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The Militarization of American Cities Under Trump with Mary McCord
00:58:45
Main Justice co-host Mary McCord joins Chris Hayes' podcast to break down the legal and ethical implications of sending the National Guard into cities like Chicago and Portland.
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Mary McCord
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Chris Hayes
Simple.
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Mary McCord
If you talk to former generals or even, frankly, current military, if they're willing to talk about this, is that our armed forces, they are trained to go into combat against a foreign enemy and use lethal force. Their rules of engagement are completely different than the rules of engagement of domestic law enforcement, who are not supposed to be shooting to kill except for in extraordinary and limited circumstances and certainly not at protesters who are engaged in peaceful protest. And so it's not just that. It's, you know, fundamentally against the grain of what our whole system has built into constitution and statute for the last 250 years. It's also just not safe.
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Chris Hayes
Hello and welcome to why Is this Happening? With me, your host, Chris Hayes. As I speak to you on this Wednesday, October 8th, we have federal, well, Texas National Guard who are deploying to the outskirts of the city of Chicago in violation of what the governor of Illinois wants after a threat to federalize Illinois National Guard troops. We have an attempt by the Department of Defense to send federalized California National Guard troops to Oregon in contravention of the wishes of the governor there. That's currently being blocked under a court order. We've seen the National Guard troops of California federalized against the governor's wishes, which a judge found unlawful. We've seen Marines deployed as well to California. We've got NBC News reporting at this hour. There are discussions about invoking the Insurrection act inside the White House. That would presumably lead to more aggressive use of the military. And fundamentally, I think what we're all seeing here is, is a very clear and explicit plan to use the US Military, trained to defend the country against foreign enemies, as a tool of the state to be unleashed upon its own citizens. Donald Trump said as much in a gathering before 800 of the top military commanders. He said we have to fight the war within that. There's a war within that. We have enemies inside that we have to Train, you should use the cities of America as training. He's talked about using full force against protesters in places like Portland. Stephen Miller has talked about disrupting terrorist networks and terror networks which he's accused everything from from federal district court judges to attorneys general to local politicians to being a part of there is a very clear desire and attempt to use military force against U.S. citizens. And there's also a really deep set of very complicated questions about whether they can do that. I wouldn't say there's very complicated questions about whether they can do that morally or ethically. I would not even say there's a set of complicated questions about whether they could do that in the broadest sense of the spirit of what the country is a place where. I think we all understand there's a distinction between local law enforcement and criminal justice system and the military and that that distinction is actually essential to our self identity as a free people, along with not having to like show our papers. I think those are two of the things that we, those are sort of twin pillars of what we associate with a free society is both of those are being tested right now. And so I wanted to try to understand what the actual legal and historical regime is here governing the use of the military on domestic soil against Americans. And I have just the perfect guest who's a colleague of mine. Mary McCord is the executive Director of the Institute for Constitutional Advocacy and Protection and visiting professor law at Georgetown University Law Center. She was a federal prosecutor for 20 years. She was former acting Assistant Attorney General for National Security. She is of course also a contributor to MSNBC where she co hosts the podcast Main justice and is an expert in these issues of the legality of the use of the military and their use domestically. And so Mary, it's great to have access to your expertise today.
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Mary McCord
It's great to be with you, Chris, despite the circumstances in which we find ourselves discussing this.
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Chris Hayes
Well, I thought maybe. I know you're not a historian, but it did strike me as useful to kind of think of historical context here because, you know, the use of British soldiers and military to essentially engage in law enforcement in the colonies, particularly around search and seizure and particularly looking, you know, interdicting ships and trying to get at all those smuggled goods that they were obsessed with, quartering them in the homes of columnists, which is explicitly banned by the Third Amendment and the Bill of Rights. Rights. Maybe you could talk a little bit about how the founders thought about this and how central it was to how they thought about what the military could and could not be used for in a free republic, in the democracy that they were founding.
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Mary McCord
Sure. And you're right, I'm not a historian, but there are, you know, some of these things that I've had to study in order to just inform the legal arguments that we and others have been making about what's going on currently and about other types of uses of the military in the past and certainly at the time of the founding. I mean, one reason that, you know, the colonists first came over and settled here, one thing they felt strongly about is not having a standing army. And they preferred right, like period. And they wanted to rely on, and they used the term militias. Right. But they wanted to rely on militias for the defense of the colonies against whatever the threats might be. But that term militia meant all able bodied men between certain ages that when there was a threat to the colony, the governor could call them forth. And then they reported to the governor and were armed and disciplined by the governor and they became the governors, you know, the equivalent of the National Guard today. And you know, when the Constitution then was drafted at the founding, that Article 1 gave Congress the power to call forth the militia. Similarly referring to this, you know, fighting force, that of able bodied people that could be summoned to defend not only the states, but the federal brand new federal government and to provide for arming and disciplining them and organizing them. And so Congress starting back in 1792, passed the first of what had been a series of militia acts which eventually evolved into our modern National Guard system. Right. Which is a system of dual enrollment. When you enroll in the National Guard, you're primarily assigned in your state. You can be called into state active duty status, but you can also be federalized. And many National Guard get federalized to go overseas as you were in, and to fight in, you know, in combat in foreign armed conflicts that the US is involved in. They can also be used domestically by their own governors to do things like respond to natural disasters. And you know, they helped after Covid and things like that. And so that all developed over time. Similarly, over time in early years it became clear that just having these state militias were not going to be sufficient to the threats faced by the United States. So we do in fact have a standing army. But even as that evolved, you know, the founders and everyone since then has been clear we do not want that standing army, the military, involved in civilian affairs in the United States and certainly not in domestic law enforcement. And if I could just quote from Judge Immerget, who is the judge who issued the injunction you mentioned at the top of the episode, Chris, in Oregon, barring the use of federalized National Guard from anywhere, Oregon, California, anywhere for domestic enforcement. One of the things she said is this country has a long standing and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs. She went on to say, this historic tradition boils down to a simple proposition. This is a nation of constitutional law, not martial law. Defendants have made a range of arguments that, if accepted, risk blurring the line between civil and military, federal power to the detriment of the nation.
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Chris Hayes
Yeah, that is a striking summation of this basic tradition. Can we talk a little about. I mean, there's a few. So the National Guard is this, you know, is what these sort of early militias evolved into and became kind of regulated and guided by statute. There is, of course, also the standing army, which is enormous, one of the largest in the world, one of the most expensive in the world. The founders did not see their dream of no standing army survive very long. And in fact, you know, in many ways, the US Is kind of the opposite of that, I think it's fair to say.
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Mary McCord
Yes.
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Chris Hayes
So in that sense, it is always good reminder that, like, what the founders wanted about a lot of stuff, you know, isn't necessarily what we're dealing with. I think, you know, foreign bases in 80 countries, they would think was totally nuts as well. But I guess let's talk about the Posse Comitatus act, because that gets invoked a lot in these questions. And then maybe we could talk about the Insurrection act and just what those. What those acts say and why they're relevant to this question of when can the military be used for purposes that are essentially civil or domestic.
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Mary McCord
Yeah. So this is actually a criminal prohibition on the United States Armed Forces or federalized National Guard members from engaging in domestic law enforcement unless explicitly allowed by the Constitution or by an act of Congress. And I think this, you know, really grounds itself in that tradition of not wanting the military to be involved in civil affairs. And eventually Congress said, you know, we're going to pass a statute that makes that very clear. And when I say the U.S. armed forces, the exception would be the Coast Guard. The Coast Guard has separate authorities to engage in law enforcement in protection of our coast. And that means interdicting ships that are suspected, and there's probable cause to believe might be carrying illegal goods like drugs, for example. And it is actually, you know, not to change topics already. One of the issues we're having right now with the government using the Military to blow up boats in the Caribbean Sea, allegedly because they're carrying drugs. And our cartel members is we have a law enforcement mechanism for that. And it's the Coast Guard to interdict those ships, board those ships, seize the drugs and, you know, arrest the occupants. So that's the authority used. They're not blowing ships out of the water. But I digress.
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Chris Hayes
Well, we might come back to that though, because I have some thoughts on that too. So this, the Posse Comitatus Act, I mean, when you say it's a criminal statute, that's, I mean, this is a very heavy prohibition. Right. That it is a crime according to the statute. Right, that's right. You should employ the military for domestic law enforcement. And that is a legal expression of a pretty core fundamental concept that I think we all hold in a kind of, you know, folk sense that I was talking about before, which is that we just don't have the military do that kind of thing.
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Mary McCord
Yeah. And you know, there's a couple of things else that are sort of the flip side of that right. The 10th Amendment to the Constitution reserves all powers to the states that, that are not explicit to the federal government. And one of those important powers is the police power because it, you know, it is left to the states to engage in domestic law enforcement. And even though we do have federal law enforcement, we have the FBI, ICE is really a law enforcement agency. We have the Secret Service and atf. But the vast majority of law enforcement across the country is done by state and local police and sheriff's departments. And that is very much by design. It was not that there should be sort of this federal prim permeation of law enforcement and certainly not by the military. So I think that that's, you know, both of these things work in tandem to show what not just the framers, but Congress throughout history wanted for this country. And there are good reasons for this too, if you talk to former generals or even frankly, current military, if they're willing to talk about this, is that our armed forces, and you alluded to this earlier, they are trained to go into combat against a foreign enemy and use lethal force. Their rules of engagement are completely different than the rules of engagement of domestic law enforcement who are not supposed to be shooting to kill except for in extraordinary and limited circumstances, and certainly not at protesters who are engaged in peaceful protest. And so it's not just that. It's, you know, fundamentally against the grain of what our whole system has built into Constitution and statute for the last 250 years. It's also just not safe. Right. It's not safe to put military members armed on the streets of the U.S. where the rules are so different than what they're trained for.
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Chris Hayes
And we should note here, just because US History is always complicated and always fraught and almost never clear cut, that the origins of the Posse Comitatus act are a bit ignominious because they are.
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Mary McCord
They're ugly.
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Chris Hayes
It's passed in 1878 under Rutherford beat Hayes in the wake of the withdrawal of Union troops from the South. The Union troops were there preserving the fundamental constitutional liberties of the freedmen women. After they were pulled, those constitutional liberties were increasingly under attack. And part of the Casi comitatus act was we don't want your troops ever enforcing civil rights law. So there's just to give the whole story here and not to put like a romantic gloss on it, even though I think the core of the part that we recognize today as being kind of fundamental to liberty in the very distinct, I would even say sui generis context of Reconstruction, I think armed troops were necessary to preserve constitutional liberty. It's hard to think of that being the case now.
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Mary McCord
That's right. And then, you know, to that point about protecting civil rights, one of the provisions of the Insurrection act, which is an exception to pasi comitatus, is the use of the military to preserve civil rights when the state is not doing it. And we saw that after Brown v. Board of education during D.C. segregation. Right. I mean, it's one of the few times that that particular provision of the Insurrection act was used. And so, you know, and it was to ensure that the children could get into the schools when in fact, like the governor in Arkansas actually, you know, called up his own National Guard to prevent it. So there's a lot of historical underpinnings here, some awful, some less awful, but the theme remains.
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Chris Hayes
Yes. And I think the complexity is really worth sitting in a little bit. Right. Because when you think like, oh, calling up federal troops for some domestic purpose, it's like, yeah, well, you know, Eisenhower did that in Little Rock and that was done in Reconstruction. So, like, it does matter what it's being done for and the reasons it's being done. You say the insurrection you just mentioned. The Insurrection act was the other piece of legislation I talked about which creates basically a kind of set of exceptions to Posse Comitatus. Right. So posse commentators says you can't use the military for domestic law enforcement. The Insurrection act says, here are some examples in which you can. When is that passed and what Is that what's the sort of landscape that lays out?
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Mary McCord
Yeah, so it goes way back to the late 1800s, but it's had different variations over time. And it really makes up four different provisions of the United States Code right now. And the fourth is not particularly relevant here. The one that is used by far the most often is, you know, Title 10, Section 251. And this says that whenever there is an insurrection in any state against its government, the president may, upon request of the state legislature or the governor, if the state legislature cannot be convened, may call into federal service the militia of other states, meaning the National Guards and armed forces, permanent US Armed forces, as necessary to suppress the insurrection. And this has been used, except for desegregation. This is the provision that has been used the most often because every other instance has been at the request of the governor. Right. So the last time it was invoked was in 1992, after Rodney King was brutally beaten by police officers, and the police officers were acquitted in the criminal cases brought against him. And, you know, those were extremely violent and went on for many, many days and weeks. And the governor did request the military, and the military were provided, but that is how long it has been. And most other episodes, well, all except desegregation in history have been at the request of the governor. There are two other provisions that can be used without the governor's consent. But like I said, historically, desegregation is one of those instances. But that's not something that presidents have wanted to do for good reason. It's extremely controversial. And, you know, to do something like that over the objection of a governor, well, puts us in a position, kind of like the position we're in right now.
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Chris Hayes
Right. So clearly, I mean, and there are a bunch of legal, Basically, here's my read of this sort of situation. There are a bunch of very clear legal obstacles that have been erected over time, both through jurisprudence and decisions made by courts. The black letter of statute and tradition bar, a very, very high bar to use the US Military for anything that smacks of domestic law enforcement, on the one hand. On the other hand, the Trump administration very clearly wants to do this. Right. I mean, would you agree with that, that, like, whatever the law is, they have a desire to do it? It is not. I'm not. That's not me projecting. They say it all the time. Donald Trump said it to the commanders, like, as someone who worked in the national security space, when you heard him talking to them, when you heard that speech that he gave a few, I guess, about a Week and a half ago. And he talked about the enemy within. Like, what was your reaction to hearing that?
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Mary McCord
Well, I mean, I had multiple actions. It was certainly of a piece with the domestic terrorism Presidential Memor he had just issued, I think the week before that, several days before that, where essentially he's labeling people, U.S. citizens, people in the United States who might have views that I think he described as anti fascist, anti Christian, anti traditional values as he sees them, basically labeled those people as terrorists. And suggested in this order, he did not create any new authorities. I wanna be clear about that. No new crimes, no new surveillance authorities, no new search authorities or anything like. But basically this was a directive to the federal government, Department of Justice, Department of Homeland Security. Use every tool in your toolbox, criminal and otherwise, to go after people who harbor these views and entities, nonprofit organizations, et cetera. And so when you heard him talk about people based on their ideology, violent or not, as terrorists, and then a few days later heard him talk about the enemy from within and using the USC cities as training grounds for our military, that's a shocking combination of things. Because that's suggesting that. Yes, I mean, I don't have to explain what it suggests.
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Chris Hayes
No, no, explain.
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Mary McCord
I'm just a military force in our cities against US Citizens and others lawfully present here and maybe even others not lawfully present here, you know, based on their viewpoint and disfavored views.
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Chris Hayes
Basically. Because of disfavored views.
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Mary McCord
Yes, that's right. And again, our military who are trained, you know, if you're saying use it as a training ground, they get trained to shoot to kill in combat overseas against a foreign enemy combatant, not to do that in our cities. So, you know, I mean, he says lots of words that come out of his mouth that, I mean, there are people close to him who try to, you know, bring these things to fruition. But I do think our military leaders know far better than that, that how dangerous that would be. Not that they won't respond to orders from the commander in chief in terms of deploy, but they understand why you need to get coordinated with your armed forces and your federalized National Guard in terms of trained on the rules of engagement and what you can and cannot do and all that. And I think they will be more careful. On the other hand, they're under a secretary of defense who fired all of the top lawyers, the judge advocates general of the Army, Navy and Air Force, and said he did it because he didn't want any roadblocks to what the commander in chief might want to do. That's another really scary comment. Like you don't want their advice about what you want to do is legal or not legal, so you're just going to get rid of them. So, you know, and he, he talked about rules of engagement abroad being sort of like one of those roadblocks. And that's bad enough if we're talking about combat abroad because as we all know, there have also been really bad things that our military has gauged in, even against enemy combatants. But here in the U.S. i mean, that's just another real escalation.
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Chris Hayes
More of our conversation after this quick break.
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Chris Hayes
So you have a situation which, like the law, creates a very high bar and a very complicated legal terrain to make it legally permissible to do this. They clearly want to do it and I feel like almost from day one, but certainly since Los Angeles, it's like watching them try to solve a Rubik's cube of like, well, how could we get it? How can we make it work? You Know, and trying stuff. Right. And in the case of, you know, in the case of the Los Angeles deployment. Right. They had some narrow technical grounds. They said that they could federalize the National Guard against the wishes of the governor. They also used another legal rationale to deploy some Marines. And then the governor sued them and I believe won in court. Right. On the question of the federalization, is that correct?
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Mary McCord
They won in front of the district court judge. The Ninth Circuit stayed that injunction, and they're doing now, you know, more full briefing there.
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Chris Hayes
Right.
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Mary McCord
And it was two parts, Chris. And I think this is important because originally Judge Breyer in the district court enjoined the federalization of the National Guard under this technical provision you were mentioning is title 10, section 12, 406. And it's an interesting provision because it reads very similarly to the Insurrection act, but it's not the Insurrection act, so it allows for the federalization of National Guard. Doesn't say anything about the use of armed forces when there's a foreign invasion. Well, there's not whether there's a rebellion against the government of the United States or whether the president is unable with the regular forces to enforce federal law. And many of us, until it was used in la, when I say us, you know, legal scholars, academics, practitioners who sort of study these things, civilian military experts who've been judge advocates, general in the military, have never thought that that was a freestanding authority that seemed more like an implementation statute to implement the Insurrection act or to implement, when you're calling troops up to go abroad.
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Chris Hayes
Right, I see.
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Mary McCord
And so the fact that it was ever used on its own was something of surprise. And that really hasn't happened historically. It just hasn't.
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Chris Hayes
Oh, so this was a novel use of. Of that part of the code.
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Mary McCord
It was. And so originally, Judge Breyer said he did something very similar to what Judge Immerget just did in Portland. He said, I don't think the prerequisites are here. You know, there's no rebellion. I define. You know, he went through sort of what that definition is. And so there's no rebellion against the government of the United States here. And the government, the federal government has not shown that it is unable with the regular forces to execute the laws. In other words, police are capable of policing the protest. To the extent the prot. Are interfering or trying to interfere with Rice doing its job, the police are capable of doing that. The facts don't match up to what the provision says. That's what the 9th Circuit stayed. Stayed his decision. But meanwhile, the case Then went back in front of Judge Breyer who actually had a two and a half day trial on two questions. Is that section of the law an exception to the Posse Comitatus Act? And, and California said it's not. The US government said it is and if it is not an exception, are as a matter of fact the federalized National Guard. They're violating Posse Comitatus because they are engaged in domestic law enforcement. And the judge answered in the affirmative to both. He said as a matter of law, it's not an exception to Posse Comitatus. It would be a complete end run around Insurrection act if it was, would be totally redundant. So it's not an exception. And as a matter of fact, National Guard, the way you've been deployed in LA is in violation of Posse Comatitis Act. And he relied on the military's own guidance to its troops about what they can't do. And that list says they're prohibited to engage in pursuit, arrest, apprehension, search, seizure, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation, informal. That is now also up on appeal.
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Chris Hayes
Okay, so but this was a trial, right?
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Mary McCord
I mean he, he had evidence.
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Chris Hayes
Yes, he had evidence. Right. He says this is. You have violated. That's now up on appeal. So that stayed there was also the Marines got deployed under some other authority.
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Mary McCord
Right. So the Marines, which clearly are barred by Posse Comitatus unless there's been Insurrection act invocation. Right. Like no question there. The government didn't try to argue otherwise. What the government says that the Marines were doing and actually what originally said the National Guard was doing too was simply protecting federal property and federal functions. So this is their big loophole.
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Chris Hayes
Yeah.
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Mary McCord
Yes. But this is not based on a statute. This is not based on some authority that Congress provided. It's not based on a constitutional provision. It's based on a series of OLC memorandums. This is the office of legal Counsel in the Department of Justice that has.
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Chris Hayes
Oh, I didn't realize.
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Mary McCord
Has opined that it doesn't violate Posse Comitatus to simply protect federal functions and federal property. That has never been tested in court.
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Chris Hayes
I didn't know that. These are just OLC opinions.
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Mary McCord
Yes.
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Chris Hayes
So they, I mean one of the things that really someone once described, someone. I use this all the time and I'm sure I've quoted on the podcast before, but someone once described the January 6 plot like a person walking down the entire hallway of a hotel room and just trying every door to see if any of them were open and unlocked, locked. And that's kind of the way they go about everything. You know, it's like, let's try it. Yeah, sure. You know, this, this is, I guess, a colorable claim. We got a few OLC memos. Hey, let's try this part of the section. Let's try this. Let's try and try, try that door. Try that door and you know, if it's locked and move to the next door. If that one's locked, move to the next door. Like that is the, that is the way they tried January 6th. They just tried stuff. It's the way they lawyer, you know. Yeah, same see running up the flagpole. And you know, they have this court that is insanely solicitous of them, gives them unbelievably wide berth, particularly on the shadow docket, particularly in the things they do on a temporary basis. And, you know, it seems like they can go a long way with that.
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Mary McCord
I think that's what they are generally, you know, counting on. Right. That whatever roadblocks they might get in the lower courts, that they'll get a blessing from the Supreme Court. Now, of course, none of these issues have made it there yet. And to your door opening doors analogy, and this is so what happened in Portland. Right. So in Portland, there wasn't even nearly the same level of sort of violence against ICE by protesters that there had been in la. And again in la, I would argue, and certainly Judge Breyer found that the police were able to handle it.
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Chris Hayes
Yes. And it was largely, we should just be clear, there was largely property destruction and, and some chaos. It was not like, you know, people were not like in droves beating up ICE agents and stuff like that.
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Mary McCord
That's right.
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Chris Hayes
Yeah, that's.
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Mary McCord
That's right. And even when the ninth Circuit stated they did say that these things are reviewable, like the government made an argument, you can't, courts can't even review. If the President says under Title 10124 06, I can't with the regular forces, enforce the law that you can't review it. And I sort of said you can review it for good faith that the statute presumes that there'll be a use of honest judgment. Right. And when this is done so in Portland, though, factually it was even way more calm than in la. I mean, by the, there hadn't been arrests since June, according to the court and according to the declarations of witnesses. So when the state and the city of Portland challenged his use of this title 10124 06, and this went in front of Judge Imigut, she also Said, look. And she went in detail through the facts and she said, the President's, you know, proclamation here about inability to enforce the federal laws just is untethered to the facts. This is her words. She said, belied by everything that that's happened.
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Chris Hayes
She said, untethered to the facts.
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Mary McCord
Untethered to the facts. That's right. So good and right. And that also there was no rebellion. That's right. So she enjoined it. But what she did at that time, the order had just been to federalize the Oregon National Guard. So what she ordered and joined was the federalization of the Oregon National Guard. And this is your door opening analogy. So that's on a Saturday night, on Sunday, what does the President and the Secretary of Defense do? They say, okay, we're going to now send the already federalized California National GU Guard into Oregon. Yes, technically her order said you can't federalize the Oregon National Guard. But all of the rationale. Right, there's no predicate here for 12406. Also, she said this is a violation of the 10th amendment because if there's no constitutional authority for this and no statutory authority for this, which she just found there wasn't, then you're just violating the 10th Amendment. The 10th Amendment allows the states not only to exercise the police power, but also control their own state militias themselves and against other militias coming in. So of course, the state and the city ran right back to court and already like the same day, she basically gave the federal government a tongue lashing and then issued a second tro.
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Chris Hayes
It was wild.
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Mary McCord
Yes. No, no, federalized.
- [33:32]
Chris Hayes
She has emergency hearing and she's like, how stupid do you. I mean, I'm paraphrasing. How stupid do you think I am? Why are you wasting my time? What kind of issue do you think I am that you come back in here with this? You know, it's like a kid. It's like when you tell a kid to do something and they do like malicious compliance, you know, and they like, you say, pick up everything, and they like unplug the lamp and pick it up and put it on the dresser. Like you said, pick up everything. It's like.
- [33:58]
Mary McCord
You sound like you have experience in this, Chris.
- [34:01]
Chris Hayes
I mean, this is basically what the posture of the Department of Justice is in high stakes federal litigation.
- [34:08]
Mary McCord
And it's, you know, it's embarrassing. It's embarrassing. As a former federal government Department of Justice employee. Now, I don't know whether the lawyer in court had anything to do with that decision, but they're the ones who had to go into court. And you're right, the judge says, okay, you know, that stop the games. And then the issue says, no federalized National Guard, you know, period. May come into Oregon.
- [34:30]
Chris Hayes
Okay, so now there's a few other wrinkles I want to talk about. So there's the. Right. So the Marines. That's still being, being that. I don't know if we've. Is that being challenged?
- [34:37]
Mary McCord
That part of it seems they've been withdrawn at this point.
- [34:40]
Chris Hayes
They've been withdrawn, yeah. So but they're going to, you know, they'll try that again. We'll see if that gets challenged. So then there's this other. Because we have this. There is this. I mean, part of why I wanted to get you here, because this complex is sort of like when you think about the state militia evolving into the National Guard and the sort of dual authority. Right. Then we've got this other, like, kind of. I would say this, this falls in, in some senses in the more comical category, although it's still very high stakes, which is the. Like, he wants to, he clearly wants to send these. Send troops into the blue cities, you know, to, to sort of, you know, go to town on the populations that he thinks are, you know, not part of his coalition. Basically.
- [35:18]
Mary McCord
Yeah.
- [35:19]
Chris Hayes
But there are these legal roadblocks. And so then he sort of like, then a bunch of these consider red state governors were like, you can federalize my. You can federalize my state troops, Daddy. And it's like, wait, but you don't need him to federalize your state troops, Governor of Louisiana, if you want to call your National Guard to do something, you could call it out, but instead you've got the governor of Louisiana, like, raising his hand to say, please Federalize my troops, Mr. President. And also in Tennessee. Right. Am I wrong about this? Basically that they don't have to do this.
- [35:52]
Mary McCord
Yeah. Well, at least in their own state, they wouldn't have to do this for.
- [35:57]
Chris Hayes
New Orleans or Memphis. Those are the use cases they're talking about.
- [36:00]
Mary McCord
That's right. And in fact, that is what's happening in Tennessee. And so this is an authority we haven't talked about yet. There are three different statuses that the National Guard can be in. We've been talking about Title 10. When that's when they're federalized and then they're under federal control, and that's when they're barred by Posse Comitatus from doing domestic law enforcement or crime control, unless there's an exception. The other two statuses are straight up state active duty, your governor calls you up, and that's oftentimes, like I said, like in response to a national disaster or something like that. Then there's this hybrid Status under Title 32 of the United States Code where the president can say, we would like to use your National Guard to perform a federal function. Will you call them up, Governor, under Title 32, Section 502F. And we will pay them because they're going to do a federal function, but they stay under your control. Governors love that when there's a real need, because guess what?
- [36:57]
Chris Hayes
They don't have to pay for it.
- [36:59]
Mary McCord
That's right.
- [36:59]
Chris Hayes
This would be like after natural disasters, for instance. Yes.
- [37:02]
Mary McCord
Like, they'd much rather do that than do state active duty, because then the feds pay for it. And when in Title 32 status, since they still report to the governor and not to the US Military and the president, they are not subject to Posse Comitatus. Okay, so important point. So for Trump, if he wants them to engage in domestic law enforcement, he doesn't want to federalize and use Insurrection Act. One thing to do is to say, hey, will you use Title 32, Section 502 F? And the thing of it is, that is basically a voluntary thing. So in both Portland and in Chicago, really Oregon and Illinois, right before he federalized, he had, you know, a letter sent to the governor saying, department of Homeland Security requires these services. Would you call up your troops under Title 32, Section 502F? And importantly, he said, if you don't do it within 12 hours, we're going to federalize under Title 10 in Chicago. He said, if you don't do it in two hours, we're gonna federalize under Title 10. And then he federalized in other places like Tennessee, the government said, sure, I'll do it. Therefore, using that Title 32 authority, that's the basis for the troops in Memphis. They won't be barred by Posse Comitatus, and the president is paying for them.
- [38:21]
Chris Hayes
So that's important in clarifying. It actually is. It's not quite as performative as I thought it was because it allows the governor to let him do this thing he wants to. And it's no skin off their budget, basically. And it. It creates a legal authority for them to do essentially domestic law enforcement using this loophole by sort of voluntarily putting them under Title 32.
- [38:42]
Mary McCord
Yes, but there's a. There's a part, though, that is more sort of, I guess, I don't know, nefarious is probably too strong a word. But because it's voluntary, that doesn't work in the states that oppose, of course, that just don't think they. Right. And so I think originally, before he started doing all this Title 10 stuff, he was talking about states. I'm just gonna say red states send their National Guards into other states, like blue states, to do this crime control. But if it was, and I think he wanted it to be under Title 32. But imagine that if it's under Title 32, that means it's the state. The, the, let's say the red state that is sending. They're still under the control of the governor. If the receiving state is saying, no, I don't want it, then it's one state invading enough. Another state. And that is the place where that kind of authority would be.
- [39:34]
Chris Hayes
Well, that's. Isn't that where we are right now with the Texas National Guard in Illinois?
- [39:39]
Mary McCord
No, because the Texas National Guard has been federalized. So it's not one state invading another state. At least this is the legal argument. Right. Because if it's under title 32, they literally still report to the governor. So it's one governor making a decision and under his own authority. Authority invading another governor's state.
- [39:57]
Chris Hayes
All right, so the Texas Guard is not under that. They've been fully federalized. They're. They're essentially, you know, under the direct control of the Secretary of Defense and the President.
- [40:06]
Mary McCord
That's right. And this is the door opening thing. I think probably people finally did, you know, say to the president, if you try to do it this other way, you're going to be at your very weakest in court because Governor Pritzker is going to be able to say, why.
- [40:20]
Chris Hayes
Is Texas invading Illinois?
- [40:22]
Mary McCord
Exactly. Now, you can still say that about Title 10, but technically it is a now federalized National Guard that is being deployed under this other authority. And then you need to attack that authority legally.
- [40:34]
Chris Hayes
But am I wrong that, like, this is all essentially improvised and created legal rationales that haven't been used before? Like, doesn't. This is all. Feels like incredibly new.
- [40:44]
Mary McCord
Oh, yeah, yeah. I mean, you know, governors will send their troops under Title 32 voluntarily when other governors ask for it. Right. Like when there is a bit like these.
- [40:53]
Chris Hayes
Totally. Yes, we're gonna help you. Yes, exactly. You're our neighbor and you just had a hurricane.
- [40:57]
Mary McCord
Yeah, exactly. Now, the only time that anything like this has been done similarly was in 2020 in D.C. and D.C. is just different. We are not a state. We don't have a governor. We don't. Our National Guard. The D.C. national Guard can't report to a governor, cause there's no governor. So they report directly up through the US Armed Forces, ultimately to the President, through the Secretary of the army to the president. So in 2020, during George Floyd protests, President Trump called forth the D.C. national Guard into the streets and also asked governors from other states to send their National Guards in again under this title 32 section 502F. Blue states said no, red states said yes, they came in. And the reason that wasn't invading, you know, invading another state is DC's just not a state.
- [41:47]
Chris Hayes
So the same reason he was able to deploy military there for this big showy thing he did over the, you know, last month with.
- [41:57]
Mary McCord
And we still have them.
- [41:58]
Chris Hayes
And still have them and with way less legal obstacles than have been faced in, in the other states.
- [42:02]
Mary McCord
Yeah, there are arguments and the, you know, the attorney general in D.C. is making those arguments, but it's, it's very different than in other states. And I think there's also good arguments that 502f other duty just simply can't mean general crime control. The times it's been used in the past are things like airport security after 9, 11 natural disasters we've already talked about and things that Congress has sort of explicitly said okay to and they've never, I mean, crime control is the one thing. Right. That you leave to the states. So I think there's just a plain old statutory interpretation argument. But that also hasn't been tested in court because he kind of abandoned the idea of trying to do, do it, you know, against the will of the receiving state governors.
- [42:45]
Chris Hayes
Is there an argument? This is a little bit of a side point, but I actually, I'd be curious to hear what you think. So at one level I find the fact that the way constitutional practice should work, particularly amongst lawyers, is that lawyers at every level are making judgments about what are legitimate legal arguments and what aren't. And our technical telling their bosses or their client, you know, the President, United States, like, no, that's not legal. We can't do that. Right. And you know, lawyers have this reputation, they say no a lot. Yeah, can we do this? No, we can't do it. And this is true. And it's true in companies, it's true in non profits, it's true universities, true in the government. And that's an important, that's important. And I think one of the things that we're seeing is what happens when you don't have lawyers who ever say no. They just, they'll go in and do anything. But I sometimes wonder if, like, the next Democratic administration should take a page out of the book here a little bit and not be quite so, like, legalistically bound by stuff where it's like, well, we want to do this thing that we said we do on the campaign trail. It's like, oh, I'm sorry, you can't do it. And I mean, this is what lawyers and Democratic administrations do, which are incredibly lawyered up and incredibly thick with lawyers. And it does seem to me that there's something like, I don't know, like, creative about what they're doing. Like, we want to do this thing. Go find legal arguments that are at least plausible, and let's try to do them. And there is part of me that wonders if that spirit should be imbuing, like, center left, progressive Democratic administrations.
- [44:20]
Mary McCord
Yeah, you know, there's been some of that throughout. Not nothing as sort of aggressive as what we're seeing now. But if you think about, like, daca, right. DACA was a. Of an executive order, which they said.
- [44:33]
Chris Hayes
Which the president was on record saying was not legal before he signed it.
- [44:38]
Mary McCord
So, you know, and I'm sure the. I was not part of that legal debate at the time and giving the advice to the president. And so. And if I was, I couldn't talk about it. But I'm sure you had a robust discussion there.
- [44:49]
Chris Hayes
Right?
- [44:50]
Mary McCord
So occasionally we have the leaning forward. I think it's particularly dangerous here, though, where we're talking about things like military authorities and public safety. And I don't even know for sure. The lawyers are always being asked right now, like, the process when I was in government, particularly on national security matters, is first of all, Department of Justice lawyers, not in the National Security Division, we'd be working on a legal opinion on that. The lawyers in the Office of Legal Counsel at DOJ would be working on their opinion on that. Lawyers in the White House, National Security Council to the National Security Council, councilor to the National Security Council, they would be working on that. And then there was this thing called the lawyers group. The top lawyers from every National Security Agency. They would meet and work on that. And so talk about lawyering up, right? And sometimes the answer was, you know, this creates XYZ legal problems under both domestic and international law. And now sometimes the speed with which decisions are made, it's hard for me to even imagine that even one set of those lawyers is being asked. We did learn recently that there apparently is an OLC memo about these strikes in the Caribbean Sea. That means they at least ask OLC for something. But based on the way it's been reported, I'm very dubious about the legal reasoning.
- [46:14]
Chris Hayes
Well, let's talk about that because I, I'm glad you brought up that segue because that is, it's all related because this is another place in which they are applying the military to what is fundamentally a law enforcement problem. And it's not happening within the, you know, the United States, within the United States borders. It's happening in international waters. But there have now been four boats, boats that they have fired on and obliterated. I don't think we even know the number of casualties to be honest. I think it's 19 people, but I don't think that's necessarily hard. Confirmed. We have essentially nothing to go on other than their assertion that these were drug runners, which they have now called narco terrorists. There apparently is some internal finding that we're at war with narco terrorists in an armed conflict. We're in an armed conflict with narco terrorists. Ergo, it is lawful under the laws of war to strike these boats. The only reporting I've seen is one sentence in one paragraph of a New York Times piece from Venezuela which was at once very well reported and very strange. And it's framing in which anonymous woman says that her husband was on that boat and was a fisherman and had nothing to do with drugs and now he's dead and she is now a widow. But I haven't seen anything further and, and the government hasn't given us the Venezuelan government, which again is, is, you know, not a particularly trustworthy government. Although I don't think ours is particularly trustworthy at the moment either. So now I, I'm just going to level set here and, and, and put my cars in the table. I think we're committing murder. I don't even think it's that close a call. I think just killing people on boats that are, even if they are smuggling drugs with zero due process under a totally fakacta and obviously invented armed conflict that you just pulled out of thin air is just murder. I agree, but you're a lawyer in this. What do you think?
- [48:21]
Mary McCord
Yeah. So, you know, before we heard about this office, well before the President gave his notice under the War Powers Resolution after one of this latest strike, we were all speculating on what authority he was relying on. And at least the first strike, I think he claimed it was one of the cartels he had designated a foreign terrorist organization. Cuz he designated a whole bunch of drug cartels as foreign Terrorist organizations earlier this year. But even that wouldn't give him authority. The reason that the US government was able to do like drone strikes, lethal strikes on foreign terrorists like ISIS member and Al Qaeda members was because Congress had given the executive the authority under the authorization of the use of military force after 911 to use lethal force against members of those foreign terrorist organizations that were responsible for or. And then this is when it gets controversial.
- [49:16]
Chris Hayes
Associated Forces.
- [49:17]
Mary McCord
Associated Forces. Associated for another 20 years.
- [49:20]
Chris Hayes
Right. Included Associated Forces that did not exist at the time of 911 and came into creation 15 years later.
- [49:26]
Mary McCord
That's right. So exactly. So that's controversial enough, but at least it was a thing to point to.
- [49:32]
Chris Hayes
Right?
- [49:32]
Mary McCord
There is no thing to point to that Congress has authorized striking cartel foreign terrorist organizations even if they've been designated. But now that we've seen the War Powers Resolution notice and heard a little bit about this OLC memo that it was supposed to be based on, we know that's not actually the theory. The theory is that the cartel and this, the reporting of those who've seen the OLC memo is it's not even limited to those designated as foreign terrorist organizations, but that these cartels are in an armed conflict with the United States that makes them in what's called a niac, a non international armed conflict, because it's not an armed conflict with another nation state. It's not like with Venezuela or with Mexico or with Colombia. It's with a group within there. So that's what's called a niac. And the laws of war apply. And I will grant you that cartels are responsible for bringing drugs into this country that ultimately kill, especially with fentanyl, many, many thousands of people. And that is a serious problem. But that does not make it an armed conflict with the United States where we can use the law of war, enter in hostilities and kill people. And Chris, not to be hyperbolic, but if you can do that in the high seas and there is a federalist.
- [50:48]
Chris Hayes
Why can't you do it at home?
- [50:49]
Mary McCord
Exactly. What would stop you from doing it in Boston or Washington D.C. or Chicago or any playoff cells? And if you can, because you said these cartels are terrorists because you decided you were labeling them that narco terrorists, then what about the other terrorists? The people who the President is now calling terrorists? Again, I don't wanna be hyperbolic, but where is the line? Right? Because if it's just, if the President says you're a terrorist and we're in a non international armed conflict with you, and therefore we can Use self defense to. To kill people. It's hard to see where the line is.
- [51:30]
Chris Hayes
We'll be right back after we take this quick break. Hey, what's up, subscribers? Welcome back to the channel. So which variety of Dunkin at home coffee is your fave original blend? French vanilla or hazelnut? Drop a comment.
- [51:50]
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- [51:50]
Chris Hayes
Oh, this is what I do when I'm home alone.
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Drink Dunkin' original blend or pretend you're an influencer?
- [51:56]
Chris Hayes
Eh, both.
- [51:57]
Mary McCord
Want a cup?
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Chris Hayes
Hey, let's do a taste test for the audience. Okay, how's this? The rich, smooth taste of Dunkin' at home is unmatched. Nice.
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Chris Hayes
The home with Dunkin is where you wanna be.
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- [53:15]
Chris Hayes
I mean, we should also say there's sort of. There's two levels here. There's the facts and the law. I mean, I just don't trust the facts. Right. So there's no reason to.
- [53:24]
Mary McCord
We don't know if they work.
- [53:25]
Chris Hayes
Right. So. So, you know, Rand Paul made this point the other day. He's, he's been very outspoken on this that like even the coast guard when it does its interdictions on international waters, again under full authority and they have intelligence and they have intercepts. One out of the four boats they board don't turn out not to have drugs. Yeah, that's a 25% error rate. Okay. And that's with doing it by the book and in the Process legally with people that are trained to try to find drugs. Right. Not a US Military that is now doing this new mission A, B. Everything we know and including reporters and academics in Venezuela who cover trendero agua is like, they are not at all a chief vector for illegal drugs to come into the United States.
- [54:11]
Mary McCord
It is not central to where fentanyl comes from.
- [54:13]
Chris Hayes
It's not where fentanyl comes from at all. Like, it's just like the. Even the basic factual underpinning of this is completely dubious. And then. Then you get to the point of, like, even if you concede, yes, you know, they're running drugs, yes, it was trend. Yes, they were on this boat, yes, they were going to an island where it was going to be sold to the US and you give them. You can see everything through factually, like, there's no legal authority to do this because we are not in an armed conflict with them.
- [54:40]
Mary McCord
That's right. That's right.
- [54:41]
Chris Hayes
And it just seems to me like it's. It. It is one of these places. Kate and I talk about this all the time, you know, all the time where there just is this. There's a presumption of regularity and a presumption of good faith, of the pronouncements of the government that just cannot be extended here. And, you know, you're seeing district court judges, judges give up on this presumption of good faith and presumption regularity. You see it in both their findings and also the tone of their findings. Like the Oregon case, for instance.
- [55:15]
Mary McCord
That's right.
- [55:16]
Chris Hayes
And this really seems like one of those places where it's like, you can't just lie to all of us about all this stuff.
- [55:22]
Mary McCord
And that presumption is even greater when it comes to national security. It's judicial depth deference historically, judicial deference to the executive in matters of national security. And it's kind of ironic. Today I published a piece in the Journal of Law and National Security, like an essay, not a full law review article. I don't do full law review articles. But that says maybe the time for that deference is over. There's a number of reasons for that because. And one of them, honestly is, look at how many intelligence professionals have been fired or had their security clearances stripped. Right. Look at the fact that the National Intelligence Council's assessment about trend Aragua, that was, you know, the question was, are they. Is it an alien enemy, you know, equivalent to a nation state? The assessment was no trend. Aragua is not an arm of the Maduro government. The Venezuelan government. And you know, therefore, I mean, they don't do the therefore. I'm, I'm doing that as the legal conclusion. But if they're not an arm of the government, then they are not a nation state that can be subject, whose people can be subject to the Alien Enemies act and put on planes and flown to El Salvador. So when you see that there are instances where the government is actually not, is doing things inconsistent with the intelligence and then firing intelligence professionals, then all of the reasons to defer, which are the superior access to intelligence, the professionals who've worked 20 and 30 years and have all the expertise, the things that the court doesn't have, those were the reasons to defer.
- [56:56]
Chris Hayes
That's a great point.
- [56:57]
Mary McCord
Those don't really exist anymore. So I don't know who, what intelligence peoples were saying those boats were full of cartel terrorists. I don't know.
- [57:07]
Chris Hayes
I want to ask a final question on this, which is there was a Politico story, I believe, that was about people in the chain of command on these strikes asking for some essentially legal sign off and in some cases I think soliciting letters that said this is a lawful order, essentially. And it made me think about the revenge of The Trump v. U.S. roberts immunity decision and the very infamous or famous seal team 6 hypo which arises in the course of that litigation. And the hypo is, well, could the president plausibly, under his official acts, have Seal Team 6 kill a political opponent? That's the way it's phrased. And John Sauer at the time, who's currently Solicitor General and at that time arguing for Donald Trump kind of equivocates, seems to kind of say, yeah, under our theory he could and he couldn't face criminal sanction. This gets carried forward. It ends up also occurring in the Supreme Court arguments. Justice Alito very kind of huffily is like, I think this is defaming the good people of Seal Team 6 or honorable and sort of like, this is a ridiculous hypo.
- [58:19]
Mary McCord
Yeah, it's too ridiculous. We don't even have to deal with that hypo.
- [58:22]
Chris Hayes
Ridiculous. And one of the things that comes up in the course of the, both the briefs and the oral arguments in that litigation, including an amicus brief signed by many high ranking retired military officers, is you're going to create a pretty weird legal situation if the Commander in Chief is not subject to criminal sanction for official acts, but everyone in the chain of command is. And so if the commander in chief says go do this illegal thing that could result in, say, a homicide prosecution.
- [58:49]
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- [58:50]
Chris Hayes
And, and he's not. And on the flip side of that, in fact, if I'm not mistaken, I think one of the arguments Sauer et al were making is like, don't worry about it, you can't get the President, but everyone else is subject to normal. You know, no one else has this immunity and everyone else is sort of normal, you know, legal prosecution. And all of this was this kind of like far fetched hypothetical legal argumentation. And now we have the decision. And I gotta say, like, I don't think we're that far from the hypo in the case of these boats. I think there is a plausible clink, clink claim that homicide was committed against the individuals on those boats, that the people that carried it out are legally liable for a criminal act of murder. And that now we've got a situation in which the President cannot be prosecuted for that, but presumably everyone in the chain of command is legally exposed. And that's a hell of a thing to be confronting right now. That seemed like some crazy hypo a year ago.
- [59:42]
Mary McCord
It absolutely is. You know, I testified last September about the impact of that decision and I went through a, a very, a series of hypotheticals. And I remember thinking again, people are gonna think I'm being hyperbolic. And I reread that testimony recently. I'm like, oh, check. That happened, check. Oh, we've now indicted a political enemy where career prosecutors said there's insufficient evidence. Box checked. Right. So I do think we're in a very dangerous territory there. You know, I will say there certainly are people who are making arguments in other contexts, not this one, that if the President's immune and somebody is doing something, they're directed to do that, that immunity should extend to them. I mean, that needs to still be resolved in courts if we get to the point where those issues.
- [60:26]
Chris Hayes
I think Trevor has an argument, right, doesn't he? Yeah, I think.
- [60:29]
Mary McCord
And so when it comes to the military, we also have the obligation of the officers, right, not to follow illegal orders. And I think one of the real things for our military brass to be thinking about right now is where can they get good legal advice since the jags have been fired, for example, like where can they go to experts, military experts, who can tell them whether orders are legal or illegal. And you know, they do so certainly at their peril in terms of their own careers. But you know, I still have some faith in our military leaders that there will be some lines that are too far. But even what we're seeing in the Caribbean. I mean, like you, that's a line too far from me. I haven't seen the intel, I haven't seen the legal analysis, but I right now don't see that that's a legal strike.
- [61:20]
Chris Hayes
Mary McCord is executive director of the Institute for Constitutional Advocacy and Protection and Visiting professor law, Georgetown University Law Center. She's a former federal Prosecutor. For nearly 20 years she was acting Assistant Attorney General for National Security, and she is, of course, co host of the MSMDC podcast Main Justice. That was so great, Mary. I learned so much. Thank you for clarifying a lot in a very short period of time.
- [61:40]
Mary McCord
Thank you for having me.
- [61:47]
Chris Hayes
You can always email us withpod gmail.com you can get in touch with us using the hashtag withpod. You can follow me on threads, Blue sky, and what used to be called Twitter with the handle Chris L. Hayes. Be sure to hear new episodes every Tuesday. Why Is this Happening? Is presented by MSNBC and NBC News, produced by Donnie Holloway and Brendan o', Malia, engineered by Bob Mallory and featuring music by Eddie Cooper. Our associate producer for Video audio is Joanne Kong. Aisha Turner is Executive Producer of MSNBC Audio. You can see more of our work, including links to things we mention here, by going to nbcnews.com whyisishappening.
- [62:30]
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