Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Barbara McQuade: Thanks for having me, Greg.
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.
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.
Reporter (audio voiceover): Are you going to deploy Marines in California?
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?
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.
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.
Reporter (audio voiceover): Gavin Newsom is ... he’s daring Tom Homan to come and arrest him. Should he do it?
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?
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?
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?
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.
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.
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?
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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