You're listening to Later with Moe Kelly on demand from KFI AM six forty.
AM six forty. I'm Mo Kelly. We're live everywhere on the iHeartRadio app. And joining me right now on the line as we talk about not only the issues of Los Angeles but the legalities which are being argued in federal court right now is Loyal Law Professor Jessica Levinson, friend of the show, personal friend, Professor Levinson, How are.
You this evening.
I'm so happy to be here with you.
Thank you for coming on under short notice. You know this, but let me just set this up for the audience. Earlier this afternoon, California Attorney General Rob Bonta filed and the emergency motion asking for a temporary restraining order quote, which will prevent the use of federalized National Guard and active duty Marines for law enforcement purposes on the streets
of a civilian city. The motion does not seek to prevent any of those forces from protecting the saale, the federal buildings, and other real property owned or least by the federal government or federal personnel on such property. Close quote, Professor Levinson, give us some sense of what this is about. And what does that stake with this lawsuit.
Okay, because you're one of the smartest people I know, let's really get into it here. As we know, over the weekend, the President issued an executive order and he said, let's federalize the National Guard, and he did so under a part of federal law that I'm going to refer
to as Title ten. And Title ten, in my view, does give the president the power to say, I'm going to call in the National Guard, even if it's against the wishes of the governor, but only for limited circumstances, only for support, only to help protect federal agents or to protect federal property. If you want the National Guard to do more than and you have to invoke, in my view, something called the Insurrection Act. And that's because the Insurrection Act, a different part of federal law, would
suspend pose comatatis, the Posse Commatatas Act. That's the act that says members of the military cannot directly enforce domestic law. You cannot have marines executing search warrants and executing arrest warrants. And so I think what the Attorney General is saying here is a number of things. But the part that you read to me, mo is, national Guard, stay in your lane. You can only under the Presidence Directive Act in a support capacity.
I'm not the legal expert or the constitutional law professor you are, But on its face, I'm reminded that at least as far as federalizing the National Guard without the consent or approval of the governor, there is precedent for that, going back to Lyndon Baines Johnson in nineteen sixty five and what was going on with civil rights during that time. But it's slightly different or is it the same here?
So it's slightly different. You're exactly right, like that is the historic precedent, right, That's what we point to when people say, but how can it be that a president can call in the National Guard and he can do so over the wishes, desires, hope's dreams of a governor, And we point to lbj or Ike where they were sending in the National Guard over the over the displeasure of segregationist governors who said, no, I don't want to
enforce these desegregation orders. Now this is somewhat different because we are talking about a different federal statute. We're instead talking about Section twelve four oh six, not the Insurrection Act, but in my view, the same kind of structural concerns hold, which is, you don't have a federal law that grants the president power on the one hand, but then would allow a single governor to veto that power and take it away.
I don't know how quickly the courts would move on this. Is there any real likelihood that Governor Newsom would prevail with some sort of stay or an injunction or what is the likely outcome?
From where you sit.
So I tend to think no. What's really interesting I know this will interest you MO as a scholar, is that the judge here is the brother of retired Supreme Court Justice Stephen Bryer.
I was wondering if there was any relationship because I heard Briar as I wondered, okay, go ahead.
It's two brothers on a federal bench. And this is a judge who was appointed by President Clint steeped in the law has been a judge for decades. My analysis is that again, the two big hurdles here for California would be proving that the president doesn't have the power to to say I think we're in danger of a rebellion, and that the flip side of that is that federal judges do have the power to second guess the president.
You and I know that when it comes to national security, when it comes to issues of safety, federal judges give a lot of deference to elected officials, to the president. And then I think it's hard for California to try and prove that the governor has to consent, because that's not how I read the statue. That's not the plane language of the statue. In my view, really smart people disagree with me.
You use words like deference and the phrase Insurrection Act. Does that also apply if we were to move further down this road and there's a wider conflagration. Let's say there are protests which happen in New York or Dallas, and there are a number of cities. How much difference historically or maybe presently would be given to the president if President Trump were to then invote the Insurrection Act?
What how level? What's what's the height of the bar here?
Oh my gosh, you asked me the question that I actually haven't gotten in the last what it is forty eight seventy two hours? And so no, it's a great question. So I will tell you not confidentially, because I know we're on the air that I've been having discussions about what will the standard be right when it comes to we're looking at a president and you know you didn't get let me get away with as you should. And I use kind of general language, and I said, I
think federal judges will be wary. But what does that mean? I mean, does it mean that it's just there's no judicial review at all, that it's viewed as something called a political question where federal judges can even be there. I don't think so. Does it mean that there's a very low standard, something like clear aerror, like there's no rational basis for the president to conclude that this is a rebellion? Maybe it's a really low star like that.
I think the answer is that under this particular federal statute, we don't have a lot of case law to indicate what the standard is. When it comes to the Insurrection Act, we would ask similar but different questions, because that is a pretty significant escalation.
My time is running short with you, Professor Levinson a Loyola Law School, but I have to ask you this, and it's a dark question. I want to preface it, because I think we're in a dark period in American history looking at what we've been through in the past. But if we should proceed down this track and the Insurrection Act is invoked, how much daylight is there between the Insurrection Act and martial law? Is there a lot in between or is it a small step?
So in my view, the Insurrection Act would be a significant step towards martial law. I don't think it gets us there, but I think there is a big deal between where we are today with Title ten and where
we would be under the Insurrection Act. There's a big difference between seeing the National Guard in your city but knowing that really all they're there to do is to protect a federal building or to provide logistical support for a federal agent, and seeing a marine go into offices, go into places of employment, and start arresting people, for instance. So I will say I think there are a few big gulfs. You're right, there's a dark question, and I
don't know the answer. All we can look at is public statements that the President can make has made, and try and figure out where we're going.
I honestly don't know where the hell we're going, Professor Levinson, I hope we don't go to that dark place, but we'll have to see what the future holds in the short term and long term. My guest has been Loyola Law Professor Jessica Levinson. You've heard around that show any number of times. I appreciate you and all your expertise, Professor Levinson. Hopefully we get to talk again soon.
I would love that. Thank you.
Have a great evening. It's KFI AM six forty. I'm Mo Kelly. We'll have more in just a moment.
You're listening to later with Mo Kelly on demand from KFI AM six.
Forty KFI AM sixty Kelly here. We're live everywhere on the iHeartRadio app and YouTube. And the word that keeps getting thrown around protests protesters. I if you don't know, I am a serious student of the civil rights movement, understanding why it worked, the strategy employed in advance of protests, and some of the thoughts and considerations made. Did you know the whole idea of nonviolence did not come from
doctor King. It came from Koretis got King. His wife, Doctor Martin Luther King Junior used to carry a gun.
At all times.
And part of the reason he stopped carrying the gun was Kreta Scott King said, you can't do that while also espousing nonviolence. Now, doctor King was of the mind like, look, if if we're going to be attacked, I need to protect myself. But Coreta Scott King understood, understood this was about the optics and retaining the moral authority in the face of what was going to be shown in the media.
That's how prescient she was back in the nineteen fifties and nineteen sixties, understanding that if there were going to be black marches like in Selma, the video that goes out can't be black people fighting with white people. Though the idea was not any different of gaining equality civil rights the Voting Rights Act Civil Rights Act first in sixty four and the Voting Rights Act in sixty five. The goal was to show America in a very naked form.
The goal was to.
Have an organized march and if they were attacked, let America see that they were not fighting back because the optics were more important than anything. And those are some of the small lessons that protests since never understood.
We can talk about it with Occupy wall Street.
We can talk about it with BLM, we can talk about it with the pink pea hats, we can talk about it with any number of quote unquote protests. And to Wallow, I always clown folks because it's always about awareness.
No, it's about strategy.
It has always been about a strategy and a specific goal which can be articulated and understood. And going back to the Civil Rights movement, everything was about the legislation of first the Civil Rights Act to be able to end segregation. How does that tie into what's going on
right now. Well, you heard in my conversation with Professor Levinson that the last time that a president usurped the power of a governor to invoke the National Guard was in nineteen sixty five to have the National Guard against the wishes of the governor of Alabama, George Wallace, to have the National Guard protect who the protesters. All this ties together and protesters today, and it's not even a
youth thing. It's just a generational thing where either they feel that the lessons of the civil rights movement prior to now are antiquated out of dat and there's nothing that they can learn from them, or the only lesson that they learned from them is just marching on the freeway. Now there is and now here's the other side to protests. Historically, protests are to disrupt. When Doctor King was marching, they
were not in concert with the law. They were going into neighborhoods they were forbidden to go by law, by segregation. They were sitting down at lunch counters, they were not allowed to buy law. Disruption has always been part of protests, and protests will never be at.
The discretion of the people who don't like them.
You know, I know people were driving on the one on one freeway says, get out of my way. What the hell are you doing here? Can't you go protests in your living room? That's not how it works. And
don't confuse civil disobedience with violence. Now, how it does get can is you have protests which are not controlled, wholly controlled, and you have these impromptu protests where people can just show up and with their own agendas, with their own weapons, with their own designs, and they do whatever, and rightly or wrongly, it is considered.
Well.
The protests were not all nonviolent, they were not all peaceful. Yeah, but there are a lot of mother followers out there who are not part of the protests, and it's impossible to tell which is which and who is who. Under most circumstances, there's never going to be any perfect protests, never, because you can't control all the factors of who shows
up to your protests. If if Twalla and me and everyone in the studio said we're going to go down and protest at something such a such a and we're going to do it in a public place in front of this building, and the word gets out, especially in this world of social media, we cannot control who shows up. Now, maybe more planning needs to go into it so you have a better reign on who has access to that
particular area. And that comes down to if you should get like a protest permit for a specific location, and then you can actually get law enforcement to protect the protests and keep other people out. You can start controlling some of the factors surrounding your protests, then you have a better chance of controlling the optics and the resulting what ends up on the news, because if someone gets arrested,
there's no name tax saying I'm with the protests. All these folks who were hanging out after ten o'clock last night, and we were talking about it Tuala, people who were hanging around after the order of dispersal had come down. They weren't out there protesting, but they're added to the
number of people who were arrested. They were added to the totality of the violence, the looting, and unfortunately, people, for whatever reasons and political interests, they're going to say, well, this is not a piece full protests, or this is a riot, or this is just a violent display. Why is it they can't all those things will be used against the people who are legitimately protesting. Why am I bringing this up? It goes back to the civil rights movement.
That's what Kreta Scott King was talking about sixty years ago, to make sure that the protests, the marches were not coapt co opted by figures and circumstances which would undermine the main message. That was the ideological difference between doctor King and Malcolm X. Malcolm X says said, why am I going to be non violent in the face of violence? You're seeing how they're cracking our skulls on TV. You see how they're sticking dogs and water hoses on us.
Why would I be nonviolent in the face of that, and doctor King and Kreta Scott King. I don't know if you know this, but Malcolm X was actually at the March on Washington in nineteen He was actually there. He just did not speak, but he met with folks behind closed doors, and he told everyone, including doctor King, I'm not going to be shown publicly because what the optics of me, Malcolm X, being at the March on
Washington would cast a different light on the event. How you've been talking about this and I show up, it will be turned into that. That's the lesson that people don't understand. How does that relate to today? And I was going back and forth with people who I assume to be Latino Hispanic on social media. I'll take them at their avatar word. But they were saying, when I fly a Mexican flag is because of culture, It's about heritage.
And I said, I get that. I get that. You're not talking about Mexico the Mexican flag in terms of nationality. You're talking about I am a Mexican person. I am a person. I am a person and with a history, with a heritage, and I'm proud of my Mexican heritage, and that's separate from wanting to be an American citizen.
And I was trying to tell multiple people, I get that, I get all that, But you know what, when people are watching the news, maybe with the sound down or there's a twenty second news bite and they see the flag, they don't get all that context and they don't care. More importantly, they don't care. What does happen is those images of the Mexican flags being flown again and in again in these protests, they're used against you. They're used against the message that you want to have out there.
They're used in a negative way for the optics, which make your protests, if not nullified, unimportant and ineffective.
There are so many lessons.
Which could be learned from the success of the modern civil rights movement, but most people don't know that. They just saw doctor King and a bunch of people walking down the street and they call that marching, and they call that protesting, and they have no idea of the underlying strategy which surrounded all that to make sure that it was successful. If you go back to Rosa Parks, I know we got to go to break. If you go back to Rosa Parks. Rosa Parks worked for the NAACP.
She was not even the first person to sit down and refuse to give up her seat on the bus. It was Claudette Covin. What But why did you never hear about Claudette Covin?
Why?
Because she was fifteen years old at the time and already pregnant or a young mother. The optics of her were not going to work for the civil rights movement.
That's why the.
Later waited for Rosa Parks, because she was more considered pristine and unassailable in a media sense. All of this was intentional. There's a takeaway here. I'm just waiting for people to figure out that there is.
You're listening to Later with Moe Kelly on demand from KFI AM six forty.
I Am six forty mo Kelly here live everywhere in the iHeartRadio App. I always believe, even though these are tense moments, there are lessons for us to learn.
There's a lesson for me to learn.
There's a lesson for you listening right now in your car, or maybe you're listening in your headphones on the iHeartRadio app. There's a lesson for all of us to learn. Because history is really cool. When you take time to understand it and put it in context, it'll give you a lot to draw upon.
When you're in this moment.
And if we study this moment the next time we're here, we will be here again sometime in the future.
Years down the road, we'll have this to reflect upon.
Last segment, I was talking about the civil rights movement and how we can learn so much from it and
use it to put this moment in greater context. And I was upset in my own way about why people who are protesting today and other protests don't use what worked in the civil rights movement and understand why it worked to better affect change, because when I see people who are out in the street, and this is not just specific to these protests surrounding Ice Rays, this has to do with all the protests of the past ten
to fifteen years. Really, there's really no direction or focus the civil rights movement of the fifties and sixties, and I do mean fifties because it started in the nineteen fifties. There was always a legislative goal of ending segregation, which was the Civil Rights Act, and then ensuring the right to vote. The voting Rights Act, the Civil Rights Act in nineteen sixty four, the Voting Rights Act in nineteen
sixty five. When they had the March on Washington in nineteen sixty three, that was to publicly show President Kennedy that this is the type of support we have for civil rights in this country. It was about because there was supposed to be a sit down in Washington, d c.
Between Kennedy and King.
That's the whole point of the March on Washington moving towards that legislation. Then we know that Kennedy was assassinated, and then it fell to the shoulders of LBJ, Lyndon Baines Johnson. Part of the reason is we talk about
the politics of how we got here. Part of the reason why the Democrats became the party of African Americans and labor, the realignment of different constituencies is because that even though the Democratic Party, which was a racist party in the South, if you go back to the fifties and sixties, the South was all blue, all blue, all Confederates.
But because LBJ, who himself was an avowed racist, was able to sign the Civil Rights Act and the Voting Rights Act, the alliances of the party switched where today, if you look at the map, the South is all read. That's when it happened. People say the parties didn't switch, Oh, yes the hell they did. And it was because of
the Civil Rights Act. And it was Lenna Bains Johnson who allegedly famously said that in signing the Civil Rights legislation that I'm signing away the South for the next generation. And disaffected Democrats left the party. But why are you talking about this Because every successful protest leads to legislation.
It will be different if we could hear right now or there was some savvy politician or elected official out there who was saying, like, because of what's going on right now, I'm going to make sure that we're going to pass this legislation, federal legislation. I'm going to introduce it in Congress where Ice can't do xyz that whatever the legislation is.
But see, they're in lives.
The issue with even these protests right now, the legislation for these Civil Rights Act and the Voter Registration Act, all those things came from within doctor King's kim. This was legislation that was handed to the office of the President. These are our asks, these are our demands, if you will correct. So far, so far, all I have seen is a host of blank ICE signs. I've seen American
and Mexican flags, I've seen graffiti. I have yet to see any actual spokesperson or spokespeople that are representing a global movement. Because I'm reading that the ICE protests here in Los Angeles that activists are ready to take them to Chicago, Detroit, Miami, They're ready to go nationwide.
But these are just activists.
With a campaign of awareness saying what saying, we don't want ICE to come and do X, Y and z. You've got to put that into some type of bill before anyone that a governor can sign that there are steps to this.
If you don't have anything to say.
To President Trump outside of we don't like this, that doesn't mean anything.
Here's the strategy.
A savvy party, which the Democrats are not a savvy party, would have already been creating legislation that they could use to generate momentum and support for the midterms. And if they were to flip the House and or the Senate it's less likely the Senate but definite possibility in the House, then you could put legislation on the table, which could possibly be passed in twenty twenty eight. Twenty twenty eight
is a long time away. Well, going back to the civil rights movement, the Montgomery bus boycott was nineteen fifty five. The Civil Rights Act didn't get passed until nineteen sixty four. There is a loss, and it takes time planning, strategy, execution.
It's not running around in the street for three or four damn days. It's not. It will never be successful like that.
I don't care if the protests last till the end of this week without any concrete legislation to put even before the mayor's office, even if it's to say, we want to ban the practice of ice being able to come into businesses and snatching people from their workplace. States, right, states, right, tit a minute, Absolutely, if you just want to enforce those things, make sure you have something up front that you're asking for. But right now, just walking aimlessly down
the street because there is there is no goal. They're not walking towards a end goal where there's a rally, where there's you know, some type of speech to be given that you can.
Get out to the public. So for I haven't.
Seen any of that and I'm not knocking the right to protest. Look, hey, y'all want to go out there and make yourself heard, do that, but make yourself actually heard.
I can't tell the Latino community or those who are most concerned with immigration reform or ice reform, how to do it in the sense of what you would want in any proposed legislation. I can tell you that nothing will change until.
You do it.
No amount of walking, no amount of interviews, no amount of confrontations with police or ice will ever change the status quo. And it's going to have to be over a period of time. It's not going to be immediate, and you have to be committed to it. Right now, nobody's committed to anything other than just getting on TV, getting content for social media. Nothing more, and nothing is. And here's the thing which people just forget. For whatever reasons,
people in power are counting on your laziness. They are counting on you not doing anything more than what you see on TV right now, just marching, showing your numbers, expressing your outrage, being mad, being afraid, yelling at police, quote unquote, calling elected officials onto the carpet, and what happens three weeks from now, not a g damn thing, nothing, nothing, And this will go from city to city to city to city until someone finally actually figures out how this
game is actually played and then starts played to win. And right now, love him or loathe him, President Trump is winning because he knows. He is clear that this is good for him politically, the optics are great for him electorally, and unless something changes legally, he's going to keep on doing this same thing. And I keep trying to tell people I don't have any dog in this fight. I know I gotta go break. I don't have any
dog in this fight. And I'm not advocating one thing or another, but I am a student of history and I'm telling you all this is playing out to form because this has been as far as strategy goes, this is the strategy which has been employed by the Trump administration.
Y'all just haven't been paying attention.
He told you about this, he said he was going to do it, he laid out the steps in which it was going to be completed, and now he's executing his plan.
And those who are mad.
At the plan don't have any response other than say it with me protesting air quotes.
You're listening to Later with Moe Kelly on demand from kfi AM six.
Forty KFIM six forty. It is Later with mo Kelly.
Actually it's just KFIM six forty mo Kelly in on this special news presentation of what's happening in downtown Los Angeles.
And let's be honest.
I've been following at least a television coverage and the print news coverage of what is or is not happening. There is nothing going on at this moment. Could that change in the next five to ten minutes. Possibly, But I can only tell you what is or is not happening, what might happen or not, what someone else is wish casting. And what I mean by that is some people want violence, some people want there to be right, some people actually want there to be a need for the National Guard
and the Marines. As of right now, there isn't I can't make up something to tell you which is not happening. There is no news coverage of violence transpiring right now.
Now.
You can look at various channels and you can see the positioning of law enforcement downtown. We are one hour into the curfew, which is going to extend until six AM. I suspect from the remarks of Mayor Karen Bass from the way she phrased it, that they'll probably be a few nights of these curfews, especially if it's successful tonight, they wouldn't back off on it. If it's successful, we'll
know more by tomorrow. But if you check us out on YouTube, we're having some live feed from CNBC, and we say CNBC because there's nothing on k CAW, there's nothing on CBS, there's nothing on KNBC regarding this. Right now, NBC has America Got Talent and they've been on that show for the past hour or so.
I don't know how long that show has been on. Yeah.
In the TV we have all of the local networks up on screen and they are all running normal, regular programming.
So yeah, I mean he's died out. Yeah. Yeah. I try to be as factual as possible.
Now we may disagree on the analysis and interpretation of those facts, but my first and foremost goal is to make sure you have as much accurate information. And then, yes, I tried to provide some context. Tonight, I've been going more heavy on the history because history is speaking to
us in this moment. If you recognize some of these things, If you know what has happened in nineteen seventy with Kent State that informs tonight with the addition of the Marines here in southern California, if you were here or old enough to remember nineteen ninety two, actually remember it, then you'd have an understanding of what tonight is or is not in comparison to nineteen ninety two. I'm o Kelly Cay If I am six forty, live everywhere in the iHeart ready out a spy
And kost HD two Los Angeles, Orange County more stimulating talk