President Donald Trump was in court on Tuesday afternoon defending the lawsuit brought by California for deploying the National Guard without involvement from the state's governors. Among the legal theories the Justice Department quoted, some have also been parroted by right-wing commentators. However, counterterrorism experts have detailed why these claims are factually inaccurate.
Speaking to MSNBC's Katy Tur, Chris O'Leary, a former senior executive of the FBI counterterrorism division, said that issues like this are handled without involving the National Guard, "and certainly without the U.S. Marines, which is unprecedented."
He stated that the process under the mutual aid system would have involved the Los Angeles Police Department requesting assistance from the county sheriff's department and local, state, and federal agencies, such as the California State Highway Patrol. None of that was done in this case.
If that had happened and "wasn't sufficient to suppress this low-level protest, then they can request the governor provide them with National Guard support," he said.
O'Leary pointed to the Justice Department attorney who cited the Whiskey Rebellion. The former law enforcement officer called it "kind of ironic" because many in the so-called patriot movement point to both Shay's Rebellion and the Whiskey Rebellion, which pushed back against federal forces. The police enterprise didn't exist at the time of the Whiskey Rebellion."
Elizabeth Goitein, co-director of the Liberty and National Security program at the Brennan Center for Justice, talked about the history of the National Guard being deployed in a state over the objections of a governor.
She pointed out that the DOJ lawyer citing Shay's Rebellion and the Whiskey Rebellion doesn't make a lot of sense because "the law that the administration is relying on here did not exist during" those events.
"So, that's not really a very useful argument on the part of the government. In terms of deploying the guard to quell civil unrest or enforce the law over the objection of the state's governors, that has not happened since the Civil Rights era," she continued. "And those were situations in which state and local authorities were either refusing to protect people, civil rights marchers and activists, African Americans trying to attend school against mob violence, or the state authorities were themselves refusing to enforce federal court orders. "
She called it a "very different situation" from what happened in Los Angeles, as the police on the ground there have been incredibly involved.
In court, Judges Mark Bennett, Eric Miller and Jennifer Sung peppered each side with questions challenging their cases. Bennett asked if the DOJ's position was that the court has no role in these situations.
"Is it your view that if the president or the future president simply involes the statute, gives no reason for doing it, provides no support for doing and there is nothing which would appear to court to justify it, that the court still has no role at all in determining whether the president can use it?"
The Trump administration answered, "That's correct." He claimed, "If the statute is unreviewable, then it's unreviewable."
Goitein cited another incident in which the judge asked if the government used a justification that wasn't even in the law, could the court review that, and the DOJ said "no."
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