On Thursday afternoon, day four of President Donald Trump’s activation of the National Guard and federalization of the Washington, D.C., police force, multiple units of the National Guard were coordinating shifts around the Washington Monument and the Martin Luther King Jr. Memorial.
“You think I want to be doing this shit, huh?” a guard soldier, who wore a first sergeant’s rank on his uniform, said to his soldiers.
“Then join the Reserve,” a cyclist shouted as he passed by, overhearing the guard. “You don’t have to do this in the Reserve.”
Another passerby raised his hands. “Don’t shoot, hands up,” the man said to the guard members.
Amid scenes of federal law enforcement conducting D.C. police work and heightened immigration enforcement, the role of the National Guard has been more muddled.
Attempts from the White House and Trump’s Cabinet to clarify the roles of the National Guard have only added fuel to concerns that Trump is violating the Posse Comitatus Act, which restricts the use of military force for domestic law enforcement — an accusation the administration also fought against in court in California.
Soldiers, wearing full body armour with plates and chest rigs meant to carry war-fighting equipment, but no helmets, walked the pedestrian paths around D.C.’s most iconic sights Thursday — an area already heavily policed but with little violent crime. They took pictures with tourists, but wouldn’t answer NOTUS’ questions about the directives they’ve been given.
The first sergeant told NOTUS to talk to the public affairs office of the D.C. National Guard.
“Guard members seen on the National Mall were conducting a presence patrol,” the D.C. National Guard said in a statement, listing security, administrative assistance and logistical support for D.C.’s police and federal law enforcement among their duties. “We are committed to providing whatever support is needed to ensure the safety and security of the District, while allowing law enforcement to focus on their primary missions.”
“Guard members, of course, have their own personally held opinions, but they are professionals and take pride in conducting all assigned missions,” the statement said.
The guard members were activated under Title 32 of the U.S. Code, which usually keeps troops under state leadership and allows them to perform law enforcement functions, exempting them from the Posse Comitatus Act. In D.C.’s case, the National Guard is reporting directly to the president under Title 32.
The guard members have also been deputized by the U.S. Marshals Service as federal law enforcement.
Defense Secretary Pete Hegseth told Fox News Monday that guard soldiers were “not going to be involved in law enforcement functions,” stressing that troops will instead “work right alongside our law enforcement partners as force multipliers.”
But on Tuesday, White House press secretary Karoline Leavitt told reporters three times during a press briefing that the D.C. National Guard had been “federalized” — language that could complicate the legal picture for the White House, and run up against the arguments the administration made in court in California.
“That’s odd, because the president doesn’t need to federalize the D.C. guard,” Joseph Nunn, a lawyer at the Brennan Center for Justice, said of Leavitt’s comments. “If they maintain that, then that becomes, potentially, part of a legal argument that the guard has actually been activated in Title 10 status, rather than Title 32 status, or that it is not operating at its militia status.”
A small section of Title 32 allows for National Guard troops to be used for “other duty.” The open-ended nature of that phrase is one that’s been contested by legal scholars. Title 10, which the administration invoked to send the guards to Los Angeles, is clearer: It is federal service and subject to Posse Comitatus restrictions.
“If the White House is saying, ‘We federalize the D.C. National Guard,’ and if the purpose for which they’ve been deployed is a sort of federally directed, kind of crime prevention campaign in D.C., well, that doesn’t look like it’s been activated in its militia status,” Nunn said. “That starts to look like a federal military deployment.”
Leavitt herself drew the connection between the activation in D.C. and the one for California.
“This administration wants to ensure that all school children across the country in every city from Los Angeles to D.C. can go to school safely,” Leavitt said. “That’s part of this administration’s effort to federalize the National Guard in Washington.”
This special designation as “deputies” comes after a Justice Department inspector general report last year warned about the dangers of “special deputization,” which it said “elevates the potential for abuse of federal law enforcement authority.”
The U.S. Marshals have routinely deputized National Guard members for major national security events, like presidential inaugurations, which are openly and legally acknowledged as federal, not local, in nature — and are standalone occurrences with firm endings.
The U.S. Marshals referred NOTUS to the White House after a request for a copy of the National Guard’s deputation orders. Those orders would require an end date for their “special deputization,” something that the White House memorandum lacks.
The Department of Justice is actively defending the Trump administration’s deployment of National Guard soldiers and Marines in Los Angeles by stressing that troops were never acting as cops but merely formed an intimidating presence as ICE agents rounded up migrants. At a three-day trial that ended Wednesday in San Francisco federal court, high-ranking DOJ lawyers maintained that the White House strayed far from violating the Posse Comitatus Act because orders from the president and Hegseth only authorized the military to act in a “purely protective function.”
Eric Hamilton, a deputy assistant attorney general, insisted that “providing backup security is distinct from a law enforcement purpose” and told the judge that “the record doesn’t come close to showing a direct and active use of military service members for law enforcement.”
“Service members never went out in the field alone. They were always co-located with federal law enforcement officers who were … performing law enforcement functions,” he said in court.
Hegseth continues to maintain that the D.C. National Guard won’t be conducting law enforcement actions just yet.
“Just like we did in Los Angeles,” Hegseth said on Fox. “We’re gonna help get D.C. under control by working with local officials, who have been federalized, with federal officials who are coming in. The D.C. Guard is proud to be a part of it, other states will contribute, this week going into the weeks to come.”
According to the Pentagon, 200 soldiers from the guard were on duty Thursday, out of the 800 that were activated.
“Hey, try to stay in the shade,” the first sergeant told his small patrol before sending them out for another loop. There was a cooler with ice in the back of their van.
As they walked along the sidewalk by the Washington Monument, a group visiting the monuments stopped and asked for pictures with soldiers. They obliged.
“We’re from here,” the first sergeant told NOTUS, before directing all questions to the D.C. National Guard headquarters office.