This case vignette is part of the CSIS Institutional Integrity project, which examines the potential and responsible role of Department of Defense and Department of Homeland Security federal forces in U.S. presidential election and transition contexts. For more information on the laws and norms that guide federal force deployments, see “Buttressing Institutional Integrity in an Election Year.”
“We are ending the riots and lawlessness that has spread throughout our country. We will end it now. Today, I have strongly recommended to every governor to deploy the National Guard in sufficient numbers that we dominate the streets. 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 residents, then I will deploy the United States military and quickly solve the problem for them.”– President Donald Trump (June 1, 2020)
On June 1, 2020, shortly after delivering remarks in the Rose Garden, President Trump and senior leaders in the executive branch walked across an empty Lafayette Park to St. John’s Episcopal Church. It was later reported that moments earlier, protestors were tear gassed, pepper sprayed, and shot at with rubber bullets by law enforcement officers to clear a path for the President. The President’s photo-op was intended to be a sign of strength and unity amidst protests across the country. Instead, it was met with widespread criticism and raised questions about the role of federal forces deployed to D.C.
In the days immediately following the murder of George Floyd, D.C.’s Mayor Muriel Bowser ordered a citywide curfew on May 31st and requested the D.C. National Guard to provide law enforcement support. Shortly after, President Trump activated 1,200 members of the D.C. National Guard, surpassing the number of troops initially requested by Mayor Bowser.
Normally, the Guard is under a governor’s control unless they are formally moved to federal status pursuant to lawful authority. National Guard acting under a governor’s control can undertake law enforcement activities. Federalized National Guard cannot, unless the President has invoked the Insurrection Act, which provides an exception to the general prohibition under Posse Comitatus against federal troops engaging in law enforcement. Under § 49–409 of the D.C. Code, the “President of the United States shall be the Commander-in-Chief of the militia of the District of Columbia.” Because of D.C.’s unique status, the President has authority over the D.C. National Guard without having to federalize them, thus allowing them to perform law enforcement functions.
In the days following the President’s activation of the D.C. National Guard, the Guardsmen were joined by out-of-state National Guard troops operating under Title 32 orders, as authorized by their respective state governors, active duty troops, and local and federal law enforcement officers. In an internal document prepared for Chairman of the Joint Chiefs, General Mark Milley, it was reported that a total of 7,600 individuals were stationed in and around the D.C. area—2,950 law enforcement personnel, 2,935 National Guard units, and 1,704 active duty troops stationed just outside D.C.. The 82nd Airborne Division, which is the “on-call” component for global crisis response and trained to deploy within 18 hours of an order, was mobilized to respond as well. They were kept in reserve in Virginia, not in D.C. The states that sent National Guard forces were overwhelmingly Republican, setting a potentially dangerous precedent for use of politically aligned federal troops to police along s partisan lines on partisan issues.
Not only were forces sent in against the Mayor Bowsers wishes, but once deployed there were questions about whether the forces were carrying out their orders properly. In addition to the Lafayette Park controversy, some of the federal officers did not properly identify themselves and at one point military helicopters flew low to the streets, likely in an attempt to disperse protestors. D.C. law enforcement will typically coordinate actions with federal officials for routine activities. However, this surge in forces operating outside of their normal missions was neither requested by nor coordinated with local law enforcement.
Finally on June 4, Mayor Bowser wrote a letter to President Trump notifying him that she ended the state of emergency in D.C. and was requesting that he “withdraw all extraordinary federal law enforcement and military presence” from the district. However, the mayor of DC does not possess the same authority to control National Guard forces as a state governor, or even the territorial governors of Puerto Rico, the Virgin Islands, and Guam. Attorney General Barr sent a response letter on June 9th, emphasizing that the violent riots necessitated a federal presence, and the “objectives were to ensure that the rioting would end, the federal government functions would continue, and that law and order in the Nation’s capital would be restored.” Further, he affirmed that all the federal agencies were operating legally within their respective federal authorities, citing DEA under 21 U.S.C. §878(a)(5), the National Guard under 32 U.S.C §502 (f), and DHS forces as deputized Marshals under the Attorney General’s deputation powers.
In the past few months, policy makers, lawmakers, and leaders within the local and federal force organizations have been keenly reviewing and reflecting on various aspects of the D.C. deployments. With regard to specific issues like the low-flying helicopters, the DoD is conducting a review . There are also questions regarding Attorney General Barr’s claims that the out-of-state National Guard’s deployments were authorized under 32 U.S.C §502 (f), because that interpretation of the law would seem to serve as a “backdoor” to the Posse Comitatus Act.
Hearings have also taken place to provide clarity into how forces were deployed and under what command. Addressing issues of concern about who was commanding troops in D.C., General Milley testified on July 9th that he only served as an advisor to the President and was not commanding troops. In further defending the military role in D.C., Milley reported that no active duty troops were used in the city—they were just put on alert outside the city should tensions escalate—and they were ordered by Secretary Esper to take “de-escalation measures.” However, both did express regret for appearing with the President during the Lafayette Park incident, stating that it sent the wrong message about military involvement in domestic affairs. It is believed that some of the public perception issues early on during the D.C. deployments might have influenced military leaders to take certain public positions emphasizing military restraint over the past few months. For instance, Secretary Esper publicly stated that the Insurrection should only be considered as a last resort option, and General Milley said in a letter to the House Armed Services Committee that military has no role in elections. This stems from his deeply held belief “in the principle of an apolitical U.S. military.” The DC deployment also illuminated that National Guard components from different states may have distinct rules for the use of force, defined by their state governor and the state adjutant general.
The way federal forces were used in D.C. has significantly contributed to concerns about whether long-standing norms can withstand political incentives during an election. Norms against the use of troops domestically except under extreme circumstances, in favor of deferring to local law enforcement in decisions about how to respond to local protests, and ensuring that law enforcement is seen as fair and not politicized, were all tested and seemingly violated. These norms, and perhaps relevant statutes, need now to be reinforced.
(Photo by Win McNamee/Getty Images)