The following is a lightly edited transcript of the June 10 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Over the weekend, President Donald Trump ordered up the National Guard to deal with violence that broke out in Los Angeles in relation to protests of Trump’s immigration policies. This has angered California Governor Gavin Newsom, who is now suing the administration over it. But now Trump is saying he might send the Marines into California, which makes this whole thing even worse. We think that this whole saga is best seen as a test. Trump is testing how the country will respond if he sends troops into American cities. Are we passing that test? We’re trying to unravel all this today with former federal prosecutor Barbara McQuade, who’s the author of the book Attack From Within: How Disinformation is Sabotaging America. Barbara, thanks for coming on.
Barbara McQuade: Thanks for having me, Greg.
Sargent: So to catch everybody up, Trump called up the National Guard without the input or assent of Governor Gavin Newsom, who has said law enforcement was managing the situation just fine. Barbara, can you walk us through why this move by Trump was itself a grotesque abuse of power?
McQuade: Well, if you look at the section that President Trump invokes as the authority, it is a federal statute that gives the president the authority to call in the National Guard when there is a rebellion or danger of rebellion against the authority of the U.S. government. But it specifically says that when the president does so, the order for these purposes shall be issued through the governors of the states. Now, according to Governor Newsom’s lawsuit, that’s not what happened. Instead, the directive went directly to the military leader. So it’s a process issue—but when it comes to the law, process is everything, especially the idea that you are going to federalize the National Guard, put them in place, and not follow the proper process. It’s such an aggressive use of law enforcement that the idea that you would circumvent the governor’s office strikes me as an abuse of power.
Sargent: And Barbara, there’s some question about whether there’s actually a rebellion taking place on the ground in Los Angeles. It sure doesn’t look like what you would normally associate with a rebellion.
McQuade: Yeah, this is an area where the president gets an awful lot of discretion to decide whether he believes it’s necessary to send in military troops to quell a rebellion. But just because you can do something doesn’t mean you should. Restraint is often a very appropriate use of discretion in these situations. And I think one also has to ask whether sending in troops is going to calm passions in the area or whether it’s going to inflame passions. So yeah, the law talks about rebellions, domestic unrest, things that one would imagine would equate with violence, a situation that has spun out of control for the police to handle. Instead, what we have is something like 500 protesters, maybe some throwing of rocks. And when the governor and the mayor have specifically said, Please don’t come, we think it will only make matters worse, the overriding of their judgment does suggest that maybe there’s something more afoot than a necessity and a president trying to solve a problem as opposed to trying to create a problem.
Sargent: It’s funny that you bring up this question of whether this will inflame passions or calm them. Another question is whether Trump actually wants passions inflamed, which I think he very much does. Trump just escalated matters. He was asked whether he’ll send the Marines into California. Listen to this.
Reporter (audio voiceover): Are you going to deploy Marines in California?
Donald Trump (audio voiceover): We’ll see what happens. I mean, I think we have it very well under control. I think it would have been a very bad situation. It was heading in the wrong direction. It’s now heading in the right direction, and we hope to have the support of Gavin because Gavin’s a big beneficiary as we straighten out his problems.
Sargent: Barb, it’s pure fantasy that Trump is the one “straightening out” the problem here, as he says. Trump cannot use the National Guard for specific domestic civilian law enforcement, and it seems like they’re just mainly protecting federal buildings anyway. But what do you make of the threat to send in the Marines? As of now, Trump hasn’t invoked the Insurrection Act, and so the Marines wouldn’t have any legal basis for carrying out law enforcement anyway, right? What would be the point? What would he be trying to accomplish by sending in the Marines?
McQuade: Well, I don’t know that he really plans to do it, first. I think some of this is the very thing I talk about in my book, which is using language to normalize certain conduct, to talk about it as if it is commonplace—as you said, a test, a trial balloon. What’s the reaction to it? Certainly there will be people who oppose this idea. Certainly in a blue state like California, no doubt there will be some outcry. But maybe that is a political battle that President Trump has calculated he wants to fight because he will get people on the side of immigrants defending the rights of protesters. And he can be perceived as the person who cares about law and order and restoring public safety and expelling immigrants from our communities.
That is likely something he believes is a political win for him. So the more he talks about sending in troops and being tough, I think the more political points he scores. But of course, if he does decide that the test is going well for him, that this is a popular move, maybe we do see at some point.... Again, he has a lot of discretion to decide when there is an emergency such that it is necessary to call in the military. But it seems to me that these are emergencies of his own creation designed to give him the opportunity to come in and save the day. It seems more about scoring political points than about protecting public safety.
Sargent: Certainly does. So the state of California is now suing the Trump administration over the decision to activate the National Guard. Trump activated the National Guard, as you mentioned earlier, by using a statute that specifies that such orders will be issued through the governors of the states. And here, that appears not to have happened. Does California have a good case here?
McQuade: I think they do. What’s interesting with this administration—because of the people that President Trump has put in place in his administration, some of whom seem to be poorly qualified for their jobs—[is] it’s hard to ever know whether they were just incompetent and missed that part of the statute or whether they’re deliberately steamrolling through legal requirements. Sometimes Donald Trump in the past has been successful in winning by losing. So even if a court says, No, you can’t do it that way, I imagine he will say, A leftist radical judge who should be impeached ruled against us on a legal technicality. And that kind of argument might appeal to his political base. So I think sometimes these calculations are, We don’t care what the law says, we care more about winning on the political scorecard.
Sargent: I want to pick up what we’ve both talked about here, which is that this is a test run by Trump. The president was also asked on Monday about border czar Tom Homan’s warning that he might arrest Gavin Newsom, which Newsom had responded to by daring Homan to come and arrest him. Listen to Trump here.
Reporter (audio voiceover): Gavin Newsom is ... he’s daring Tom Homan to come and arrest him. Should he do it?
Trump (audio voiceover): I would do it if I were Tom. I think it’s great. Of course, Gavin likes the publicity but I think it would be a right thing.
Sargent: Barbara, Trump said, “I would do it. I think it’s great. I think it would be the right thing.” That’s not exactly a direct call on federal law enforcement to arrest an opposition leader, but it’s pretty damn close, isn’t it?
McQuade: Well, yes. Certainly if anybody is to violate the law, whether they’re a Democrat or a Republican or even a someone in a high elected office, they’re not above the law. So the important word in that sentence, I suppose, is “would.” He seems to be imagining a scenario where Governor Newsom has, in some way, violated the law. And if that’s the case, then I suppose an arrest might be appropriate. But it’s also a violation of the idea of improper command control. We typically defer law enforcement decisions to police officers on the ground and their chain of command and independent prosecutors. We don’t have the president directing an arrest from the Oval Office, especially of some other leader of a separate sovereign. So I think it’s deeply disturbing that we’ve got a president even speculating about that possibility.
Sargent: I just wonder, as someone who works in the Justice Department, how do you think prosecutors and senior DOJ officials receive something like that when it’s said by the president of the United States?
McQuade: I think they cringe, because even if they were to do it now, it would seem politicized. It would seem that Governor Newsom had been called out for selective prosecution. If he is to be arrested now—even if through some far-fetched scenario [where] Governor Newsom in some way actively obstructed an investigation or an arrest—it’s really now almost impossible for them to do their jobs because it will look like they’re simply following the directive of the president to interfere with their independent law enforcement judgment. So I think whenever you have President Trump saying these kinds of things [like] you ought to charge this person or you ought to arrest that person, I think any prosecutor who works in good faith has to cringe more than a little.
Sargent: I want to ask about the Insurrection Act one more time. As we mentioned before, Trump hasn’t invoked that, so he can’t really use the National Guard for things like domestic civilian law enforcement. But if he were to invoke the Insurrection Act, that would change things, right? Can you explain what that would look like, and do you expect it?
McQuade: It would mean that federal troops would not simply be there in this supportive role as they are now in Los Angeles. They’re not able to actively participate in any arrest or police activity. They can only serve as reinforcements. Maybe they can conduct some surveillance. Maybe they can do patrols. But they are not there to arrest civilians. If this were invoked, it is an exception to the Posse Comitatus Act, which prohibits the military from participating in police work—and they could do police work. They could be arresting people on the streets. They could be taking people into custody. They could be knocking down doors and grabbing people who flee inside. They could be executing search warrants and arrest warrants.
I think it’s a very dangerous thing. It’s there if you need it in an extreme dire emergency—but to use it in a case like this where there really is very little evidence to suggest that it’s necessary, I worry that number one, we will see some civilian-officer interaction that they’re not properly trained for. These guys load sandbags during a hurricane. These are not people who are accustomed to executing arrests. So that lack of training, I worry, could put them in a very difficult position. My guess is even they don’t want to be there. And they will have to do something they’re not accustomed to doing, they’re not trained to properly do, and we will see some bad incident that will cause even more unrest.
I worry that it’s bad for the morale of the National Guard. These are people who get called up from their civilian jobs to protect our country and they do so in times of emergency. They go to areas of floods and hurricanes. They may even have to defend the homeland from military incursions. But I don’t think they signed up to fight against in combat with their fellow citizens. And I also worry it will undermine the reputation of the military. They’re recruiting. If they are seen as people who are put on the streets against our own citizens in hand-to-hand combat, then I think that that will cause them to have recruiting problems—for who wants to become a member of the military or the National Guard? Just because you can do something doesn’t mean you should. Even if it’s legal doesn’t mean it’s wise. And so I hope it doesn’t come to that. I hope that we pass this test by having enough public outcry, just as you are leading today, to cause wiser minds to prevail. I think a goal of this process is to curry political favor—and if instead it backfires politically then I think that will be the end of it.
Sargent: That brings me to Stephen Miller’s tweet, to close this out. He tweeted out one word about what’s going on in Los Angeles, “Insurrection.” It’s very clear that Miller and probably the other authoritarians or fascists around Trump actively want him to invoke the Insurrection Act. Do you think I’m right about that? Do you think that there’s a real push inside for this? It looks to me like this is now really actively on the table from the point of view [of] at least some of Trump’s top people.
McQuade: Yes. Again, I don’t know how disciplined they are in this White House. You would think that in prior administrations, if somebody who were a close adviser to the president would put something out like this, it would be very strategic and there was a reason for doing it. In this administration, I don’t know that they have that kind of discipline. But [for] somebody as high level as Stephen Miller to put something out there, I think he is suggesting that this is an insurrection—I don’t know what he means by the one word, but I assume it’s descriptive and that he’s not cheering it on [and] he’s not encouraging an insurrection—that he thinks this is an insurrection. And if it is an insurrection, then that means that President Trump can send in military troops and give them those law enforcement powers, and that he should do that. So it seems to me he is ginning up support for that idea. And again, it’s really just firing up the base, the law and order immigration hawks, to say, Let’s go, this is great. Responsible law enforcement officials bring calm to chaos; they try to deescalate. And instead, what we’re seeing is an effort to inflame passions.
Sargent: So if this really is a test of how the country will respond if Trump sends troops into cities, are we passing this test or are we failing it, Barbara? How are we doing?
McQuade: Well, I think at the moment we’re doing OK. I guess it’s hard for me to be a barometer. I’m not a pollster. I don’t know how the vast majority of Americans are responding to this, but I think the media has paid appropriate attention to it. I think there are more protesters out there now than there were before, so I don’t know that they have quelled any of the protesters. And I think it’ll remain to be seen. I think Governor Newsom’s lawsuit is a very good and strong response. I think he will win. And I think when he wins, that will also be a strong response. As we said, I’m sure we’ll get response from the president simply attacking the judge as opposed to the judgment. But I think all of these ... we need to have a response that comes from a number of different constituencies to stand up to these kinds of heavy-handed tactics. And so far, it seems like that’s happening.
Sargent: Such a good point, that Newsom responding with the lawsuit. And by the way, we should also underscore that over 20 Democratic governors put out a strong statement condemning this as well. These are the types of things we want to be seeing to be reassured that we’re passing this test—and that the country and its institutions are standing up at a moment of crisis. Barb McQuade, it’s so good to talk to you. Thanks for coming on.
McQuade: Thanks for having me, Greg.
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