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The Posse Comitatus Act reserves the police power to the states, prohibiting the federal government from using the military for domestic law enforcement absent truly compelling circumstances. This principle can be extended to the National Guard when a president federalizes a state’s troops. That’s the very issue that Judge Charles Breyer is considering in Newsom v. Trump this week: whether Trump’s deployment of the National Guard in Los Angeles crossed the line into domestic law enforcement.
But when Donald Trump declared a public safety emergency in Washington, D.C. this morning, taking control of the Metropolitan Police and announcing his intent to bring the National Guard in to help, the rules that apply everywhere else were not in play. The situation in Washington is unique, and it’s important for us to understand what it is and what it isn’t.
It’s deeply concerning that Trump’s predication for seizing control in the District—allegedly out of control crime—are a lie. I shared the statistics with you last night, which show that crime is actually decreasing in the District of Columbia. But because the D.C. Home Rule Act allows the president to take control of the Metropolitan Police Department for 30 days in an emergency, and because the law doesn’t carefully define what qualifies as an emergency, Trump will likely get his 30 days. That conclusion was reinforced during D.C. Mayor Muriel Bowser’s press conference, where she called Trump’s federal takeover of the D.C. police department “unsettling and unprecedented," but did not threaten to sue. City officials have likely looked at the law and concluded Trump has enough room under the vague rule to get away with using false pretenses to take over the police.
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Time and again, Trump shows his willingness to grab and abuse power, and each instance makes the next more likely. But if he wants to seize control of law enforcement in other cities, he will have to use different legal authorities, such as the Insurrection Act, which, so far, has apparently been too politically fraught. Existing rules made it easier for Trump to act in Washington than in other cities, and this playbook cannot be readily duplicated elsewhere. In other words, as bad as this is, there’s a silver lining.
Here’s the legal landscape that permits Trump to control the police and the Guard:
Police: § 1-207.40 of the Code of the District of Columbia allows a president to take control of the Metropolitan Police Force for federal purposes in an emergency. To keep control for more than 48 hours, he must notify the chair and the ranking member of the Committees on the District of Columbia in Congress. Trump has already done this. That means he can hold onto control for 30 days, but no longer, unless Congress authorizes it. If you tuned into Steve Vladeck’s and my Substack Live conversation tonight, you know that we both believe congressional Democrats could filibuster to prevent that from happening.
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So why do it if it’s only for 30 days? Perhaps Trump is indeed looking to push the boundaries of presidential power even further than he has before. Or perhaps he’s hoping 30 days will be enough to distract the public from his Jeffrey Epstein problem. Either way, Attorney General Pam Bondi is running the police for 30 days, and we’ll be watching.
D.C. National Guard: Unlike state national guards, the D.C. Guard falls under the president’s purview, so he has no need to federalize it like he did in California to deploy troops for federal purposes. DOJ has historically taken the position that the D.C. National Guard’s unique status means it is "non-federal," and is not subject to the Posse Comitatus Act, which leaves Trump free to use it for direct law enforcement purposes inside of the city. The Guard in D.C. is relatively small compared to state forces. In California, Trump ultimately federalized about 4,000 troops. In all of D.C., there are fewer than 2500 soldiers and airmen in total.
In my experience, state and local law enforcement officers always appreciate additional federal resources to help them fight crime, although these offers of assistance, in my experience, don’t materialize as federal takeovers. What can Trump accomplish in 30 days with limited forces and leaders unfamiliar with crime prevention—especially when federal law enforcement is being pulled from their usual duties to patrol D.C. streets in broad daylight? Not much.
This unprecedented exercise of federal authority, pushing the limits of presidential power, is a serious issue. It’s more of what we’ve seen from the start: Trump’s effort to aggregate power in his own hands. At the press conference today, Secretary of Defense Hegseth said, at Trump's direction, that there were "other National Guard units, other specialized units" that the Department of Defense is prepared to bring into the nation’s capital. The question is, as always, how far Trump is willing to go here.
Former Under Secretary of State for Public Diplomacy and Public Affairs Rick Stengel saw a dark motivation behind Trump’s actions when he tweeted, “Crime in DC is at a 30-year low. It's not even in top 10 dangerous cities in US. Throughout history, autocrats use a false pretext to impose government control over local law enforcement as a prelude to a more national takeover. That's far more dangerous than the situation he says he is fixing.” It’s hard to miss the comparison to other leaders who came to power through an election and then took total control. Adolph Hitler was appointed Chancellor following victories by his Nazi Party. After that, he used the Reichstag fire to claim communists were planning a violent uprising as a pretext for seizing power. Ignoring history and its lessons about the potential for dictators to emerge would be unwise.
Because they are not true, Trump’s complaints about crime in D.C. as the trigger for all of this have a surreal, Alice in Wonderland quality to them. Nothing makes sense. And it’s more than just the lie about crime: Trump declined to deploy the Guard on January 6—when doing so would have been entirely appropriate, claiming he lacked the power to do so. Yet now, he has suddenly, and without a valid reason, ordered the troops to mobilize.
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Maybe Trump really is concerned about crime in Washington, D.C. But if that was the case, you’d expect to see him offering services for homeless people, especially veterans, instead of calling for them to be locked up. There would be community policing by trained professionals, not dropped in National Guard troops who are schooled in crowd control and riot dispersal, not crime prevention. The irony, when Trump complained during the press conference Monday that the people in D.C. who were committing crimes weren’t good people who could be reformed—that they were murderers, not school teachers—was hard to miss in light of the white teacher who murdered a husband and wife who were out hiking with their children in Arkansas in late July. Why not fight crime there?
This is one of those moments where we must watch what they do. Trump is setting the stage, but the play he intends to put on isn’t clear yet.
We’re in this together,
Joyce