A recently published Washington Post investigative report details how the Trump administration assembled a force of National Guard troops from various states in Washington, DC last June in de facto contravention of the 1878 Posse Comitatus Act to suppress anti-police violence protests.
The Post report, titled “How Trump amassed a red-state army in the nation’s capital—and could do so again,” is a confirmation of the analysis made by the World Socialist Web Site, which reported a day after the event that the Republican president was seeking to carry out a coup d’état. Trump planned to invoke the 1807 Insurrection Act and deploy active-duty troops to suppress the nationwide protests that erupted following the police murder of George Floyd in Minneapolis. This would effectively overthrow the US Constitution and establish a presidential dictatorship based on sections of the military, the police and far-right militia forces.
The WSWS warned that although Trump was forced to pull back on June 1 due to resistance from the military brass, which considered such a move reckless, premature and unprepared, the coup conspiracy would continue. This has been confirmed by Trump’s refusal to accept an election defeat and his open plans to steal the presidential election by bringing a far-right justice onto the Supreme Court and mobilizing fascist supporters to attack popular opposition to such a move.
On June 1, federal agents armed with gas grenades, flash bang devices and other weapons attacked and detained hundreds of peaceful protesters on the streets surrounding the White House. In the days prior, Trump declared that his intent was to establish “total domination” of Washington, where the federal government maintains control of the District’s National Guard.
The Post investigation demonstrates that in lieu of invoking the Insurrection Act, the administration circumvented federal laws banning the use of the military for domestic policing, utilizing an obscure clause in the 2007 National Defense Authorization Act.
According to the Post account, Trump, “worrying that the images [of mass protests] showed the country as out of control,” sought to augment Washington D.C.’s relatively small number of National Guard troops. The president put out a call to “commanding officers of all 50 states” to send reinforcements. The states responding affirmatively to the call were overwhelmingly controlled by Republicans. “Over 98 percent of the 3,800 troops that arrived in the District came from states with Republican governors,” the newspaper notes.
On June 1, Secretary of Defense Mark Esper “requested that governors provide 3,800 guardsmen toward that effort, pursuant to 32 USC 502(f).” This law, 32 United States Code §502, pertains to National Guard training and exercises. It determines that “a member of the National Guard” may “support … operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.”
The invocation of 32 USC 502(f) means that cooperating state National Guards are not bound by the Posse Comitatus Act, as they remain under their state’s jurisdiction and are not officially “federalized” under the command of the US president. Only under the Insurrection Act can National Guard units be formally placed under the command of the president for the purpose of policing the population.
At the time, the Washington D.C. National Guard posted on social media, “We are serving as much meals or more as we would be in a forward location in Afghanistan or Iraq.” It referred to “more than 5,200 guardsmen … activated in support of a civil unrest mission.”
Writing in June of Trump’s invocation of this legal loophole for calling out troops, Steve Vladeck of the Lawfare blog called it “a stunningly broad authorization for the president to use the military at any time and for any reason, including as a backdoor around the Posse Comitatus Act.”
Vladeck further explained that options did exist allowing Washington D.C.’s Democratic mayor, Muriel Bowser, to bring in law enforcement from other states. But for transparently political reasons, Trump circumvented local Democratic Party officials and used the 32 USC 502(f) loop hole to appeal directly to sympathetic state governors for troops.
Further blurring the lines as to which government—state or federal—had jurisdiction over the various National Guard units was Secretary of Defense Esper’s June 5 order for them to begin disarming and leaving the city.
The clause used to circumvent Posse Comitatus was inserted into the National Defense Authorization Act of 2007, during the George W. Bush administration. “Nobody writing this new provision likely viewed it as ever becoming some sort of work around for the Insurrection Act,” stated former US Air Force Command attorney John Dehn, who explained that the clause’s initial intention was to “deal with terrorism.”
While the Post report states that Democratic Party-led state governments were “incredulous” at Trump’s demands, with only the Democratic governor of New Jersey complying with the call, this is largely due to these states seeking to maintain forces for deployment within their own jurisdictions.
The Post quotes Maj. General David Baldwin of the California National Guard, who rebuffed Trump’s demands because “I have other things to worry about.” Baldwin headed up the force “under multiple Democratic governors,” and claimed “his troops were already stretched thin by dozens of planned protests.”
And while most Democratic Party-led state governments refused to cooperate directly with Trump, they did not make any effort to defend the Constitution. The Post quotes Clark Mercer, chief of staff for Democratic Virginia Governor Ralph Northam, who refused to send troops to the capital, explaining, “What if you send them and something happens, and they’re not even wanted. That’s a potentially very bad situation.”
As of yet, no other major media outlet has commented on the Post report or denounced the Trump administration’s effort to subvert the Constitution.