This is Bloomberg Law with June Grassoe from Bloomberg Radio in the Rose Garden. On Monday, President Trump threatened to send military forces into cities and states that failed to quell violence spiraling from protests over the death of George Floyd while in police custody. Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled.
If a city or state refuses to take the actions that are necessary to defend the life and property of their residence, then I will deploy the United States military and quickly solve the problem for them. Trump would likely use the eighteen o seven Insurrection Act, but there would be serious questions about the legality of such an order.
Trump's own Secretary of Defense, Mark Esper, broke with the President on Wednesday and said he opposed sending troops in the option to use active duty forces in a law enforcement role should only be used as a matter last resort, and only in the most urgent and dire of situations. We are not in one of those situations now. I do not support invoking the Insurrection Act. Joining me is Harold Grant, professor at the Chicago Kent College of Law, Can he do that? Can he use the military to
go into states? Yes? And no. I mean from the time of our founding Congress is whether there may be some emergency in which the president would have to deploy federal troops to protect against some kind of insurrection or some kind of violence at the state level. There are a couple of different categories in which Congress has envisioned the President involving the troops in such protection or defense
of the country. The first is when the governor asked for the president's help, and the governors have done that on the number of occasions, most notably recently after the riots after the beatings of Rodney King in Los Angeles, Man govern Wilson then said I need help, and President Bush sent in troops to help calm the streets of Los Angeles after the continued fighting. So that's the most
recent occasion. There been other times in our country as well in that genre when governors themselves have lost control. The second context, which we've also seen is when there's a need to protect federal law that sometimes states will not protect federal law, and so they're the insurrection that
gives the president the ability to send in troops. Most famously was used in our country in Arkansas to enforce the civil rights laws to make sure that desegregation was a reality because the states were refusing to enforce federal law and to allow integration to take place. So those
are the two most common contexts. The third category, and that's the category that President Trump would need to fit this use of troops into, was when there is a sort of a failure of will process and when a state can no longer protect its citizens because there is so much violence going on and the normal administrative machinery
is not available to protected citizens. That's never been used and it's unlikely to be used in this case because states themselves that said there is no failure of the process. There may be a riot, but a riot is not an insurrection. Courts are still open, police stations are still open. And so that would be the category that Trump would have to fit this introduction of federal troops into. And it's unprecedented, but it doesn't seem to fit the exception.
And the way to look at it is is this really an insurrection that the states can no longer function or is this a riot? And if it's a riot, it doesn't seem to fit in within the structure of the statute allowing for the introduction of U. S. Troops. What about the part of that statute that allows military to put down domestic violence? Could this be considered domestic violence?
That's not really in the Insurrection Act itself. With the eighteen or seven statute that President Trump invoked, there is another sort of idea of emergency used. There's an inherent, some kind of inherent authority of the president in an
emergency to protect the country. Right, and this is most famously President Lincoln cited this when he was trying to use the forces of the North to prevent a successful rebellion in the South, and did not wait for any kind of congressional action, but just said, I have to have a reservoir emergency authility to protect the nation. Sure, President Trump can invoke his inherent authility. He didn't so far, but if he does, it just doesn't seem to rise
to that kind of level of a catastrophe. Now most people think, if we have a terrorist attack, the president should invoke emergency powers and not worry about the niceties of making a proclamation under the Insurrection Act or anything
of that sort. But just introduced troops that we need to to protect against terrorists, and some people think he talked about the Antifa as a terrorist group as an alternative way to pay the ground for introduction of U S troops on the theory that we were really facing a terrorist attack by the Antifa as opposed to domestic disturbances.
Explain what Antifa is and what happened recently. So, Antifa is a loosely organ organized UH left wing anarchist group that believes in in violence and destabilizing the status quo UM and the President has declared that that group is a domestic terrorist organization bent on using violence to overthrow the US government UM. And there is not much evidence of the Antifa's involvement in the recent protests around the
country about the George Floyd Floyd killing. I mean, there may be in some elements from Antifa that have mixed in, and not just Antifa, but there are other kinds of agitators who we have and looters as well, who use the means or used the context of a peaceful protest as a means to further their own ends. Will be that the stabilization or booting, But there's no evidence that I've seen so far that the Antifa was behind the peaceful protests, behind the violence any kind of great extent.
But President Trump has labeled them as a terrorist organization, which maybe again one plank down the road of saying that he's introducing troops to protect against this terrorist threat. Now that's not directly again UH provided for in the Insurrection Act, but I think most people would believe that the president has the authority to introduce troops if we are in the case of invasion obviously, or the in
case of an active um UH domestic terrorism challenge. Some legal experts believe that the broad language of the Insurrection Act means that Trump might have a case. Noah Feldman, who's a Bloomberg Opinion columnist Harvard law professor, says that the rioting and looting is obstructing execution of federal law to the extent that local police and the National Guard can successfully stop violence on the streets. So if it comes to that point, does Trump have a better case.
Most of what we've see in the streets there has been a threat to state law issues, to property law, to traffic laws, and and so forth. Transportation, there has not been a direct threat to federal laws. The question is what is the federal interest. Certainly there's a right to protect federal buildings such as the courthouse for a federal bank, but the federal legal interests involved in the
writings so far have been very marginal. So I think it would be a stretch to justify any kind of Trump intervention on the base of the need to protect federal law. The state cops are still their National Guard can be there, and so the machinery justice is still working, and there's very little at stake at risk from a
federal law perspective. New York Attorney General Letitia James tweeted, we will guard the right to peaceful protests and will not hesitate to go to court to protect our constitutional rights during this time and well into the future. But by the time you get into court, isn't it too late? You know, if he decides to send troops in, how long will it take to get a court to rule
on that. This is one of those difficult political constitutional questions that is not meant for speedy resolution in the courts. I mean, the court might try to say that there's an emergency motion and here it can decide within the day, but even within a day, the troops would already be on the ground and the whole sort of reality would
be changed. Now. I do think that there might be litigation after the fact, because if someone was arrested or somebody was in fact um beat up that by a member of the U. S. Army, then they would be able to sue after the fact on the ground that the whole introduction of U. S. Troops was illegal and therefore their arrest or certain seizures should be thrown out. But in terms of immediately trying to get a court order to stop the introduction of U. S. Troops, I
think that's a high hurdle to overcome that. I wouldn't expect a court to be able to effectively stop the introduction of federal troops until for several days afterwards, but which time it might be too late. On the under hand, a few except back and look at it if this is really a political issue. The governors, such as governors of Illinois, New York, and Minnesota, have stood up and
said we don't want any federal troops here. And I think there's leaders in the federal UM military who have also said we don't think we should introduce troops in this way. So already there there is a political movement against the threat by President Trump, and I think that's probably going to be the most important um uh sort of weight against the president as opposed to any potential court challenge. This seems to be a unique situation in
our country. Can you remember another time when there were protests like this across the country? You know, where a president would be even be thinking about military action. Well, most recently they've been situations because of a natural disaster, whether it was in the aftermath of Hurricane Katrina or
Hurricane in the Virgin Islands. Those uh disasters left sort of devastation and in the awaken whether it was wasn't that far from what happened to Puerto Rico just a couple of years ago, And there there has been a need to have have quick action by federal authorities to try to restore order. But we haven't seen it in a kind of political context. And and remember that most almost everybody would agree. I think so far that six percent of all of the protests has been peaceful, they've
been constructive. And so to send the military in because of even what some people might say is a few bad apples or these provocateurs seeming to be an overreach, and there's been no evidence that the states on their
own can't take care of it. Maybe not as efficiently as we've all would like, but it looks like that issues are subsiding, the violence is subsiding, and that the protests that are continuing are again are well within the First Amendment rights and in fact very productive for the country. I also want to talk a little bit about that incident, uh, the clearing of the peaceful protesters from around the White House.
You had General Mark Milly wearing combat fatigues on the streets of the Capitol and military units were used against the protesters. Is that allowed on the streets of our country? So really, the presidents in a better position because it's d C. D C is not a state. D C does have militia, but it's also connected with a more closely controlled to the federal government and to UH the U. S.
National Garden. Because of that, to the U. S. Army as well, So in that sense, the president does have more control to order the military to protect him or people or property in d C than they would in New York, Illinois, Minnesota, or elsewhere. But but the question is why, I mean, why would you have to send those kind of messages to people who are peacefully protesting. Um, what happened in Minnesota, it's sort of defies any kind of imagination. So it's in my mind a wholly excessive
short of force. But again, he there's more legal backing to what he did in DC than there would be in a state. More National Guard troops have been deployed inside the US at this time than at any previous time in our history. The White House has asked some governors to send National Guard troops to d C, and governors in Virginia, New York, Pennsylvania, and Delaware have declined to do so. Who has the power over those troops
is that the governors. That the governors have the power to say no, we're not going to send you any troops. Right the first level, the governors do have the authority to decide how their own National Guards troops should be deployed. But the very name national Guards suggest that people in the National Guard where two had their first loyalty is
to the states. But if the federal government goes to the right procedures to federalize the National Guard, then the fellow federal military would be at the head of the National Guard House. The government has not done this yet. I hope it doesn't. It doesn't see the need to do that. But this again is a unique sort of window into the dual nature and dual loyalties of the national guards in our country. First of a state, whether it's Virginia or Illinois, um, and then of course to
the national government itself. I believe it was President Eisenhower who took over the state's National Guard in nineteen fifty seven from the governor without the governor's consent. Yeah, and President Trump might take that to deep and we think that that's probably within his bigal authority to do so. Um, that does come with more responsibilities and obligations, and he
is not shown willingness to take that step. And I don't think he needs to, And I think I don't think he needs to because, um, he's sitting with the U. S. Army at his back, and if he wants to take a dramatic move, he'll probably do so through the introduction of the armed forces, as he's threatened to do already, as opposed to taking a step of nationalizing the state's national Guards, but who knows. We'll have to stay tuned
to watch unfolding developments. So then, just to clarify, it's a different legal issue his taking over National Guard in a state as opposed to sending the military in. The answer is yes, But the answer is also that I don't know the procedures that have to follow to do that. Are there any procedures he has to follow? He decided to invoke the Insurrection Act, there is one procedure that he must follow, and he must make a proclamation that he will be introducing troops and why he will be
introducing troops. Um, that's the only with procedural obstacle for invoking the Insurrection Act. So it's a relatively minimal procedural hurdle that he must satisfied. Thanks Hal. That's Harold Crent,
professor at the Chicago Kent College of Law. Next Friday, the d C. Circuit Court of Appeals will hear oral arguments to determine whether Judge Emmett Sullivan has the power to review the Justice Department's plan to drop its charges against former National Security advisor Michael Flynn after his two guilty Please joining me is Brad moss, a partner at Mark said, Brad, can you remember the last time an appellate court asked a federal judge to explain his actions? No,
I mean this. I'm sure there are instances in the past in which that has occurred, probably not the first time it's ever happened. But this is altogether a rather unusual and somewhat unprecedented situation, because this is where a situation where the defendant has already pleaded guilty and more than one hearing and in writing the guilty plea was
already accepted, they were ready for sentencing. The Justice Department had defended itself multiple times against allegations of misconduct, against allegations that the that the false statements were not material, and then all of a sudden, at the last minute, but there meant changes its mind without rescinding its previous sworn assertions defending its position, and said we're going to
dismiss the charges. We've reconsidered our legal analysis, and so put Judge Sullivan in a rather difficult situation, which is why we are in the current predicament in which we find ourselves that now has the DC Circuit hearing this next week. Judge Sullivan responded through his attorney, what was
his response to why he stepped in here? So the the ultimate point that Judge Sullivan's attorney was arguing in outlining is that this is a way too early and premature for the circuit or for any kind of you know, release to be provided, because Judge Sullivan hasn't actually done anything yet. So under criminal Procedure forty eight, which is the one the government moved to dismiss the charges, it requires leading the court requires the court's permission at this
point to have the charges dismissed. And what job Salvan is saying is, I'm not a rubber stamp. I get the I have the discretion to inquire before I grant leave.
I have an unusual situation. It's virtually unheard of for the government to withdraw the charges in this context, after the defendant has already pled guilty multiple times in my courtroom and to me, and after the government has fought back allegations of Brady violations and things along those lines and passed motions, and to now suddenly, with this politicized environment,
to move to withdraw the charges. And the Judge Sullivan's comment was, I have the authority in that circumstance to a point, an A meek us to appoint someone like Judge Gleeson to argue against the dismissal, if only to ensure the adversarial process before I make a choice. My choice might still be to grant leave and dismiss the charges, but I have that discretion to review that situation first,
and that the Circuit shouldn't be intervening. It should be allowing him to conduct that discretionary In Corey, he said that the Department of Justice repeatedly affirmed for years that the evidence that Flynn lied to the FBI was iron clad and crucial to the FBI Russia investigation. How does that compare with what the Department of Justice has said? Yes, so now the just departments changed view on this, never
rescinded any of their past defenses. All they have essentially said here is that even if he did lie, we have now concluded that it was not a false statement material to an ongoing investigation because the investigation shouldn't have been ongoing in the first place, which is some very fancy, you know Monday morning quarterbacking by the just former and lawyer who signed that brief, saying they shouldn't have been talking to Flynn anyway. That didn't rescind any of the
past affidavits they submitted. It didn't rescind any of the past motions and oppositions they had filed in. What particularly concerned Judge Sullivan was he didn't have any of the original prosecutors on the brief. It was a brand new, temporarily appointed individual put in there by the Attorney General who signed that brief alone, and then he left as well, And so that was why Judge Salvian wanted to inquire
further to see what exactly was going on there. Does anyone take into an account that Flynn pleaded to these particular charges but there were other charges that were being
considered against him, Yeah, that has been mentioned. I mean, there's certainly there was a Foreign Agent Registration Act issue that came up in the plea deal that was mentioned in the statement offense that Michael Flynn had been doing work in support of Turkey and he had never registered with the Justice Department as a foreign registered agent, and that he had lied about the detail that was part
of it came up in the statement offense. And there was always this issue of for there other charges that Mueller's team had been considering against Flynn prior to him pleading guilty. There was a question about whether or not he had properly outlined his work in support of Turkey and his interactions with various foreign government officials on his security clearance paperwork, and failure to properly document that is a felony can be a felony under again a team USC.
One thousand one. So there were certainly other issues that could have been raised if Mueller had wanted to throw the entire kitchen sink at him, but they didn't. They struck a plea deal to get his cooperation, and those were things that I'm sure to some extent Judge Sullivan would want to enquire into as part of his assessment of the rule forty eight motions. Flynn's lawyers filed this rid of mandamus. Did the Circuit Court have to call a hearing and ask for briefs and everything? Could they
have just rejected that out of hand? They could have rejected it out of hand, but I don't think anybody was expecting them to do so, given the sensitivity of the topic and given the constitutional concerns. I mean, there's certainly an issue about Brady violations and here that have been alleged there. It would have made no sense for the Circuit to have just summarily denied the motion. It was certainly proper for them at that point to get briefs,
to let Judge Slivan submit a brief. Let's just department submit a brief, to let AMICI submit brief, and to call a hearing and to hear this out and to let this be truly argued before this panel. How it will play out, I think is anybody's guys. I think a lot of people are trying to get ahead of themselves on whether or not politics will play a player Roland who decides how to vote on this vere person panel with respect to whether grant that the right of
mand Dame is. I do not believe they will ultimately grant. This is a more conservative panel than you might expect to find at the DC Circuit Court of Appeals, considering it's it's makeup, and with one president Trump appointd so might that play into how the judges view this? And and that's kind of going towards what I was just
saying before. I think a lot of people are assuming that you know, because of the more conservative vent if some of these judges are more closely alliance to the president, that they will automatically just vote, you know, and lock
step with the president. While that's certainly a potential, you know reality, I think some people are underestimating the extent to which you know, one or two these judges might be a little off put by the idea of the circuit granting this kind of relief because of the door
it could open in the future. I think it would go against some of the conservative principles for them to allow for the just department and of criminal defendant who had already played guilty to you know, essentially joined forces
against the judge. So I think lis a degree there to which each others are going to play it a little put close to their vest of just how much they're gonna let politics, you know, how some of their overriding conservative you know, legal principles might play a role in how they tried to weasel their way out of this and basically say no, this has got to go back to the judge until he actually makes a decision.
The first when the federal government filed its last brief, it took a step even further than the Flynn attorneys had done in asking the court to stop Judge Sullivan or any other judge from proceeding with contempt proceedings, which is different from accepting the play or not correct and so. And that was in the context that technically, under federal law, federal judges have inherent authority to hold an individual that came before them in criminal contempt or lying or providing
false statements to the judge. And that was something that obviously jud Sullivan was going to inquire into with his proceedings at a district court level because Mr Flint had come before first Judge Contraras and said, yes, I am pleading guilty, eyelied, and then had done before Judge Sullivan, is that yet I am guilty? I lied, had done that in a sworn statement, And so I'm sure Judge Sulvon was going to be asking him. I asked you over and over and over, are you sure? Are you sure?
And you said you were? And now you're pulling it back. So are you lying? Then? Are you lying now? And technically the Judge Sullivan has the authority in that circumstance. I don't think he would employ it, but he has the authority to criminally punish Blend himself. And how does the Justice Department answer that, because it seems that that's just a separate issue from the Flynn play that if someone is received to have lied to a court, the
court has the right to protect its integrity. Yes, so the Just Department's view, in this very tread soul like contorted argument they had to make basically say it would be inappropriate for Judge Sullivan to go down that path in this situation where the Justice Department is now apparently siding with Flint's lawyers, saying if there were the improprieties in how the FBI had conducted the quarries in the context of it, and so therefore, to whatever an extent,
Flynn may have provided the statements that if now we're candid, it would be inappropriate for the judge to try to use that inherent authority. And to be clear, that inherent authority is rarely, if ever used, that it's not something judges commonly have to worry about because usually law enforcement takes care of it, and d OJ certainly doesn't want to start feeding any kind of authority to the judges in that regard. When the Justice Department decided to drop
the charges against Flynn. It came as a shock to most people, and Attorney General bar in a TV interview explained that it was justice for all and that you wanted to make sure that everyone was treated the same. But how unusual is it after all the litigation that's gone on, and what is behind this withdrawal of the charges against Flynn. Is it part of an attempt to erase the Russia probe? Well, that's certainly is what it appears to be, at least, you know, a hit, bit
by bit effort. First in the writer Stone sentencing for the President, g o J intervened on the sentencing recommendation, and then now with Flynn, was trying to get the charges pulled back entirely. You see a slow, you know,
steady degradation of the entirety of the Mulla report. You've got, you know, the Attorney General bar has got all these different U S attorneys running separate probes, trying to peel apart and pull apart any semblance trust in what Mueller had done, and trying to suggest the whole thing was a fraud. So to an extent, Judge Sullivan, I think at least to the degree that there's something before him, is trying to reassure public confidence in how this is
being handled. He obviously is not in a position to nor should he be using his role to try to address the entire of Mueller issue, But he is trying to ensure that what was done before him, and he is a constitutional officer, it was appointed by a president and confirmed by the Senate at the time he was put on the bench, has that role to ensure that
the proceedings before him done in candor. And when he sees what's going on here with how d o J is now you know, playing foot see with the Flynn team, there is a certain degree of this dispression that he has that he has chosen to employ to inquire further to make sure he personally is comfortable with what's going
on before he signs off on dismissing the charges. Judd Sullivan was concerned that the career prosecutors handling the case declined to sign the motion to dismiss, but the government's brief was signed by one of the long time prosecutors on the case, as well as two other career prosecutors, So does that mitigate against that one argument by Judd Sullivan it might and I think that's something that he
was certainly going to, you know, inquire into. And this is part of the whole argument that ultimately he's making to the circuit is this is all prettymature to try to stop what he's doing. He hasn't even made a
choice yet. He might still grant the dismissal and Flynn will go free, But all he's trying to do at the moment is flesh out the record a little bit more clearly, given the unusual nature of what's going on before, including this really weird set of memos coming out of d O J. You know, first before they withdrew everything, and now after they tried to withdraw charges and the rotating chairs of who's on the breech, and that's within
his discretion to enquire into. I personally think he was still going to grant themotions dismissed in the end, but now I just don't know. Thanks Brad, that's Brad Moss of mark Z. I'm Jim Rosso and this is joom Burn