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Trump floats invoking 1807 Insurrection Act to ‘dominate’ protests

President can bring active-duty military personnel into the district without using the Insurrection Act

A demonstrator walks by graffiti in Lafayette Park on H St. NW, on Monday, June 1, 2020, after weekend protests sparked by the death of George Floyd occurred near the White House. (Tom Williams/CQ Roll Call)
A demonstrator walks by graffiti in Lafayette Park on H St. NW, on Monday, June 1, 2020, after weekend protests sparked by the death of George Floyd occurred near the White House. (Tom Williams/CQ Roll Call) (CQ Roll Call)

President Donald Trump on Monday night threatened to use the full power of the federal government, including the military through the use of the more than 200-year-old Insurrection Act, to quell protests that have erupted in dozens of cities across the country in the last week.

Trump’s comments from the Rose Garden, his first addressing the nation on the escalating racial unrest in the wake of the May 25 death of George Floyd at the hand of a Minneapolis police officer, came as a battalion of active duty troops were reportedly en route to Washington from North Carolina to provide support to local law enforcement.

Trump did not address the reports of deploying Army soldiers from Fort Bragg within the District of Columbia but said he believed governors and mayors were not responding aggressively enough to the protests.

“These are not acts of peaceful protest. These are acts of domestic terror,” the president said.

“We are putting everybody on warning, our 7 o’clock curfew will be strictly enforced,” Trump said, as federal law enforcement officials were deployed across Washington to assist in enforcing a curfew announced earlier in the day by Mayor Muriel Bowser. More than 1,000 members of the District of Columbia National Guard have also been deployed within Washington.

The D.C. National Guard is always under the president’s command because there is no governor, which means that Trump does not have to activate any special or unusual authorities to use the units for security or policing in and around the District, Steve Vladeck, a University of Texas law professor, said Monday.

Trump can also bring active duty military personnel into the District without using the Insurrection Act if they provide security but do not perform law enforcement duties such as the arrest and detention of protesters, Vladeck said. This is unusual but not unheard of, he added.

If Trump wants the active duty military personnel to perform civilian law enforcement duties, then he would have to invoke the Insurrection Act, Vladeck said. A president can do that without the request of the D.C. mayor because the District is not a state, he said.

The Insurrection Act, an 1807 law that governs the use of military troops within the United States to quell violence or rebellion, is open-ended and gives the president the power to decide if circumstances warrant the use of federal troops, Vladeck said.

“Historically, the real checks on abuse of these authorities have been political,” Vladeck tweeted. “The Insurrection Act hasn’t been invoked since 1992 — largely because domestic use of the military is generally unpopular.”

President George H.W. Bush invoked the Insurrection Act then in response to the Rodney King riots in Los Angeles and surrounding areas.

Vladeck said it’s “hard to imagine” that courts would second-guess factual determinations by the president that circumstances warrant use of the military to restore order.

“Instead, the real constraint today might be responsibility; if Trump invokes these statutes, he’d own all that follows,” Vladeck said.

House Armed Services Chairman Adam Smith denounced Trump’s address as “inflammatory rhetoric.”

“The domestic deployment of our armed services is an incredibly serious undertaking that should not be taken lightly,” the Washington Democrat said in a statement. “It is un-American to use our service members to ‘dominate’ civilians, as both the President and Secretary of Defense have suggested. We live in a democracy, not a dictatorship.”

Trump’s comments came as at least one of his biggest boosters on Capitol Hill floated the idea of activating troops to respond to the protests, which have erupted across the country for the last week.

“If local law enforcement is overwhelmed, if local politicians will not do their most basic job to protect our citizens, let’s see how these anarchists respond when the 101st Airborne is on the other side of the street,” Arkansas Republican Sen. Tom Cotton said Monday on “Fox & Friends.”

Kelsey Cooper, a Kentucky-based spokeswoman for Republican Sen. Rand Paul, offered an outright rejection of deploying the “Screaming Eagles.”

“As Senator Cotton should know, Posse Comitatus prohibits domestic use of our military forces. Furthermore, the 101st, which is the U.S. Army’s sole air assault division, isn’t trained to control U.S. citizens,” Cooper said. “Senator Cotton, an Army officer, should know that and never, ever recommend that.”

“We have National Guard forces for these specific instances and under rare and dire circumstances,” Cooper added.

A senior Defense Department official said Monday evening that the president had not invoked the Insurrection Act yet, and the lead agency was the Justice Department, although Pentagon officials and the D.C. National Guard were all involved in planning.

In addition, this official said, the active duty units being deployed were composed of military police and engineering units but they had not been specifically identified.

Law and order

On Monday, Trump declared, “I am your president of law and order,” as federal law enforcement used tear gas and U.S. Park Police officers on horseback to clear the path from Lafayette Park, across H Street Northwest, to the front of St. John’s Church.

The law enforcement officials attacked peaceful demonstrators to allow space for the president to be photographed outside the historic church, the site of a fire during Sunday night’s protests, as the curfew began in the nation’s capital. The president said during his Rose Garden remarks that law enforcement would “dominate the streets” to stamp out protests.

Outside the church, Trump held up a Bible and he called America the “greatest country in the world.”

“And we’re going to keep it safe,” the president said. He did not answer shouted questions from reporters on the return to the White House grounds.

Andrew Clevenger contributed to this report.

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