Can Trump Legally Use Troops Against Protestors?

Does a president have the right to call out the military to attack American citizens on American soil? Before Donald Trump claimed that he could declare war on protestors, I had always thought the Founding Fathers had banned army attacks on civilians, at the outset. It makes sense since it would keep a president from performing a coup to become “president for life.”

As it turns out, the Insurrection Act of 1807 had just the opposite cause. First, this is the wording:

An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect. APPROVED, March 3, 1807.

Wow. That’s scary. But the cause of the Act was not to allow a president to become a dictator. It arose from the fact that before this, a president had NO legal authority to use troops against citizens. At all.

The act was born out of president Thomas Jefferson’s concern that Aaron Burr was plotting an insurrection against the United States government. After his term as Vice-President had come to an end in early 1805, Burr headed to Ohio and started recruited frontier settlers with the goal of capturing New Orleans and the Spanish territory west of the Mississippi River for the purpose of creating a separate western country.

But the notorious General James Wilkinson, the governor of Louisiana Territory and a co-conspirator with Burr, eventually turned on the former Vice-President. In October 21, 1806 and October 26, 1806 letters, Wilkinson informed the president about the conspiracy. Somewhere around this time, Jefferson must have talked with or wrote to Secretary of State James Madison about the legality of using federal troops to stop Burr. On 30 October, 1806, Madison wrote to Jefferson to tell him that “it does not appear that regular Troops can be employed, under any legal provision agst. insurrections–but only agst. expeditions having foreign Countries for the object.” 

The 1807 Act changed that, but it was about an organized, armed insurrection, which later, gave Lincoln legal grounds to put down the Confederate insurrection. But again, the Act was not meant to attack individuals, unruly or otherwise. It was to put down an organized, armed rebellion intending to overthrow the American government, or authority within the boundaries of the nation. By the way, Aaron Burr was arrested eleven days before the Act was passed.

Later, the Act was reduced in scope in 1878 by the Posse Comitatus Act. Here is that wording:

Section 1385 of Title 18, United States Code (USC), states:

“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

No troops may act against citizens. It’s important to note when this Act was enacted. It was at the end of Reconstruction, and the purpose, clearly, was to keep the federal government from protecting African-Americans from abuse in Southern States.

There have been exceptions.
• 10 USC Section 284 allows the feds to act in drug enforcement.
• 18 USC Section 831 allows the feds to protect us against nuclear weapons, and
• 10 USC Section 282 involves other weapons of mass destruction.

The important exception is The Insurrection Act, Chapter 13 of Title 10 (10 USC Sections 251-255).

This act allows the President to use U.S. military personnel at the request of a state legislature or governor to suppress insurrections. It also allows the president to use federal troops to enforce federal laws when rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. by the ordinary course of judicial proceedings. 

This act was famously used by President Eisenhower to force the integration of Little Rock High School, in Arkansas, in 1957. However, it requires a local official to request federal help. In this case, Arkansas Governor Orville Faubus physically stood in the doorway of the school, blocking nine African-American students from entering. But Ike’s action was authorized by a request from Little Rock Mayor Woodrow Wilson Mann.

It could have been worse. Faubus had called out the Arkansas National Guard to stop the “Little Rock Nine” students. Eisenhower removed the Guard from Faubus’ control, and the students were escorted by the U.S. Army. If Faubus and the Guard had rebelled, there could have been war.

More recently, in 1992, there was rioting in Los Angeles after the police beating of Rodney King. Governor Pete Wilson asked President George HW Bush for federal military action. Again, the feds were requested by State or local officials.

The wording of the above acts could be interpreted as allowing a president to send troops to a State, but only if the State government were incapable of handling a situation—not if they simply chose not to do so. And certainly, by the spirit of the laws, feds could only Constitutionally go in by request of the State or local officials.

This brings us to the event a few days ago. Donald Trump wanted to have a photo-op to show that he was in charge, and could “dominate” protestors, as noted by Forbes.

So he called in the military to remove peaceful protestors with helicopters, gas, and rubber bullets, to clear the path in front of the White House, so Trump and his entourage could walk across the street to trespass on the Church property, which was then protested by the minister of St. John’s Episcopal Church, and its bishop.

Fox reports that park police claim that tear gas was not used, saying it was smoke canisters. They also claimed that it was a total coincidence that they cleared the street moments before Trump appeared. However, a witness is quoted in the same article, saying this:

To be clear, I am not blaming the reporter who has contextualized this decently, but there was intense irritant in the gas. I was hit with it as were many others who accurately described what they saw.

Also, there was no disputing the use of rubber bullets and batons on the protestors.

Since the District of Columbia is not a State, and is under the jurisdiction of the federal government, Trump’s action did not require a request from the mayor or other official of DC. In fact, DC Mayor Muriel Bowser was “shocked and outraged” by it.

Another thing is that the Act is about an action to “enforce the laws.” Trump’s use of gas and rubber bullets was not to enforce any law, and in fact, was unlawful, as it was used against peaceful American citizens, who had, under the Constitution, the right to assembly on public property, and had the right to free speech.

Some of Trump’s supporters deplored the action.

On Tuesday, Pat Robertson, the 90-year-old televangelist, appeared to give voice to that ambivalence, when he criticized Trump for threatening to send in federal troops to states where protests have turned violent.

“You just don’t do that, Mr. President,” Robertson said on Tuesday’s episode of The 700 Club, his long-running television show. “It isn’t cool!”

Others were uncomfortable with the use of the Bible (being held upside down) irrelevantly and cavalierly as a political prop, as well as attacking American citizens using the U.S. military.

“What he did comes off as tone-deaf,” said Costi Hinn, a conservative evangelical pastor and author in Arizona. . .his appearance was criticized by the Episcopal bishop of Washington, Mariann Edgar Budde, as a “charade.”. . . Even some of Trump’s Republican allies in Congress expressed disagreement with Trump’s decision to attend the church. Sen. James Lankford of Oklahoma, a Southern Baptist, told reporters Tuesday he was not comfortable with the images of protesters being disbursed by force before Trump visited the church , while Sen. Ben Sasse of Nebraska, an evangelical Presbyterian agreed in a statement.

“I’m against clearing out a peaceful protest for a photo op that treats the Word of God as a political prop,” said Sasse.

It would appear, according to Posse Comitatus, that Trump should probably be subject to a fine or “imprisonment of no more than two years.” But the real question is whether this abuse of power should be considered a “high crime or misdemeanor,” which would subject him to a possible second impeachment.