices to perform duties as requested.

But former judge advocates say military regulations never allowed for the general assignment of military lawyers in civilian matters.

“It is so wrong, and it’s inappropriate, and it’s going to undermine the relationship between civil and military authority for a long time going forward,” said attorney John Marti, a former judge advocate and federal prosecutor in Minnesota.

“If it’s OK for the attorney general to designate military attorneys as special assistants to prosecute civilians in civilian courts for civilian offenses with no nexus to military authority, there is no limitation on the attorney general doing that with all U.S. attorney’s offices,” he added.

A group of 11 former U.S. military attorneys, including Marti, submitted an amicus brief in Johnson’s case, urging the government to revert back to the tradition of limiting military attorney participation in civilian matters.

The group said the government typically details military attorneys on occasion to prosecute offenses committed by civilians on military installations, and in other cases where the military has a “clear and defined interest.”

“The government recently expanded this practice far beyond its historical and statutory bounds,” the group said in the March 10 brief — citing the dozens of military attorneys assigned to U.S. attorney’s offices in Minnesota, Washington, D.C. and Tennessee.

“During these temporary duty assignments, JAGs are not prosecuting cases with a nexus to the U.S. Military,” the former military attorneys said in the brief. “Instead, they are prosecuting civilians for the kind of general, domestic federal offense that civilian DOJ prosecutors would normally handle.”

The group said the government’s use of military attorneys is harming civil-military relations by suggesting military-led law enforcement is the “catch-all” substitute for regular civilian constitutional due process.

Military attorneys also have no choice, according to the group, unlike typical federal prosecutors.

“When civilian prosecutors are instructed by their superiors to pursue legally flawed or ethically suspect cases, they can resign, as they have done in this district,” the group said. “But JAGs do not have this option — they must obey their military superior’s lawful orders upon possible penalty of criminal prosecution.”

Reports say as many as 25 military attorneys could work at the depleted Minnesota U.S. Attorney’s Office in an attempt to keep it afloat after mass resignations during Operation Metro Surge due to ethical conflicts.

Before the start of President Donald Trump’s second term, the office had reportedly more than 40 prosecutors on staff.

With that number now cut in half — not including enlisted military attorneys — it’s unclear how a judicial ruling against the use of military attorneys would impact the office, but Marti said the option to pull lawyers from other government departments — like DHS and ICE — has always existed.

“The question you ask yourself is why do you need military attorneys when all these other agencies have attorneys as well — why not detail them?” Marti said. “I think in part because it’s easier to direct military attorneys to go do a mission.”

Since Operation Metro Surge began, federal prosecutors have faced a reputational downfall through a myriad of court orders threatening contempt over misrepresentations of fact and law, and flouting of judicial instruction. Now, military attorneys sent in to ease the burden face similar challenges.

Hakes-Rodriquez was removed as the prosecutor on Johnson’s case Monday — only to be replaced with fellow military attorney William Richards.

The Justice Department did not respond to a request for comment Tuesday.

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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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Trump's deployment of federal troops to California illegal

The Trump administration illegally used thousands of military troops in Southern California, a federal judge said. in a ruling that accused the president of effectively turning nearly 5,000 Marines and National Guard soldiers into a national police force, reported The New York Times.

The ruling, by Judge Charles R. Breyer of the Federal District Court in San Francisco, came more than two months into a contentious deployment that was set off by immigration protests in June and has since dwindled to about 300 National Guard soldiers. Judge Breyer placed his injunction on hold for 10 days.

The judge found that President Trump’s deployment had exceeded the limits of federal laws that generally prohibit the use of the military for domestic law enforcement.

The decision was a victory for Gov. Gavin Newsom of California, a possible presidential candidate who filed the lawsuit and who has rebuked Mr. Trump for sending the military into Los Angeles. But the Justice Department, which defended the Trump administration in the lawsuit, is expected to appeal the decision and could receive more favorable consideration from the U.S. Court of Appeals for the Ninth Circuit.

The ruling was the latest in a series of judicial battles over claims of expansive unilateral powers by the administration. Mr. Trump and administration officials have deported people without due process, imposed widespread and unpopular tariffs and rolled back energy regulations, citing wartime and emergency powers that have been disputed in federal court.

The president also declared crime in Washington, D.C., to be an emergency in order to send federal troops there in August, although crime rates in the nation’s capital have actually been falling and local officials said the deployment was not needed. Since then, Mr. Trump has publicly mused about sending the National Guard into other Democratic-led cities. Federal law gives the White House more latitude to conduct local law enforcement in the District of Columbia than in the states.

The decision on Tuesday arose from the president’s deployment this summer of about 4,000 members of the California National Guard and 700 Marines to Los Angeles, where demonstrations had erupted over immigration raids.

In an executive order that was issued on June 7 over the objections of Mr. Newsom, who normally controls the state’s National Guard troops, the president wrote that “violent protests” had grown into “a form of rebellion,” and that the military was needed to “temporarily protect” federal agents and property.

City officials in Los Angeles vehemently disputed the president’s justification, noting that the police had been capably handling the protests, which were mostly confined to a few blocks in downtown Los Angeles near government buildings.

The White House, the officials said, had unnecessarily inflamed local outrage by sending masked and armed immigration agents into workplaces in a liberal city where immigrants make up roughly a third of the population, and then had used the ensuing demonstrations as a pretext to send in the military.

A 19th-century law, the Posse Comitatus Act, generally prohibits the use of the U.S. military for domestic civilian law enforcement, absent an insurrection. But the president did not invoke the Insurrection Act. Rather, he argued that an overarching federal law, Title 10 of the U.S. Code, which lays out the role of the armed forces, allowed him to commandeer National Guard units to execute federal law.

The administration contended that the troops were needed in California for federal agents to do their jobs because protesters were impeding their efforts. California officials quickly challenged the deployment, and Judge Breyer, an appointee of President Bill Clinton, a Democrat, temporarily blocked it in June.

A three-judge panel from the U.S. Court of Appeals for the Ninth Circuit, which included two appointees of Mr. Trump and one of former President Joseph R. Biden Jr., ruled that the judge had erred. The protests had been violent enough, they found, that the president could at least make an argument for deployment, and legal precedent required them to give “a great level of deference” to the president in weighing the facts underlying his executive order.

The decision allowed the troops to remain under the president’s control, pending a decision on a secondary request by the state to restrict how the troops could be used. Lawyers for California demanded that the military be limited, at most, to guarding federal buildings, and the appeals court determined that the administration’s use of the troops remained subject to judicial review.

By mid-June, the protests in Los Angeles had largely ended, but instead of releasing the troops, the administration kept them on duty in a sprawling tent city near Long Beach. The administration sent soldiers and Marines out with federal agents executing search and arrest warrants and conducting immigration raids.

Mr. Newsom challenged the administration’s claim that the troops were not conducting law enforcement. During a three-day hearing in August before Judge Breyer’s order, lawyers for California showed numerous photographs of armed National Guard troops engaged in what appeared to be police work — forming security perimeters around cannabis farms and workplaces where raids were being conducted, or wielding batons behind police tape as Immigration and Customs Enforcement agents handcuffed people.

In at least two instances, the state’s lawyers noted, members of the deployment briefly detained people. One occasion was early in the deployment in Carpinteria, when National Guard troops prevented a protester from entering an area where a raid was in progress. The other episode occurred later, when Marines held a man for about a half-hour after he tried to enter a Los Angeles federal building.

A field agent for Immigration and Customs Enforcement in Los Angeles testified that, for at least the first month of the deployment, about 75 percent of ICE operations involved federalized troops.

Maj. Gen. Scott Sherman, a 33-year Army veteran who led the task force overseeing the Los Angeles deployment, testified that troops took great care not to cross the line into law enforcement. But the line was fraught.

The general testified at length, for example, about a mission, code-named Operation Excalibur, in which federal immigration agents on foot and on horseback marched through MacArthur Park, a Los Angeles landmark in a neighborhood now largely home to immigrant families with low incomes.

General Sherman said the administration initially wanted to conduct the mission on Father’s Day and to stage troops and military equipment in the middle of the park in a “show of presence,” but he objected. The placement of troops, he said, seemed to inappropriately involve the military in what appeared to be a risky and low-value operation.

Only after federal officials planned to reposition the troops outside the park did he recommend approval. But when he expressed his concerns, he said, Gregory Bovino, a Border Patrol chief who is overseeing the federal immigration crackdown in Southern California, questioned his loyalty to the country.

The mission, which General Sherman said was ultimately approved by Defense Secretary Pete Hegseth, was postponed twice before taking place on July 7. Mayor Karen Bass of Los Angeles condemned it as a callous act of political theater that terrified children in the park as well as social workers who were providing services to homeless people.

Scores of National Guard troops drove to the area and stayed for about 20 minutes in case trouble erupted, the general testified, but never left their trucks.

Trump administration lawyers argued that California’s lawsuit was moot because the Posse Comitatus Act is a criminal statute that cannot be enforced with a civil lawsuit.

Moreover, even absent an insurrection, Eric Hamilton of the Justice Department argued, presidents have the inherent power to deploy the military to protect federal property and employees.

The Justice Department lawyers defended how the troops were used during the deployment, saying they violated no law and served a “purely protective function” for federal agents who were facing daily assaults from protesters.

Judge Breyer sharply pushed back, questioning how anyone could limit the power of the White House if the president could legally dispatch the military to enforce any conceivable federal function.

Normally, he noted, local law enforcement officers protect public employees going about their duty. Shouldn’t the president have to prove that a threat exists and rises to a specific threshold in order to summon the military?

“Where are the limits?” Judge Breyer repeatedly asked.

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Is ICE evolving into a masked domestic military force?

Six months into the second Trump administration, two things are becoming clear: First, the president remains a nearly entirely non-strategic actor, motivated only by an abiding desire to accumulate ever greater power, adulation, and wealth. And second, he’s fundamentally changing the nature of the United States in ways that threaten to bring an end to the nation’s 249 year old status as the world’s leading democracy, reported Public Notice.

Despite Trump’s consistently haphazard “governance” style, it’s becoming easy to foresee how his regime could effectively void our democracy. The now fully MAGA-fied GOP is increasingly likely to lose the next presidential election after incurring bracing losses in the midterms and other intervening state races. And as the nation learned before and following the 2020 election, Trumpists are more than willing to use force and other extra-legal actions to attempt to cling to power.

For Trump and his cronies, the prospect of losing power — or even sharing it with Democrats in the event control of the House shifts in 2026 — could prove to be catastrophic because of their reasonable fear of being held accountable for criminality that dwarfs Trump’s first term. And unlike January 2021 — when the Big Lie scheme failed — Trump and his cohorts will have new tools to carry out a coup, including a massive federal police force with a proven willingness to engage in systemic illegality.

Trump’s brownshirts

From its outset, Trump 2.0 has been grounded on systemic illegality and unilateral executive actions, a course of (mis)conduct the administration has succeeded in pursuing because of pliant GOP majorities in Congress the Supreme Court. It’s all but certain that the administration’s authoritarian conduct will grow in scope and intensity over the succeeding months, in no small part because the GOP reconciliation bill will hand over a staggering $170 billion to the Department of Homeland Security.

The bill includes nearly $30 billion in new “enforcement” funds. DHS boasts that it is already the largest federal law enforcement agency, with over 80,000 officers spread across nine organizations. But DHS says it plans to use the new funding to quickly hire 10,000 more more ICE thugs. And in recent months, DHS Secretary Kristi Noem has systematically dismantled DHS’s oversight offices, thereby paving the way for a lot of corner cutting.

The bill also includes $45 billion for expanding detention facilities comprised of both government and privately contracted facilities, meaning DHS is working with a jail budget that far exceeds that of the federal prison system.

With this infusion of cash, the US for the first time will have a massive federal police force with its own rapidly growing concentration camp system, with a reach that extends directly into the nation’s largest states and municipalities, potentially displacing local governance in critical respects.

We do not have to wait to find out how ICE and other agencies will conduct themselves within the US, and particularly in blue states and municipalities with Democratic (and demographically diverse) populations. Just look at what began as a quasi occupation of LA County and has now expanded to encompass large swathes of the state of California. There, the new ICE is focused on creating a state of fear and uncertainty among entire communities, including with militarized assaults on workplaces, complete with chemical munitions.

Last week, for example, a phalanx of masked ICE thugs marched into LA’s MacArthur Park, smack in the middle of one of the city’s largest Hispanic communities, accompanied by California National Guard troops that Trump had dragooned over the governor’s objection.

After parading around MacArthur with assault rifles and other military paraphernalia that served no apparent purpose, the invading force retreated.

Also in recent days, masked and heavily armed thugs have descended upon such dangerous locations as farms at harvest time and car body shops, where they have used force, and in some cases beaten, immigrants and citizens alike.

With his mélange of ICE, FBI, DEA and — importantly — military agents and troops, Trump has finally succeeded in creating what he longed to establish during his first term: A huge, domestic militarized force answerable only to him and his cronies.

The nation has never had a national police force, let alone a lawless one that’s singularly committed to the political agenda of the president. While the rapidly growing ICE force is not yet operating as an authoritarian arm of a dictatorship, it is more than plausible that it could be transformed into that type of Gestapo-like “law enforcement” entity, as Thor Benson has argued.

In that regard, Trump has recently spoken about taking over one or more major cities, including New York, asserting that they need to be “straightened out.” While such Trumpian musings are dismissed by some, they must be viewed in the context of what amount to ongoing militarized invasions of several such municipalities.

Unpopular populism

Trump is frequently described as a “populist” leader, but few pundits address the definition of the term. Hitler and Mussolini were populists who took power without democratic mandates and quickly destroyed institutions. Likewise, there’s every reason to expect that Trump and his crew will attempt another coup given the increasing likelihood they’ll have a hard time winning again in free and fair elections.

While Trump did win the popular vote last year, his victory was narrow, and his popularity began to slide immediately after he took office. A current average of polls indicates he’s disapproved by around 52 percent of voters and approved by 44 percent. This is a near reversal of where Trump stood in January, when he (briefly) had net positive approval rating. Also, Trump’s approval on immigration, his signature issue in the 2024 race, has taken a huge tumble into negative territory, with as many as 51 percent of voters disapproving the gratuitous brutality and performative sadism they’ve witnessed in recent months.

Trump is losing the most ground with the independent voters who often determine the outcome of elections — his current disapproval rate among this critical cohort is nearly 61 percent. Likewise, his approval rating among Hispanic voters, who played a key role in the GOP’s success last year, has descended from negative two in February to as low as negative 26. All of this is predictably leading to a corresponding decline in Trump’s approval rating in several of the swing states that allowed him to prevail last year in the Electoral College.

Given that midterm elections are increasingly referendums on the party in power — and considering that the GOP has devolved into little more than a personality cult — it’s all but certain that the 2026 midterms (assuming they are remotely free and fair) will be determined by the electorate’s souring view of Trump’s governance. There’s also increasing reason to believe that voters’ opinions of Trump’s regime will be even more negative by November 2028, when the GOP presidential nominee will almost certainly run as Trump’s anointed successor. That’s because the policies Trump is pursuing are both increasingly unpopular and wildly destructive.

Trump talked a big game on the campaign trail about lowering costs for consumers. Instead, his economic “policies” have focused nearly exclusively on two areas: an increasingly irrational and likely illegal tariff regime, and the expansion of tax cuts heavily favoring the very rich (paid for in part by slashing healthcare coverage and food support for low-income people). Both of these were centerpieces of the regressive reconciliation bill he signed into law earlier this month.

A major midterm loss is hardly unusual for a president, particularly one in his final term in office. After Trump’s unpopular 2017 tax cuts and his failed effort to repeal the ACA the following year, the Republican Party (especially House Republicans) took a drubbing in the 2018 midterms. If, as seems increasingly likely, the economy is in a downturn a year from now, Republican losses in November 2026 could be even worse. Particularly if the midterms turn out badly for the GOP, Trump and his cronies will inevitably begin to fear the consequences of a loss at the polls in the next presidential election and to consider their options.

Given the already massive scale of criminality in the Trump regime from the White House on down, Trump and all of his cronies have even more reason to be concerned about the prospect of being held to account. Additionally, as Anne Applebaum recently observed, Trump’s massive expansion of executive powers will make the prospect of a Democratic president all the more frightening for the members of the administration. They will have every reason to expect that a Democratic successor to Trump in the White House will use the newly enhanced powers of the office to hold Trump and company accountable in ways they didn’t during the Biden years. Against that backdrop, Trumpers may consider ensuring the victory of Trump’s designated successor in 2028 to be essential as a matter of self-preservation.

As anyone who lived through January 6 remembers, Trump and his cronies have already shown themselves willing to attempt to hold on to power illegally. More recently, by pardoning the J6 insurrectionists en masse, Trump took a major step toward legitimizing right-wing coup schemes, much as Hitler rendered his failed Munich putsch into an event worthy of annual celebration.

 Therefore, it is not only possible, but must be viewed as likely that in the wake of an 2028 electoral loss, Trumpists will take every step available to them to maintain control of the White House — including, if necessary, illegal ones.

But by then, Trump and his crew will have new tools at their disposal, including a beefed up ICE that will include large phalanxes of masked thugs who are experienced in using violence at the president’s behest. Thus, if the time comes for Trumpers to effectuate yet another post-election coup, they will have a ready and willing militarized federal police force to back them up and will not have to rely on a ragtag array of right-wing tourists.

While many are currently rightly concerned about the impact Trump’s brutal “immigration crackdown” will have on undocumented persons, the danger of his creation of a massive, non-law-abiding federal police force could extend far beyond the immigration. Congress has just handed the coup leader in the White House new, dangerous tools that he and his cohorts could use in their next attempt to overturn the nation’s democracy once and for all.

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Balko: 'We're in dire times'

 RADLEY BALKO writes The Watch on substack.com:

Quaint disputes about the proper role of police and military have been superseded by a more urgent threat: Donald Trump is creating his own, personal paramilitary force.

One of [America’s] great strengths is that . . . we do not allow the Army, Navy, and the Marines and Air Force to be a police force. History is replete with countries that allowed that to happen. Disaster is the result.

— Marine Major General Stephen Olmstead, testifying before Congress in 1989

For about 40 years now, civil libertarians have been warning about the threat posed by police militarization. For the past 20 years, I’ve been one of them. My position has long been that a soldier is trained to annihilate a foreign enemy. A police officer’s job is to promote public safety while protecting our constitutional rights (or at least it’s supposed to be). These skills are not interchangeable. They are, in fact, often in direct contradiction to one another. And it’s dangerous to conflate the two.

There has long been an important and consequential discussion about the proper, constitutional role of police, the proper, constitutional role of the military, and the ramifications of blurring the lines between the two. In many ways, it’s a debate that dates back to the founding era, when British soldiers stationed in the streets of colonial American cities — Boston in particular — led to animosity, anger, and eventually violence. It was a precipitating factor in the Revolutionary War, it’s a big reason why we have the Second, Third, and Fourth Amendments, and it’s why the Founders were deeply distrustful of standing armies.

In six months, the Trump administration made that debate irrelevant. It has taken two-and-a-half centuries of tradition, caution, and fear of standing armies and simply discarded it.

We are now in territory so uncharted that the framing of the police militarization debate no longer works. Having that discussion requires at least a shared understanding that both police officers and soldiers are obligated to uphold the Constitution and the rule of law. Over the years, I’ve had clear, often pointed disagreements with police officials and their supporters over how to balance police safety, public safety, and individual rights, and about whether we do a sufficient job holding cops accountable for abuse and misconduct.

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Is calling out the National Guard strictly necessary for protection of federal property?

President Donald Trump’s controversial federalization of members of the California National Guard and his deployment of at least 700 active-duty Marines to Los Angeles has raised a series of novel, important, and challenging questions about the scope of the Executive Branch’s legal authorities when it comes to domestic use of the military, reported Just Security.

On one hand, the Posse Comitatus Act of 1878 generally forbids use of federal armed forces for civilian law enforcement unless a statute specifically authorizes it. Although the Insurrection Act has long been understood to be one such statute, Trump has, quite notably, not invoked it here. On the other hand, the Executive Branch (with a bit of help from the Supreme Court) has long claimed inherent power to use military force unilaterally to “protect federal functions,” including the power to defend federal property and federal personnel from violence. Thus, perhaps the dominant question Trump’s military deployment raises is the shape of the Venn diagram created by these two opposing forces. Are they mutually exclusive? If they overlap, which one prevails? Or put more basically, where does this “protective power” end, and (generally prohibited) law enforcement begin?

In our view, there are three possible answers to this question. On the first view, the protective power can include law enforcement—and overrides the Posse Comitatus Act when it does. On the second, the protective power, as an exercise of Article II authority, cannot be understood to include any typical law enforcement activity—and so such activity is unlawful unless specifically authorized by congressional statute. On the third, the answer is somewhere in between—where the protective power does not generally authorize law enforcement activity, but does when that activity is incidental to the protection of federal property and personnel (such as arresting individuals while they are attacking a federal building).

As we explain in the discussion that follows, we think that there are strong arguments to be made in support of both the second and third options—but not the first. More to the point, we think Congress has been far more clear than is widely believed about what its view is—in a way that calls into at least some question what the Trump administration has thus far used federal military forces for in and around Los Angeles.

1. Protective Power as an Exception to Posse Comitatus

The Posse Comitatus Act itself bars domestic use of the military “to execute the laws” “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Obviously, nothing in the Constitution “expressly authorize[s]” the President to protect federal functions. Instead, such an Article II power is, at best, implicit—derived from some combination of the Vesting Clause and the Take Care Clause.

By itself, that ought to resolve any debate over whether any protection of a federal function is therefore exempted from the Posse Comitatus Act’s ban, whether it involves law enforcement or not. But there is also plenty of Founding-era history supporting the view that Congress, and not the President, would have broad power to define the circumstances in which the military could be used domestically. Indeed, the Insurrection Act itself derives from statutes Congress enacted in 1792 and 1795, both of which reflected the universal understanding at the time that the President could use military force “to execute the laws of the union” only if Congress had specifically authorized him to do so.

And, to its credit, the Department of Justice in the current litigation over the Los Angeles deployments has seemingly embraced this view. As it argued in its very first brief:

“Plaintiffs’ objection based on the Posse Comitatus Act is equally misdirected. Neither the National Guard nor the Marines are engaged in law enforcement. Rather, they are protecting law enforcement, consistent with longstanding practice and the inherent protective power to provide for the safety of federal property and personnel.” (emphasis in original)

(See also the most recent brief at p. 29).

Thus, not only do we find wholly unpersuasive any argument that the protective power overrides the Posse Comitatus Act; we don’t understand that to be the Trump administration’s litigating position, at least thus far.

Congress has been far more clear than is widely believed about what its view is—in a way that calls into at least some question what the Trump administration has thus far used federal military forces for in and around Los Angeles.

2. Posse Comitatus as a Law Enforcement Ban

At the other end of the spectrum is the argument that the protective power cannot fairly be understood to include any law enforcement functions—that it does not encompass searches, seizures, arrests, or any other activity similarly characteristic of law enforcement. The Ninth Circuit, for example, has interpreted the Posse Comitatus Act to prohibit any direct participation by the military in actions that “subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.” Thus, on this view, even where what might be viewed as law enforcement activity by the military is necessarily incidental to protecting federal buildings or personnel, it is still prohibited without clear congressional authorization.

Congress put at least a thumb on the scale in this direction in 1981—when it enacted what is present-day 10 U.S.C. § 275. Under that provision,

The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.

Although this provision is focused on military support for civilian law enforcement agencies, the authoritative House Report is much clearer on how Congress understood the relationship between the protective power and the Posse Comitatus Act:

Certain military activities, although otherwise prohibited by the Posse Comitatus Act, are permissible if expressly authorized by statute. These permissible military actions are specifically defined and are generally restricted to instances involving civil disorders (10 U.S.C. 331–36), disasters (42 U.S. 4401–84 and 1855), and threats to federal property (see letter from Mary C. Lawton, Office of Legal Counsel, Department of Justice, to Deanne Siemer, General Counsel, Department of Defense, March 24, 1978 at 3; see also United States v. Banks, 539 F.2d 14, 16 (4th Cir. 1976). The other specific and “express” statutory exceptions to Posse Comitatus include: (1) 16 U.S.C. 23 and 16 U.S.C. 78 (protection of federal parks); (2) 18 U.S.C. 112(f) and 1116 (protection of foreign officials, official guests, and other internationally protected persons); (3) 18 U.S.C. 351 (crimes against members of congress); (4) 18 U.S.C. 1751 and 3056 (protection against crimes against the president); (5) 22 U.S.C. 408, and 461-462 (enforcement of the neutrality laws); (6) 42 U.S.C. 1989 (execution of warrants relating to certain violations of the civil rights laws); (7) 42 U.S.C. 3756 (loan of services, equipment, personnel and facilities to LEAA [Law Enforcement Assistance Administration]); (8) 43 U.S.C. 1065 (removal of unlawful enclosures from public lands); and (9) 50 U.S.C. 220 (enforcement of the customs laws).

Thus, § 375 was enacted against a backdrop in which the presumption is that activities are prohibited unless they are statutorily authorized. In a note accompanying the first sentence of the above passage, the House Report rules out any notion of a separate Article II authority in reference to the Posse Comitatus Act. The note states in full: “The statute permits constitutional exceptions. However, there are none.” Thus, Congress’s view appears to be that the protective power is not an “exception” to the Posse Comitatus Act; it is defined in such a way so as to not even implicate it.

Note: The Office of Legal Counsel has relied on the House Report and accompanying Conference Report as authoritative guides for determining the scope of permissible military action and the Posse Comitatus Act.

3. The Hybrid: Law Enforcement Only as Necessarily Incidental to Protection

Although we generally find Congress’s view satisfying, it raises one puzzle: What about the Supreme Court’s decision in In re Neagle, which held that the President did not need statutory authorization to appoint a deputy U.S. marshal to protect a Supreme Court Justice from an attempted assassination? Even if Deputy Neagle wasn’t exercising “law enforcement” authority when he shot and killed David Terry in defense of himself and Justice Field, it would be a very strange result if he had the power to shoot at Terry, but not to arrest and detain him. The point is not that Deputy Neagle had general law enforcement power; it’s that he had those powers that were necessary to discharge his (valid) duty to protect Justice Field.

We think the 1981 amendment can be read consistently with this view. As the 1981 Conference Report noted,

Nothing in this section, however, limits the inherent authority of military personnel to defend themselves or to protect federal property. Nothing in this chapter adversely affects the authority of the attorney general to request assistance from the department of defense under the provisions of 21 U.S.C. 873(b). The limitation posed by this section is only with respect to assistance authorized under any part of this chapter.

[Update: Further to our point, the above passage might be read even more narrowly as an emergency exception. The House Report states: “Nothing in this section, however, changes the existing exceptions to the Posse Comitatus Act which allow military personnel to protect lives and federal property in emergency situations when they are involved in the performance of a lawful activity. For example, under current law, and under this proposal, nothing prohibits an air force pilot operating military aircraft from protecting him or herself from aggressive or destructive acts of a drug violator while on an authorized mission.” (We thank Chris Mirasola for this point.)]

Consistent with this understanding, long-standing Defense Department policies state that it is permissible for the military to engage in at least some law enforcement activity in the protection of federal government functions:

Permissible Direct Assistance. Categories of active participation in direct law enforcement-type activities (e.g., search, seizure, and arrest) that are not restricted by law or DoD policy are …

Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances because:
…
When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions. Federal action, including the use of Federal military forces, is authorized when necessary to protect Federal property or functions. (emphasis added).

The key, in our view, is the bolded language. The question is whether the specific search, seizure, and arrest are “necessary to protect Federal property or functions.” Sending armed troops along with ICE agents on immigration raids can’t possibly meet that test, whereas stationing troops in front of a federal building and authorizing them to arrest those who attack it is. It would also be completely unprecedented to use the protective function to protect enforcement officials – and in a way that entangles the military forces in the very act of law enforcement. The key, in our view, as reflected in both the 1981 enactment of § 275 and the Department of Defense’s own long-standing view, is that law enforcement qua law enforcement is strictly prohibited. Only if the compulsory action is necessary (and incidental) to the protection of federal property or personnel can it be said to have any basis in Article II of the Constitution.

Of course, law enforcement activities can be authorized by other statutes. But we’re not at all persuaded that 10 U.S.C. § 12406 is such a statute. And it would not resolve the use of the Marines. Thus, in our view, the central legal question arising out of the use of military force in and around Los Angeles is not whether the troops are engaged in any “law enforcement-like activities,” but whether those activities are strictly necessary (and incidental) to the protection of federal property and functions. Insofar as they are not, we believe they violate the Posse Comitatus Act.

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