- Legal Eagle is coming in loud and clear thanks to Ting Mobile. Before President Trump's
photo op at St. John's Church in front of Lafayette Square, which resulted in peaceful protestors being gassed with chemicals and shot with rubber bullets, he appeared in the Rose
Garden behind the White House to outline his response to the protests that have roiled this nation. President Trump threatened
to take dramatic action to quell the protests, including invoking the
Insurrection Act of 1807, which allegedly would allow
him to deploy the military to crack down on protesters and rioters. President Trump did not officially invoke the Insurrection Act, but he did use his unique
authority within the district to make a serious show of force. In recent days, for reasons that should
be relatively obvious, people have debated how much authority the president has to use the military for civilian law enforcement purposes. And in addition to the Insurrection Act, you probably heard people
mention the Posse Comitatus Act and claim that the president actually doesn't have authority to
invoke the Armed Forces in riots and protests. Well, I'm here to
deliver the sobering news the president actually
has a lot of authority to use the military against
the American people. But whether he can do it and whether he should do it are two completely separate issues. (epic music) Hey, Legal Eagles. It's time to think like a lawyer because I can personally
confirm that there are a lot of American troops operating on American soil as we speak. And by the way, I started my research for this video by going to what I think is by far the best resource for
national security law. And that's a blog called Lawfare. It's simply, bar none, the best resource for answers to national security law questions. You can go there at lawfareblog.com, I highly recommend it. So let's start with the
Posse Comitatus Act. Does it stop the president from using the military domestically? Now it's easy to confuse
the Insurrection Act of 1807 with the Posse Comitatus Act. In fact, you'll often see people say that the PCA actually bars the president from using the military
in domestic matters. And there's some truth to it, but it's largely false. Section 1385 of Title 18
of the US Code states, "Whoever, except in cases "and under circumstances
expressly authorized "by the Constitution or Act of Congress, "willfully uses any part of
the Army or the Air Force "as a posse comitatus or
otherwise to execute the laws "shall be fined under this title "or imprisoned not more
than two years, or both." Now a big part of a
lawyer's job is analyzing the text of laws and judicial opinions. And you'll notice that this
language provides a bar unless there is a specific act of Congress or something in the
Constitution that allows it. This is one of those situations where the exception predominates the rule. And generally, the Posse Comitatus Act prevents the military from participating in traditional law enforcement activities. However, Congress has enacted many, many exceptions to the PCA to allow the military to assist civilian law enforcement agencies
in enforcing the laws. For example, the Department of Defense can provide some support
to law enforcement agencies battling drug crimes and organzine crime. The military may also defend
their own bases and property. It's one of those instances where the exceptions tend to swallow the rule. It's kinda like the rule against hearsay. Sure, there's a general rule against hearsay being admissible in court. But, frankly, there are so
many different exceptions that it's actually the rarity where you can't get the hearsay admitted into court as evidence. But the biggest exception to the PCA is the Insurrection Act itself, so let's talk about that. The Insurrection Act of 1807 actually refers to five
pieces of legislation that are found in 10 USC,
Sections 251 through 255. The law sets forth several scenarios that a president may use to justify deploying the
military domestically. Now, before the president can invoke the Insurrection Act, he quote, "Must first issue a proclamation "ordering the insurgents to
disperse within a limited time." If the situation does not resolve itself, the the president may
issue an executive order to send in troops. How, it's important to note
that the Insurrection Act actually dates back to a time when municipal Police Departments didn't really exist in this country. And so, it made sense
that there would be times when the federal government would need to send military personnel to help out with state or local issues. Now, given that in the modern era, ever state and every municipality
has a Police Department, one might question the utility of having the Insurrection Act
remaining on the books. Now, the oldest section of
this law is Section 254, which was enacted in 1792 to give George Washington authority to call forth the militia to repel invasions, suppress insurrections, or enforce the laws. Congress was initially reluctant to grant even Washington this authority, so they required that he would first need to give insurgents a warning to disperse. And although President Trump
has explicit threatened to invoke the Insurrection Act. - If a city or state
refuses to take the actions that are necessary to
defend the life and property of their residents, then I will deploy the
United States military and quickly solve the problem for them. - To date, it's not clear
that his speech qualifies as a proclamation required under this act. Section 251 of the Insurrection Act deals with federal aid
for state governments. It combines two laws from the
earliest days of the Republic. One was a law used to suppress the Whiskey Rebellion of 1794. This was an uprising of
farmers and distillers who protested a federal whiskey tax. After years of protesters
tarring and feathering tax collectors and destroying property, President Washington was given authority to call forth the militia
upon the request of a governor or state legislature. The second part of this
law was enacted in 1807 at the request of President Jefferson, and allows the president
to call up a standing army as well as the militia. Which brings us to Section 252, which regards to the use
of militia and Armed Forces to enforce federal authority. Section 252 was enacted in 1861 at the request of President Lincoln, to increase presidential authority to use the militia and regular army to suppress insurrections
and enforce the laws. This law was the legal basis
for waging the Civil War. And the law allows the president to use federal troops
on his own initiative and act on his own judgment without having to wait for
the request of a governor. And, in fact, you're seeing
a lot of governors on TV recently stating that they are not going to request federal
troops or federal aid under the Insurrection Act. The thing is, for most
of the Insurrection Act, it doesn't require gubernatorial approval. That brings us to Section 253, Interference with State and Federal Law. In 1869, Congress added section 253 at the request of President Grant to empower him to use federal troops to suppress the Ku Klux
Klan during Reconstruction. Section 253 states, quote, "The president, by using the
militia or the Armed Forces, "or both, or by any other means, "shall take such measures
as he considers necessary "to suppress in a State any insurrection, "domestic violence, unlawful
combination or conspiracy, "if it, one, so hinders the execution "of the laws of that State "and of the United
States within the State, "that any part or class of
its people is deprived of "a right, privilege, immunity, "or protection named in the Constitution, "and secured by law, "and the constituted
authorities of that State "are unable, fail or refuse to protect "that right, privilege or immunity, "or to give that protection; "or, two, opposes or
obstructs the execution "of the laws of the United States, "or impedes the course of
justice under those laws." And you can tell by the plain
text of this language that that is incredibly broad authority. And that in a situation where
you have peaceful protesters, and rioting and looting going on at the exact same time, that it's not surprising
that someone might use the unlawful activity as a pretext to curtail the lawful activity as well. Now, originally there were
two fairly large limits on the use of military personnel by invoking the Insurrection
Act by the president. The first was that the
president had to get approval from a federal judge. The second was that the Insurrection Act could be used until Congress
came back into session, and then had to approve
the use of the military. Now, those two restrictions
on the Insurrection Act sunsetted out and no
longer are part of the act. And no longer act as a check against the use of military personnel under the Insurrection Act. So when has the Insurrection Act exception been used to Posse Comitatus? Now, although the Insurrection Act has not been used frequently, presidents have invoked
it to enforce the law, especially when racial
equality is at stake. In 1957, President Eisenhower called on the US Army's 101st Airborne Division to safely escort nine black students into Little Rock Central High School after the Arkansas governor, Orval Faubus, had called on the Arkansas National Guard to stop the students from
integrating the school. President Kennedy invoked
the act in 1962 and 1963 to send federal troops to
Mississippi and Alabama to enforce civil rights laws. In 1967, President Johnson sent the 82nd and 101st Airborne
Divisions to Detroit to quell riots between
police and residents after Martin Luther King
Jr. was assassinated. And in 1992, President H. W. Bush responded to a request from Governor Pete Wilson of California to quell rioting in Los Angeles after the acquittal of
the four LAPD officers who brutally beat Rodney King. - There are 3,000
national guardsmen on duty in the city of Los Angeles. And let me assure you, I will use whatever force is
necessary to restore order. - So in modern times, the presidential use
of the Insurrection Act has generally been used to enforce civil rights, and integration,
and racial equality rather than the opposite. And it's generally been used in ways that most people would
find unobjectionable, at least in this day and age. And sometimes that use
of the Insurrection Act was explicitly against the
wishes of the state governors. For example, Governor Faubus had improperly used the
State National Guard to disregard federal court orders, regarding integration of students. And in that example, he certainly did not want the federal government's assistance. In fact, that ran completely
contrary to what he wanted. Governor Wilson, on the other hand, did ask for help from President Bush. And the other instances also involved quelling of riots that
were explicit responses to racial injustice. And there's probably one
other historical example that is incredibly relevant. And that was the federal
government's response to Hurricane Katrina. When the levees in Louisiana broke, the state and federal
government were slow to respond to the enormous logistical challenges and humanitarian crisis. President Bush considered
invoking the Insurrection Act, but the Department of
Defense was concerned that Americans would be reluctant to see the military in that role. And at the time the military
was fighting two wars, and eventually Congress
amended the Insurrection Act to clarify the circumstances
that would justify the use of Armed Forces. There is now language in the statute that lets the president use the military to restore order and
enforce the federal laws if there is a natural disaster,
epidemic, or terrorist act. Though, ultimately,
the Bush administration decided not to invoke the Insurrection Act in support of humanitarian
efforts regarding Katrina. And it's probably important to talk about the distinction
between norms and laws. The law itself has been pretty
broad for a very long time, but it's revealing that
presidents have been reluctant to invoke the Insurrection Act. That is a presidential
norm, a societal norm, but it is not written into the Act. And you can see how a broadly written law that has been used in some instances where no one would object, and probably other instances that were closer to the margins, can be used for good and ill depending on who is upholding
the norms and who is not. And the Katrina example is important because it reveals two concerns that normally come up
when there's a situation requiring a national response. And that also involves the difference between norms and laws. First, the American people
have traditionally been very wary about military
operating on US soil. This, in turn, has made the military wary of being deployed for civilian matters. And there are very good policy reasons that should probably be pretty obvious as to why you don't want a military doing law enforcement activity and why you want a strong separation between a military that's trained to kill, and a police force that is
trained to serve and protect. And second, the Bush administration
had a significant debate about whether to invoke the act. Members of Congress weighed in
and so did all 50 governors. Under normal administrations, both Democratic and Republican, there's a decision-making process where the president
hears from stakeholders about the pros and cons
of using the military. That doesn't mean the
president lacks the power to use the military or enforce the law. On the contrary, the president
clearly has the discretion to involve the military
in civilian affairs under these different acts, even if the governors don't ask for help. but rather it signals that, at least in modern times, we've had presidents who thought about what the governor's might want; how the people might react; and whether a military response would actually make things worse. And it's hard not to think
about the historical example of Caesar crossing the Rubicon, that sometimes the norms involving
the lack of participation by the military and domestic affairs or at least crossing
the Rubicon into Rome, that that norm exists for
a very, very good reason. And it's also probably worth pointing out that the Posse Comitatus Act, in conjunction with the Insurrection Act, contemplate that the president is going to faithfully execute the laws. And that, on that basis, the president probably
has a lot of discretion to use the military to stop riots in the name of enforcing the laws, because we have a lot of laws out there. And it's hard to not think about this fact without examining the context
of what actually happened when the president mentioned
invoking the Insurrection Act. That while he was giving his
speech in the Rose Garden, that he or Bill Barr gave orders to clear out the protesters
in Lafayette Square so that the president
could get his photo op at Saint John's Church. To clear a path for the
president's impromptu walk, the US Federal Park Police used OC gas, pepper sprays, rubber
bullets, and flashbangs on a crowd of peaceful protesters. All of this happened
before the 7 p.m. curfew. And, of course, the right to protest, to peaceably assemble, is part of the First Amendment. This is part of the freedom of expression that all Americans enjoy. Protests are a way of
life in Washington, DC. Which is to be expected, this is after all the seat of government. But it doesn't mean that
President Trump's actions on Monday were necessarily
illegal in the strictest sense. Over the last several decades, courts have allowed government
to make more restrictions on the time, place,
and manner of protests. As long as those restrictions are what's called content neutral. And you can imagine how some of these laws conflict with individual citizens' right to First Amendment activity, to petition the government, to peaceably assemble and to protest. There are, in fact, many statutes that make it clear that protesters cannot block access to federal buildings, or destroy private property, or stop the president from
going somewhere he wants to go. But you can also imagine
how some of these laws might be used as a pretext to quell First Amendment
expressive activity. And one of the things that made President Trump's actions
so incendiary is that he wasn't on his way to the Capitol to meet with Congress, nor was he doing anything strictly related to the business of being president. Instead, he just had an impromptu photo op that appears to be used for
his reelection campaign, that wasn't planned out, and specifically conflicted
with the protesters who were already there and
were already protesting peaceably using their
First Amendment rights. But that's the difference between norms and things that are written into the law And perhaps we've just been
lucky that, prior to now, we haven't had such a bumbling example of a pretext used to evacuate people exercising their First Amendment rights in front of the White House. And the same goes for the use of troops, and military and federal officers throughout DC and the rest of the country. Even President Nixon never placed soldiers at the foot of the Lincoln Memorial, blocking the American
people from accessing one of its most significant memorials, which we have seen that the
Trump administration has done. And it's been a long time
since all of Lafayette Square and such a significant portion
of downtown Washington, DC has been completely locked
off from protesters, or even tourists. I participated in the
Women's March in 2017. There were tens of thousands, if not hundreds of thousands of people, who were allowed to walk right
in front of the White House. And even that wouldn't be available based on what's going on right now. And, in fact, in a direct
historical parallel, when mass protests erupted after students were killed
by the National Guard at Kent State University, then President Nixon left the White House and met with protesters personally
at the Lincoln Memorial. This surreal event eventually led to Nixon creating a formal study of campus unrest during the Vietnam War. But because of Washington,
DC's unique position as a federal district,
rather than a state, and because of its disenfranchisement, the federal government has authority to use federal troops and
military police officers in the limits of Washington, DC in a way that they actually can't do outside of the district. So if it sounds like President Trump has a lot of power, he does. Presidents, in general,
have a lot of power to use the military for different ends. But as things stand, it's up in the air. It's not clear that the president has actually invoked the Insurrection Act. Secretary of Defense, Mike Esper, has voiced his opinion that the president should not, in fact, invoke the Insurrection Act, and should refrain from
using the US military to conduct law enforcement
and anti-riot actions. - The option to use active duty forces in a law enforcement
role should only be used as a matter of last resort, and only in the most urgent
and dire of situations. We are not in one of those situations now. - So it's not clear how long he's going to be the Secretary of Defense. But you can imagine that
if the Secretary of Defense is urging the president not
to use troops in this context, that it's not surprising that people are going to protest the
use of this kind of force, in addition to protesting
the police brutality that we've seen throughout the country. But, unfortunately, if
you're out there protesting this use of the military
and police brutality, there's a chance that you
might be illegally arrested for your First Amendment activity. And if you are arrested
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really helps out this channel. So, do you agree with my analysis? Do you think that we should amend the Posse Comitatus and
Insurrection Act laws to make it harder to use troops on American soil? Leave your objections in the comments, and check out this playlist with all of my other real law reviews talking about the crazy stuff happening with protests, and COVID-19, and basically all of the news. There's a lot of it. So, click on this playlist
and I will see you in court. Hopefully not literally.
"Perhaps we've just been lucky that prior to now we haven't had such a bumbling example of a pretext used to evacuate people exercising their first amendment rights in front of the White House."
It's ridiculous how backwards the current situation is. It seems like the entire history of forward progress regarding racial integration and the civil rights movement are being reversed.
Sickening.
Well I guess he's never gonna run for a seat in the Supreme Court.
Also, I loved him in Deadpool.