Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Barbara McQuade: Thanks, Greg. Glad to be with you.
McQuade: Well, it was interesting because you may recall that Judge Breyer initially did block the initiation of troops into Los Angeles, finding that there was an insatisfactory finding of an emergency. That was overturned by the Ninth Circuit Court of Appeals that said it’s the president who gets to decide whether there is or is not a rebellion and whether he should send troops in. But what this decision found was something different. That is, once they got there, they violated the Posse Comitatus Act. And he’s got a nice history in there of what that is. People probably know that the Posse Comitatus Act is the statute passed in the 1800s that makes it a crime for military troops to perform law enforcement tasks. And that comes from our history before the revolution when British soldiers were stationed in the colonies enforcing the law. And the colonists really blanched at that. And so that was embedded in our Constitution and into our laws that the military is supposed to defend us from foreign enemies and our local law enforcement departments or federal law enforcement agencies are supposed to protect us from crime.
Sargent: So let’s come back to what happens down the road in a minute. First, let’s listen to some audio of Trump speaking to reporters Tuesday after the court ruling was handed down. First, this is Trump threatening to send troops back into California.
Sargent: And second, this is Trump stating straight out that he’s definitely sending troops into Chicago.
Sargent: Barb, clearly Trump is angry about the loss in court and his instinct is to respond to it by saying I’m resending troops to California and I’m sending troops to Chicago even though its governor and mayor have explicitly said they don’t want this to happen. In both cases, he’s just bullshitting like crazy. Crime has actually come down in both cities and in D.C., which he also mentions. I’ve got to say, this does not strike me as someone who’s capable of entertaining even for a second that what he’s doing might be illegal. What was your reaction to those rants?
Sargent: Well, we’re already seeing from one of Trump’s U.S. attorneys how they’re going to try to get around the ruling. This guy put up on Twitter some pretty wild spin. He said that the military has never engaged in direct law enforcement operations in L.A. But the ruling from Judge Breyer was unequivocal. He wrote that the administration has “systematically used armed soldiers and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles, violating Posse Comitatus.” Barb, it seems to me the U.S. attorney is putting his finger on the issue, even though he’s playing word games, by saying that the military has not engaged in direct law enforcement. Can you unravel this for us? Is this going to be where they go to? It’s not a direct act of law enforcement. It’s indirect?
Being tough on crime is laudable. It’s important. I think nobody wants to live in a city where there is violent crime. But remember, the reason troops went in there was to stop civil unrest in response to protests for immigration enforcement. There’s no rebellion going on right now for the troops to repel. And so I think that they ought to be reviewing the court’s order and deciding whether they have a basis for an appeal rather than attacking those who share the news.
McQuade: Yeah, I think so. Now, I suppose one could quibble about what actually entails the law enforcement activities. I suppose conducting an arrest would be clearly a law enforcement activity. Searching someone’s home would certainly be a law enforcement activity. Is it a law enforcement activity when you set a perimeter and you don’t let anybody pass? When you engage in crowd control—in the opinion it says they were using rage shields and batons and helmets. Is it military activity when they control the flow of traffic and block roads and streets? I think that is law enforcement activity. That is the work that police officers do when there is civil unrest in a city or efforts to control crowds. I’m sure we’ve all seen it for special events in our own cities. If you’re in town in the evening during a special event, you’ll see police officers in uniform performing those activities. The fact that the military is doing that, I suppose that’s where they will argue that there’s some gray area there. But what the court found is this is law enforcement activity. It is a violation of the Posse Comitatus law. And unless and until another court decides otherwise, they need to cease and desist as of September 12.
Trump (audio voiceover): Criminals. These are hardcore criminals. We took many people off the streets of Washington, D.C. They’re hardcore. They’re not going to be good. In 10 years, in 20 years, in two years, they’re going to be criminals. They were born to be criminals, frankly. They were born to be criminals and they’re tough and mean and they’ll cut your throat and they won’t even think about it the next day. They won’t even remember that they did it.
McQuade: Yeah, it’s really interesting. He’s talking about criminals who will slit your throat and other kinds of things. Again, thinking about the purpose for sending troops to L.A. The purpose there was purportedly, maybe pretextually, to quell rebellion and civil unrest, protesters, people who are throwing rocks at police officers or at federal property. He’s now conflating that order with ordinary street crime in Washington, D.C. And here again, he uses this trick of disinformation, which is to take things that have a germ of truth to them and then spin them out of control. Is there violent crime in Washington, D.C., or Chicago? Of course there is. Is there too much? Any violent crime is too much. Any murder is one murder too many. However, we have seen law enforcement strategies in both those cities working effectively to bring down the violent crime rates.
Sargent: Well, I just want to underscore the importance of what you just said there, which is that every time he says, I’m sending in the military and my justification is the murder rate or crimes off the charts, or anything like that, he can’t do that, right? He conflates what’s going on with Washington, D.C., and other states. And I think there’s a reason for that, which obviously is that in D.C. he actually has a lot more latitude, a lot more authority to do this sort of thing than he does in other states. But you’re right. He’s conflating his original justification, which was a carefully—well, carefully is the wrong word—a legal reason that was an ostensible legal reason that was drafted for it in keeping with what they say is the law with, on the other hand, this excuse, which is rooted in crime and essentially a promise to do what he’s not allowed to do, which is use the military for domestic law enforcement. He’s essentially admitting it’s all illegal.
In addition, prevention programs are what help the most. So when we’re seeing these reductions in crime in cities across the country, it is because of these intervention programs where violence interrupters are working in communities and are bringing people off the streets, having them put down their guns, providing resources. Donald Trump, of course, cut federal grants for community groups that prevent crime back in April. So this to me is all about a show of force, not about really effectively or thoughtfully reducing violent crime. One more point I’ll make is so far the cities he has threatened are all in blue states. We have Washington D.C., not a state, but a district. We have Los Angeles in the very blue California. We have Chicago in the very blue Illinois. Where we do have violent crime, but we have not seen any federal troops, are Detroit (Michigan is a state that voted for Trump), St. Louis (Missouri is a state that voted for Trump), Memphis (Tennessee is a state that voted for Trump). So if he really cared about focusing on violent crime, it seems like he would be focusing on all those cities and not just cities in blue.
McQuade: Yes, I think it is. I’ll be curious to see. The last time Judge Breyer ruled against Trump’s deployment of troops in L.A., the Ninth Circuit Court of Appeals reversed him. We’ll see what happens there. I imagine ultimately this case will go to the U.S. Supreme Court. And I fully hope and expect that this court would honor the Posse Comitatus Act. But one of the things we’ve seen is this particular Supreme Court, and I’m not one who believes that the court is in the bag for Trump, but they are of the view of what was one time considered a fringe theory but is now going mainstream: this unitary executive theory that the president has all of the executive power. And they’re very respectful of his executive power and very deferential about second guessing his use of executive power. So I am not certain that we will see the Supreme Court stop him the way we have seen lower courts do that.
Sargent: I will say, Barb, every last little bit of what I’m hearing from Trump points to nothing but an escalation. Barb McQuade, thanks so much for coming on. Harrowing stuff, though.
McQuade: Yeah, thanks very much, Greg. Appreciate the chance to talk with you.
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