A high-stakes trial is underway in California over whether President Donald Trump’s deployment of the state’s National Guard to back up federal immigration officers broke the law.
California’s state government is trying to prove that the Trump administration, in activating troops and placing them alongside law enforcement, violated the Posse Comitatus Act of 1878, which allows the military to put down an armed rebellion but otherwise narrowly restricts using American soldiers for affairs at home. It’s a continuation of age-old English tradition that prevents military use in domestic affairs.
The timing of Monday’s opening remarks is also notable: The high-profile case arrived in court on the same day Trump tried to pull a similar maneuver in the District of Columbia, deploying the National Guard and taking control of the city’s police department due to a “crime emergency” that he declared Monday morning.
The California trial is already making revelations about how closely federal agents and soldiers operated in Los Angeles and drawing pointed inquiries from a federal judge.
On Monday, lawyers for the state of California defending the state’s right to control its own National Guard troops questioned military brass and an Immigration and Customs Enforcement supervisor about how exactly soldiers and Marines were deployed.
Courtroom testimony revealed that an Army platoon attended an “FBI briefing” on June 13 related to a manhunt for the man in a motorcycle helmet who threw rocks at passing federal vehicles. (The man drew the ire of the FBI’s deputy director, Dan Bongino, three days earlier.) Soldiers with 3rd Platoon Bravo Company 1st Battalion within the 160th Infantry were apparently assigned to block roads so that a Drug Enforcement Administration SWAT team and the FBI could raid the man’s home in Carson, just west of Los Angeles. Elpidio Reyna was arrested in July and indicted last week for assaulting law enforcement.
The FBI’s LA field office did not respond to questions about why it roped in National Guard troops for the task.
“Task Force 51,” run under the direction of U.S. Northern Command, or NORTHCOM, had operational control of all 4,000 state National Guard soldiers and 700 Marines, high-ranking military officials testified. The short-lived marriage of military and federal law enforcement lasted only from early June until recently, but it sparked a lawsuit from Gov. Gavin Newsom that led to this trial — and began a national conversation about the dangers of federal overreach.
The three-day trial could prove decisive at a sensitive time, given that Trump is ordering large numbers of American troops onto District of Columbia streets for the first time since he inspired his followers to attack the Capitol.
Inside a federal courtroom in San Francisco, Senior District Judge Charles R. Breyer heard from three witnesses who all insisted that state troops Trump had federalized — against the governor’s wishes — did not actually take part in law enforcement operations.
Ernesto Santacruz Jr., who has overseen ICE enforcement and removal operations in LA since April, stressed that troops remained on the sidelines while his agents arrested migrants he labeled “criminals.” But he acknowledged that the camouflage-wearing and rifle-toting soldiers were essentially an intimidating show of force. The ICE official agreed with California deputy attorney general Lorraine Lopez’s description that they were a “safety blanket” that served as a “huge deterrent” to public meddling in deportation operations.
Major General Scott Sherman, Task Force 51’s commanding officer, testified that armed troops kept ammunition “in the magazine but not in the chamber” as they accompanied federal agents on warrant operations and ICE agents on arrests. But he too insisted that soldiers and Marines were never any kind of domestic police force, which would have violated the 1878 Posse Comitatus Act if conducted without congressional approval.
“Our mission was to protect federal facilities ... and to support federal law enforcement, strictly to protect them to allow them to do their law enforcement job,” the general testified on the witness stand.
But that kind of cognitive dissonance piqued the interest of the judge, who at one point commandeered the interrogation of the witness with questions of his own. Breyer expressed surprise that even if there was a “low” threat assessment, troops were sent out.
“Even if there is no threat, you can send the military out?” he asked.
“Yes, sir, that’s correct. With this mission,” Sherman responded.
But when the judge started to get the sense that the military, under the president’s authority, was given carte blanche to deploy on American streets alongside federal agents, he probed further with a hypothetical: What if the nation faced low compliance with tax laws and federal agents sought out a particular tax protester with zero evidence there would be a dangerous or escalatory situation? Could soldiers go out then?
“Do you draw any distinction between enforcing federal law and protecting federal property?” Breyer pressed on, later repeating his concerns that uniformed soldiers could be used to enforce unpopular laws — even if there’s no threat at all to the nation’s military.
“Yes, your Honor, we could,” the general said.
The court also heard from William Harrington, a civilian who serves as deputy chief of staff of Task Force 51 and oversaw its operations. He testified that soldiers are “still supporting requests for assistance” from federal law enforcement to this day, making clear that the auxiliary military force remains. And in a previous deposition read in court, Harrington testified that he could not conceive of “any scenario” where a soldier could detain a civilian who wasn’t committing a crime without violating the Posse Comitatus Act — a notable point, given that Marines briefly detained a veteran who was attempting to enter a federal building without stopping to identify himself. Harrington’s assessment of the law seemed to carry weight, given that he has taught a course at NORTHCOM on “defense support to civil authorities” that touched on the legal limits of military use on U.S. soil.
But that testimony put the Department of Justice in the awkward position of attempting to essentially discredit a federal employee who, until recently, the government itself considered best positioned to opine on the subject to soldiers.
“Are you a lawyer? Do you have a law degree? Your understanding of the Posse Comitatus Act is not informed by any specialized legal training, is that right?” Jody D. Lowenstein, a career trial attorney at the DOJ’s civil division, asked.
Later in the day, Breyer appeared to hint at the militarization of law enforcement and consolidation of security forces in these joint operations, stopping for a moment to take a closer look at photographs of heavily armed and uniformed individuals who, at times, seemed indistinguishable save for a few differences. For example, ICE agents would wear masks to hide their identity.
“The military people, the people in camouflage, they’re in Task Force 51, correct?” Breyer asked.
“Correct, your Honor,” Sherman replied.
And the judge seemed to have little patience for semantics, jumping in when the ICE supervisor maintained that his agents don’t conduct “raids,” preferring to refer to them in technical jargon as “at-large operations” that targeted specific people sought by the agency.
“So, the distinction you make is … what exactly?” Breyer inquired.