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This week, we take a deeper look at the legal issues involved in President Donald Trump’s dangerous effort to mobilize the California National Guard and the state’s challenge to the move. Getting a better understanding of the statutory powers and theories involved is key because, in the best-case scenario, this ongoing chaos will be resolved through legal fights in court.

But I want to be clear that discussing the arguments should not distract from the fact that the president is attempting to use the military in a law enforcement capacity over the objections of a sitting governor, setting up an incendiary situation that the country hasn’t seen since the Civil Rights era.

As always, thank you so much for reading.

– Jacob Knutson, reporter

Catch up quickly 

• A D.C. Court of Appeals panel of three judges all appointed by Trump said the government for now doesn’t have to comply with a lower court’s order requiring it to give due process to hundreds of Venezuelan immigrants who were removed and imprisoned in El Salvador under the Alien Enemies Act. It was not a final decision on the matter.
  
  
• A federal grand jury formally indicted Rep. LaMonica McIver (D-N.J.), accusing her of “forcibly impeding” federal officers during a scuffle with Homeland Security agents in Newark last month. The charge is a felony that carries a maximum sentence of 17 years in prison. She plans to plead not guilty.
  
  
• A federal judge determined that the Office of Personnel Management violated federal law by giving Department of Government Efficiency (DOGE) officials access to data on current and former federal employees and prospective hires. The judge issued a preliminary injunction to block further DOGE access.
  

‘Fuel on the fire’: Trump’s National Guard memo goes far beyond California

In federalizing the California National Guard over the objections of Gov. Gavin Newsom (D), Trump is asserting broad powers that could be used against any state, legal scholars and national security experts told me in recent days.

The experts warned Trump’s deployment of the military to Los Angeles undermines federal law barring the government from using military personnel in civilian law enforcement and may lead to further overreach.

“This does not seem to be a legal use of military force, and it’s certainly not an appropriate use,” David Janovsky, a senior policy analyst at the Project on Government Oversight, told me. 

“There are very very limited carve-outs in federal law for when you can do something like deploy the National Guard under federal authority, and those conditions just haven’t been met here,” he added. “This is not an insurrection. This is not a rebellion.”

Whereas past presidents have used the military for specific and limited purposes, Trump’s presidential memorandum federalizing the Guard is limitless.

The memo doesn’t mention any state or specific National Guard units, and while it says Guard troops will be in federal service for 60 days, the duration is ultimately “at the discretion of the Secretary of Defense.”

“The idea that you can delegate the Secretary of Defense this authority to deploy the National Guard across the country is a use of these powers that I don’t believe we’ve seen before,” Chris Mirasola, a national security law professor at University of Houston Law Center, told me.

To mobilize the Guard troops, Trump cited 10 U.S.C. 12406, an archaic statute that allows the president to mobilize the Guard when the country faces foreign invasion or rebellion or when the president is unable to execute laws with regular resources.

Trump’s memo attempts to justify mobilization by asserting ongoing rebellion against the government, citing unspecified “incidents of violence and disorder.” It specifically categorizes “protests or acts of violence” that inhibit the execution of the laws as a form of rebellion.

This is alarming in light of the Department of Justice (DOJ) recently alleging that speech can inhibit the execution of laws. It charged David Huerta, the president of one of the largest unions in the country, with conspiring to impede an officer — a felony — for protesting an Immigration and Customs Enforcement (ICE) raid at a private business June 6.

In the criminal complaint against Huerta, the DOJ claimed the labor leader attempted to “intimidate” officers by “banging” on a gate with his hands, taunting ICE officials for wearing masks and being near people screaming expletives.

California sued Trump earlier this week, alleging that he violated 10 U.S.C. 12406 because recent anti-ICE protests couldn’t possibly constitute a rebellion. Mirasola said this aspect of the state’s argument is strong but will ultimately depend on whether courts intervene and disagree with the executive branch’s definition of rebellion.

California also argued Trump violated the statute because it specifies that orders issued under it “shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.”

Instead of issuing orders through Newsom, California alleged that the federal government bypassed his authority and undermined states’ rights over state militias, a power that predates the Constitution.

California argued the statute at the very least requires that governors have the opportunity to consult with the president and federal officials about calling Guard troops into federal service. However, legal scholars have noted that there’s a lack of legal and historical precedent around the statute to bolster this aspect of the state’s argument.

10 U.S.C. 12406 just mobilizes Guard troops. It doesn’t assign them any missions or give them authorities. In ordering Guard troops and Marines to protect ICE officials and federal property, Trump is relying on a theory of executive authority called the “protective power.”

The theory asserts that presidents using troops to protect federal personnel, property and functions do not violate the Posse Comitatus Act, which prohibits using active duty personnel to execute laws.

The Trump administration is currently using the theory to authorize soldiers to accompany ICE officials on raids and temporarily detain civilians to in part “prevent harm,” according to the AP.  

The arrangement heavily blurs the line between military and civilian authority. It also gets the military closer to direct law enforcement without invocation of the Insurrection Act, one of the president’s most powerful emergency authorities that temporarily suspends Posse Comitatus.

“It is a strange invocation,” Janovsky said. “In some ways, I think it reflects a realization that even these officials who seem desperately eager to provoke and escalate the situation recognize that they couldn’t get away with the Insurrection Act here.”

Mirasola said he fears that Trump’s use of the military will result in escalation, giving him an excuse to claim additional powers.

“These moves are escalatory, and they are instigating protests in more cities, which increases the chances of some kind of unrest happening that would more readily support invocation of the Insurrection Act,” Mirasola said. “It’s fuel on the fire.” 

With protests against Trump’s mass deportation efforts now arising across the country, there’s growing fear that Trump may attempt to activate other state Guard for military-assisted crackdowns in other cities.

Update on Kilmar Abergo Garcia’s case

Kilmar Abergo Garcia is maintaining his lawsuit challenging his removal from the U.S. and imprisonment in El Salvador after being returned to the U.S. last week.

Abergo Garcia’s lawyers argued in a court filing Sunday that his return should not end Judge Paula Xinis’ investigation into whether Trump administration officials should be held in contempt for violating court orders to facilitate his return from El Salvador.

They also argued that the government remains in violation of court orders, including the Supreme Court’s April ruling, by bringing him to Tennessee rather than his home state of Maryland “so that he could be charged with a crime in a case that the Government only developed while it was under threat of sanctions.”

The Trump administration charged him with allegedly transporting undocumented migrants, firearms and narcotics within the U.S. But the indictment against Abrego Garcia contains several suspect allegations.

For example, it claims he lied to police officers during a 2022 traffic stop by not revealing that he was coming from Texas, when other government documents indicate that he told officers specifically where he came from and his destination. Driving his family members, possibly including his own kids, is being used against him as evidence of criminality as well, according to a filing earlier this week.

Much of the government’s case against Abrego Garcia will depend on the credibility of the unnamed co-conspirators whose statements are being used as evidence against him. Notably, allegations from at least one central witness stemmed from an interview with an agent from Homeland Security Investigations rather than formal grand jury testimony.

To do list

• Despite Trump’s Oval Office threat to meet those who protest his multimillion dollar military parade in D.C. this Saturday with “very big force,” organizations have planned demonstrations in thousands of cities across the nation.