The Insurrection Act, Executive Authority, and More

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The Insurrection Act of 1807 empowers the President of the United States to deploy U.S. military and National Guard troops inside the United States in certain circumstances. But what are the limits of this Presidential power; does does the Insurrection Act narrow the powers granted to the President under the Constitution, or is it perfectly compatible with the Constitution? Who decides the precise scope of these powers?  Can a governor or state legislature reject the offer for help or assertion of power?  


John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation

Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law


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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at



Dean Reuter:  Welcome to The Federalist Society's Practice Group Teleforum Conference call as today, June 8, 2020, we discuss "The Insurrection Act, Executive Authority, and More."


      I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. Please note, this call is being recorded for use as a podcast and will likely be transcribed for use on the website.


      We're very pleased to welcome back, in a returning series of Teleforum, two guests, John G. Malcolm and Professor John C. Yoo. John Malcolm is Vice-President at the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies and a Senior Legal Fellow, all at The Heritage Foundation.


      Professor John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley School of Law. I'm going to turn it over to John Yoo but remind our audience that we'll be looking for questions at about the 30-minute mark or so. So please have those in mind for when we get to that portion of the program.


With that, Professor Yoo, the floor is yours.


Prof. John C. Yoo:  Dean, thank you very much. And thanks to The Federalist Society for hosting us back again, me and John Malcolm from The Heritage Foundation in yet another -- a series on executive power and the Trump years. We started this, what is this, John, probably about two years ago when we thought it was going to be a limited run series. John used to work at the MPAA for a little while so he's very familiar with limited series. But this one's not ending.


John G. Malcolm:  Yup.


Prof. John C. Yoo:  So we thought today, we're going to talk about the George Floyd killing, the responses, and then involving broader issues, response to the rioting and/or the peaceful political protests we've seen in the last week, two weeks, eventually, the separation of powers and federalism issues that are raised by President Trump's invocation of the Insurrection Act and some of the U.S. Armed Forces that we saw in the streets of our city.


      So, John, as I've done in the past, let me throw out some issues for you. First, what do you think about all the developments that have come in just today? Just today, we had one, the arraignment of Officer Chauvin for second-degree murder. He was originally charged with third-degree murder. I think bail is set at $1.25 million.


      Also, you probably saw at the end of last week, the other three officers who were involved with the mistreatment abuse of Mr. Floyd were also charged as aiding and abetting Officer Chauvin. Plus, over the weekend or within the last week, the Minneapolis City Council voted to disband its own police force.


      Plus, we've also had congressional Democrats introducing legislation today that don't defund the police, apparently. Joe Biden and Nancy Pelosi did not say they were in favor of defunding the police, but they are trying to reduce the protections of qualified immunity for police officers, to ban chokeholds, create a national database to track police misconduct, and to even prohibit no-knock warrants.


      So, John, what do you think about all of these different events, particularly the proposals to engage in some kind of reform of policing?


John G. Malcolm:  It's dizzying what is going on. So obviously, what happened to George Floyd was terrible and I actually do support the charges against Officer Chauvin and the other officers. I think the current charge is the right charge, the felony murder charge, basically.


And my colleague at Heritage, Amy Swearer, has written a couple of blogs outlining what Minnesota law is in this area and why those are the appropriate charges. She had actually written her blog before he was charged with anything and said that third-degree murder, which was the original charge, it was inappropriate. So I think the charges now are right, whether they'll stick or not, I don't know.


The House Bill is a whole panoply of things, covers all the things you just talked about and also best practices and body worn cameras and calls for a renewal of the pattern and practice investigations that occurred routinely during the Obama administration and in fact beefing them up by giving the civil rights addition of the Department of Justice subpoena authority.


They didn't touch on the defund issue. The closest they got was saying well, these are local matters. And what's happening in that area is remarkable. So the Black Lives Matter movement has now said that they are totally in favor of the defund movement.


The City Council in Minneapolis, a veto proof majority of the City Council, is now on record saying that they are in favor, as you said, dismantling the Minneapolis Police Force. Who knows what that's going to look like? When the Mayor of Minneapolis stood up at a rally to express his support for the protestors, he was asked to whether he favored dismantling, defunding the police department, dismantling them, and he said he did not. They booed him off the stage.


In Los Angeles, the Mayor, Eric Garcetti, had said he's going to take $100-150 million that was slated to go to the LAPD and it's now going to go to communities of color. Bill de Blasio, the Mayor of New York City, has done much of the same thing. It is incredible what is happening and, of course, what's been happening in the streets is rather remarkable too, all of the looting.


Most of the people have been peaceful protestors. That is their right. Of course, they're violating stay at home orders, but totally setting that aside for the moment, but what's going on in terms of attacks on business owners, innocent civilians, law enforcement officers, the looting is just horrific to see.


Prof. John C. Yoo:  I share your condemnation of what happened to Mr. Floyd, and, like you, I support the prosecutions. I think it's actually difficult to win a second-degree murder charge here as opposed to third-degree, which would, I think, be much more simple because of the intense standard.


And then the felony murder charge is difficult because you have to separate the felony out from the murder, and that's going to be hard. But I totally understand why for political purposes the prosecutors upped the charges. But I think it's just going to be harder to win.


      I also think it's not a wise thing to have an attorney general, Keith Ellison, actually say he's going to try the case. I would put it in the hands of an experienced career prosecutor who's handled these kind of things before. I worry, in fact, that they're going to try to let politics overtake the substantive law, which could lead to -- I hope this doesn't happen, but you can imagine how bad things would get if there's an acquittal. That's what happened with the Rodney King case out in LA.


John G. Malcom:  That's true. That's true. Let me push back a little bit on a couple things you said. One thing that's remarkable is that Keith Ellison had his picture taken in the past with an Antifa manual, and his son is one of the city council members who has declared his support for Antifa and has called for dismantling the police department.


      With respect to the charges, they're quirks of Minnesota law that I think make the second-degree murder charge more appropriate. So the third-degree murder charge, which is acting recklessly, is really designed for the drunk driver who plows into somebody recklessly and doesn't know who he is hitting, and death results.


      Minnesota law says if there is an identifiable victim, and here, it was clearly George Floyd, that that charge is inappropriate. You are right, of course, that the felony murder charge will be difficult because you will have to separate out the underlying felony which is the assault on George Floyd from his actual murder. But I think that if you -- the facts here are as good as they're going to get if you were to try to do that.


Prof. John C. Yoo:  I hope you're right, and we'll see what happens.


      So why don't we turn, then, to what we originally were scheduled to talk about when we scheduled this last week, which are the panoply of issues that have been raised by the political protests, which in some cities, I wouldn't say led to but occurred at the same time or in the midst of these violent protests where we saw rioting, looting in a lot of the major cities.


      And so first question is -- and this is also prompted by President Trump's tweets and invocations of the Insurrection Act of 1807. So first question I think would be a federalism question, which is does the federal government really have that significant a role in quelling civil disturbances of this kind? And can President Trump actually send U.S. troops into the cities as he has threatened to do and as he did -- as, well, mostly governors did, but as he did in some places around the country?


John G. Malcolm:  So I think the answer to that is he does have some authority to do it, and it could potentially be a big and very valuable role, but it has to be used very, very carefully. And I'm not sure that we are there yet.


      So the States under the Tenth Amendment have primary police power to protect the health, safety, and welfare of the inhabitants of those states. And that's why they have police forces that dwarf the size, say, of the FBI and the other federal agencies in some cases. And at times -- and obviously, the governors can call in the National Guard to supplement those law enforcement resources. Over half the state governors have done that at this point.


      The President has some authority. He could federalize the National Guard, which was done, for instance, by Eisenhower against Governor Faubus at Little Rock High School and again by Kennedy and Johnson in Alabama.


      In terms of calling in the military, obviously, they've played a support role. Military officials usually called in by governors to deal with things like natural disasters. They had a big presence after Katrina, for instance, but calling in the military to quell riots and potentially fire upon protestors is a very, very different kettle of fish.


      The President's got some authority. There's certain provisions of the Constitution that come into play. So Article I Section 8 Clause 15 says the President can call forth the military to execute the laws of the Union and suppress insurrections. There's the Take Care clause, and he has a duty to see to the equal protection of laws. There's the Guarantee Clause for Republican form of government to put down domestic violence.


There's direct constitutional authority. He's got statutory authority too. There's the Insurrection Act, which you talked about of 1807. He's also got the Ku Klux Klan Act of 1871. And there are exceptions to the Posse Comitatus Act of 1878 that he could invoke.


But the stakes are very high. He clearly said last Monday in the Oval Office that if the governors didn't handle matters, that there was a complete breakdown in authority and the rioters and looters were overwhelming state authorities that he would call in the military and end the matter quickly. And then he -- well, he didn't deploy them. He called in, and they actually arrived in Washington, 1600 troops from the 82nd Airborne and used a military helicopter to clear out Lafayette Square for the photo op he did at St. Johns.


And that causes, I'm sure we'll discuss, a massive backlash against him, with the exception of Senator Tom Cotton, who caused his own mini revolt by running an op-ed in the New York Times supporting the invocation of the Insurrection Act.


But fortunately, so far, the military has not been called in, and he has not had to federalize the National Guard. Governors have been doing that, and things are calming down. But it's still very tense situation. And Antifa, for instance, has said that they're going to remain out in force and try to cause chaos until a massive Black Lives Matter rally that's scheduled, I think, for couple days from now, like June 13. So it's still a very dicey situation.


Prof. John C. Yoo:  I probably read things a little more strongly on the side of the federal government and on the President than you, John. Although, I do think in the end, this is really a question of judgment and prudence rather than legal authority.


John G. Malcolm:  Right.


Prof. John C. Yoo:  Like you, I think -- I agree with you. And it's the same structure when we talked about, a few shows ago, about a podcast ago about the response to the pandemic too. Public health is not a constitutional power given to the federal government then, so we rely on states to take the primary role and the federal government's in a supporting role.


      I would say that's generally the features of our system for civil disturbances. Although, the federal government actually does have more power than it does over lots of other subjects that go unstated in the Constitution. As you say, the President has the power to call forth the militia to execute the laws and to suppress insurrections in Article I Section 8.


      The primary check on that is really Congress's control over the militia. And then the interesting Republican Guarantee Clause, but the Republican Guarantee Clause requires the legislature or the executive of the state to request federal intervention. But those are both cases where the Constitution explicitly gives the federal government, I think, greater power than it would normally have in some other area that falls within the state government's police powers like pandemics.


      The second thing is I also, I think, agree with you that as a separation of powers matter at the federal government, the triggering of that power has already been delegated by Congress to the President in the Insurrection Act of 1807. And it's -- I think it's just flatly wrong when you see people writing op-eds or speaking on TV shows claiming that Trump is seizing dictatorial power or using troops in violation of constitutional norms or -- as you point out, this is a power that presidents have used for some time. The law was actually passed in 1807 to help President Jefferson enforce the Embargo Acts, an act which had been widely resisted in the Northeastern states at that time.


      Of course, President Lincoln invokes, I think, both a constitutional and statutory powers at the start of the Civil Was. Lincoln never considered the Civil Was an international war. He considered an insurrection by a combination -- because he used the language of the statute in case law, by combinations of people preventing the enforcement of federal law.


      And then as you point out there, these arguments that President Trump or the federal government can't send in troops in opposition to the wishes of the state. And I think, again, that confuses policy or politics with the law. We have examples. Dwight Eisenhower, as you mentioned, in 1956 sends in federal troops when the governor, who is resisting efforts to desegregate, was actually calling out his National Guard units to prevent the enforcement of federal law there.


      But you also have Kennedy, Johnson in using this power. And then I think the most recent notable use was, hopefully not a situation similar to this one, but in '92 after the Rodney King verdict where the government sent troops into LA. Although, the interesting thing I just learned was that even though Governor Pete Wilson requested federal troops, they never actually hit the streets of LA. The pictures we saw were of the California National Guard units and that the true federal units didn't actually have to hit the streets there.


John G. Malcolm:  They were there though. They had them.


Prof. John C. Yoo:  But I quite agree it's -- yeah, they were there, yeah, in this backup role. But the pictures we all remember were really of California National Guard units. So it seems to me that it's not really a question of legal power but a question of whether, to me, the President is exercising good judgment, prudential judgment, when he looks at the facts and decides whether to invoke these powers.


      So maybe we could -- I was going to say what do you think of that? Because you raised the Lafayette Square, clearing of the Lafayette Square protests and we have seen some troops. What do you think about this last question, has President Trump used that power appropriately?


      And we also saw over the weekend and at the end of last week, responses by retired generals, like Colin Powell and Jim Mattis, who have criticized the President and suggested that the -- I think Powell's word was drifted away from the Constitution in these claims of power.


John G. Malcolm:  Yeah. I don't think he's drifted away from the Constitution for all the reasons that you say. He does have the constitutional authority to do it, and he does have the statutory authority to do it.


      You're right, by the way, of course, that the Insurrection Act requires cooperation and in fact a request from the state, but the Ku Klux Klan Act doesn't. There, the President could -- if he said federal troops are needed to enforce equal protection of the law and the denial to certain classes of people, he could go in without the authority of the states.


      And you're right. Pete Wilson requested the marines to go into LA, and they were there, and he was heavily criticized afterwards for having done that. This is a political matter, and the stake are really, really high. So it started, actually, on Monday night, I gather, that there was a military helicopter, an Army black hawk, that was there in case of aggressive resistance to clearing out Lafayette Square so that he could walk into Lafayette Square to go to St. Johns, which is an amazing church, in case anybody who hasn't seen it, right off of Lafayette Square.


Every president since James Madison has gone to services there. And the night before, some not peaceful protestors attempted to torch it. So I understand why he wanted to go there, but not only did they clear out people who at that time were really being pretty peaceful, but Mark Esper, current Defense Secretary, and Mark Milley, the current Chairman of the Joint Chiefs of Staff, accompanied the President. And they got a lot of criticism for doing that, and the backlash has been extreme.


      So Tom Cotton, as I said, wrote this piece in the New York Times calling on the President to invoke the Insurrection Act. The Times apologized saying that they shouldn't have accepted the article. And then the head editorial page just resigned. Esper risked his job by coming out and saying that the President could do this, maybe he should do it as a matter of last resort, but he didn't think it was appropriate at this time.


Mark Milley, again, the current Chairman, said that he thought that this was an inappropriate time to do it. And then there were others, Jim Maddox, his former defense secretary, Mike Mullen, former chairman of the Joint Chiefs of Staff, Colin Powell, also obviously former defense secretary and also chairman of the Joint Chiefs of Staff. They all came in against the President, said that he was reckless and doing this as a political stunt. And the stakes are really high.


I think that, for instance, when Tom Cotton and his op-ed pointed to polls that supported the President invoking the Insurrection Act, I don't think he mentioned it for that purpose. But it almost fed into the narrative that this is something that he ought to do for political purposes. I don't think that that aspect of Tom Cotton's op-ed was very helpful to the President.


And the stakes are high all around. And Trump has responded to all of this. He's blasted Maddox. He also criticized Lisa Murkowski, who said that she didn't particularly support the President invoking Insurrection Act, pledged in two years, he was going to campaign against her.


But the President has enjoyed widespread support among the military, and I think that that is potentially at risk here. And there's also the outside possibility that if there are members of the military who are ordered to do something that they consider to be excessive and unlawful, they think it's going to violate the First Amendment rights of protestors to air their grievances, that they might conceivably disobey the President.


Mark Milley, the guy who, as I said, is current Chairman of the Joint Chiefs of Staff, a few years ago issued -- he gave a speech in which he talked about a disciplined disobedience and that the military could serve a higher purpose if they're asked to carry out an unlawful order so that -- I'm hoping that things will calm down, as to say the 82nd Airborne has now returned to their home bases, but they're certainly at the ready.


So I don't think there's so much whether the President can do it, but whether he should do it and what the political stakes are. And they are very high.


Prof. John C. Yoo:  I might actually be harsher in my criticism of President Trump than you. I do think he has the legal authority. I think it's pretty clear. I think presidents of both parties have relied on it. It's not some ancient act from the 19th century that's suddenly being dusted off and used as a feature of these kinds of disturbances in the 20th century too.


      I think, though, that the clearing of Lafayette Park was a mistake, again, not legally, but as a matter of judgment about policy. I could see why the President might want to show that he had the right to walk across the park in front of the White House to that church, but I don't think it was wise to clear the whole park of protestors who, I believe, were still protesting peacefully and exercising their free speech rights.


      And I think in the end, and I was someone not in favor of deploying the military. Again, I don't blame the administration for saying they had the authority after we saw last -- not this last weekend but the weekend before, the wide scale rioting and looting, particularly in places like New York City, where it seemed like the political authorities in that city did not call enough police and did not give police orders to try to stop the looting. So a lot of accounts coming out and video of people destroying stores and looting with police officers standing nearby.


      So I could see why they should, they've -- but I think that, to me anyway, it seemed to me, the circumstances didn't justify actually sending troops in and I think like state governors and local mayors decide what policies are best for their own communities. And if they make mistakes, then they should be held accountable.


      I was thinking about Minneapolis. Minneapolis does something, to me, that seems completely irrational, which is to disband their own police force. And the people of that city are going to suffer higher crime rates because of the people that they have elected and put into office. It doesn't seem to me necessarily the federal government needs to intervene there because not resources are the question there. And I think that may be a good point to end this.


      The federal role, to me, is more appropriate when some kind of disorder just gets so out of control that it just goes beyond the resources that you have to handle it. And it seems to me some of the things going on here actually are the deliberate choices of city councils or mayors, not to try to stop some of the excesses that occurred in the last week. And that's more a choice of those people to have those governments and elect those people to office rather than something that, seems to me, the federal government has to intervene and stop.


John G. Malcolm:  I certainly think you're right on the accountability point, which is that the President also risks if he federalizes this and he brings in troops, that if things go badly, as they very well might if our city streets are turned into, basically, a battlefield, that the blame for that will fall on his shoulders.


      Obviously, people try to blame the President for everything that happens at the moment and for fermenting race problems, that's what he's accused of, all those sorts of things. But you are right. At the moment, the response is coming from city and state officials. And if they do a good job, they'll get the credit for it, and if they don't, they may very well get the blame. But if the President does intervene, makes it easier to pass the buck to him once more.


Prof. John C. Yoo:  Dean, I think we're at the 30-minute mark. Do you want to invite questions and comments? And I think John and I have both said our piece.


Dean Reuter:  Very good. Let's check in with our first caller. Looks like we're headed to area code 857. Go ahead, caller.  


Annie St. Hilaire (sp):  Hi, this is Annie St. Hilaire calling. The last time I spoke with you guys, I was still completing my undergrad. But since then, I've graduated, and I'm so happy.


John G. Malcolm:  Congratulations.


Prof. John C. Yoo:  Congratulations.


Annie St. Hilaire:  Thank you so much. And I can't understand for the life of me what the Black Lives movement, what its goal is aside from destruction. Because if the founders of Black Lives Matter actually believed that black lives matter, they wouldn't be trying to seek the approval of other races. And I just feel like there's just so much strife, disorganization, and my question is what authority does President Trump really have to dismantle it?


John G. Malcolm:  Well, he doesn’t have authority to dismantle them. And I want to separate out Antifa from Black Lives Matters.


Annie St. Hilaire:  Okay.


John G. Malcolm:  So Antifa, so far as I can tell, is an organization --


Annie St. Hilaire:  Is a terrorist organization.


John G. Malcolm:  Well, it's an organization that is devoted to destruction and sowing chaos. There are people on the right who want to start a race war, and Antifa on the left certainly wants to start a race war too.


Annie St. Hilaire:  Exactly.


John G. Malcolm:  And they've been declared now a -- that's one thing the President did is he declared them a domestic terrorist organization. I'm not actually sure -- it has an impact in one way and, in another way, it doesn’t. Usually, terrorist organizations are international. You have ISIS, Taliban, Al Qaeda, etc. It's not really a label that you use for domestic organizations.


      There are no federal statutes. The mere labeling of the organization does not bring into play additional statutes that otherwise wouldn't exist, but it does have one very important purpose which is it does activate 56 anti-terrorism task forces around the country. And that's an awful lot of resources coordinating with each other trying to find the leadership of an organization and their funders and take them out.


      Now Black Lives Matters movement, you can like them, dislike them, but they are protesting what they believe as systemic racial injustices in our criminal justice system and probably society at large.


      I don't know quite why they have now latched onto this defund movement. The argument that they're going to make is that they will defund it, they will completely reorganize these police forces, and the money would somehow be better spent building up capacity of people in neighborhoods that they believe have been neglected for a long time.


      So there's a difference between defunding and dismantling. Not quite sure where Black Lives Matters is on this other than the fact that the leadership has clearly latched onto the defund aspect of it. But with all this noise and cloud going on in the current situation, it's difficult to know who is saying what and with what authority they are speaking.


Prof. John C. Yoo:  I think I have basically the same view as John. Black Lives Matter, I would just try to say as strongly as possible, is a legitimate group that is exercising its free speech rights and neither the state, local, or federal governments has any right to interfere with them. They have the right to regulate the time, place, and manner of protests.


John G. Malcolm:  Right.


Prof. John C. Yoo:  But that's about it. It seems to me the more serious problem are not the 99.9 percent of people I think who are peacefully protesting but the people who are trying to take advantage of the peaceful protests to engage in violent activity. And John really puts his finger on it in one sense and that domestic terrorism is difficult to attack.


We don't have special laws, really, for -- and the more important thing is -- and this is something that's come up before. He and I both worked on the response to 9/11. This has also come up in other contexts in the '60s, is there's legitimate free speech activity and political assembly activity. How do you separate that out from the people who might belong to a group that are committing violence?


      And so generally, we tend to favor the First Amendment free speech side of it. And so the hard thing is how do you separate out and pursue the people who are organizing. Some of them may probably cross state boundaries to try to escalate the protests. We have seen shooting and attacks on police officers.


      You read accounts of coordination of the stones and rocks and bricks at different protests to try to get different people to throw them at police. Maybe there is greater coordination and communication across state lines.


      The one thing I want to throw out there is I don't know whether this is really something that requires any kind of triggering of any special authorities like the Insurrection Act, for example. I think the Insurrection Act makes sense when you’ve got, again, some kind rioting and looting that just goes beyond the ability of state and local law enforcement resources to respond to.


      This kind of thing that I think John is talking about, Antifa people try to take advantage and high jack movements or hide behind them to commit violence. I think the FBI and other federal law enforcement already have the tools to try to go after them. It's not easy work, but that's what the FBI and the Civil Rights Division are there for and I think that's what -- I don't think that any great reworking of federalism and our principles are necessary to go after them.


John G. Malcolm:  Yeah. And there are a couple federal statutes that would specifically apply to the situation regardless of whether the defamation is there.


Prof. John C. Yoo:  Oh, yeah.


John G. Malcolm:  So anybody who crosses interstate lines or uses an interstate facility, so it can be your cell phone, for the purpose of inciting a riot, that's a federal offense. And then there's an anti-masking law, Ku Klux Klan --


Prof. John C. Yoo:  And the civil rights laws.


John G. Malcolm:  Right.


Prof. John C. Yoo:  Right? The civil rights laws too.


John G. Malcolm:  So there are federal criminal statutes that can apply and probably will be applied when people are prosecuted. 


Dean Reuter:  John Malcolm, you mentioned incitement to riot. I wonder if either one of you wants to talk about that and maybe define that if you can. I've heard reports, I don’t know if they're substantiated or not, about somebody dropping off pallets of bricks where protests are supposed to happen. I've seen a, what I would describe as, a very high-end website, which purports to provide protestors to -- as a business. Their business model is to provide protestors to folks trying to get a message out.


Prof. John C. Yoo:  Really?


Dean Reuter:  Yeah.


Prof. John C. Yoo:  Gosh, I wish we could export that -- I wish that was something we could export to China. 


Dean Reuter:  Well, maybe it's an international model. I don't know, I don't know, John. But any thoughts? And now, we have five questions pending so you can deal with this in as much detail as you'd like, but any thoughts on inciting to riot? What does that mean and what does it -- is it a crime to drop off a brick of pallets at a place you know there's going to be a protest?


John G. Malcolm:  Yes. And there have been other things too, like there were these two lawyers actually in New York who have now been indicted. They were throwing Molotov cocktails into a police car and apparently passing out Molotov cocktails to others.


      And a friend of mine sent me, of all things, a Craigslist posting by Antifa that said all we're interested in is mayhem and chaos, and we're looking for 1,000 people a night to go into, in this case, it was Lincoln in Omaha, Nebraska. And they were willing to pay them, I think it was $250 each to wreak havoc.


      So yeah, they can --


Prof. John C. Yoo:  Hey, they get that much? At Berkeley, people do it for free outside my office.


John G. Malcolm:  Well, that's called Spring Break. Yeah, no, I think that if you can show that it's not just a mass rally for purposes of shouting at the police and expressing your discontent, but if you're doing it to cause property damage or worse, then you've crossed the line of committing all kinds of state laws and violence and state criminal laws and also federal criminal laws.


Prof. John C. Yoo:  One thing that it does raise, which we did touch on in our opening remarks, Dean, is the interaction of these powers with the free speech clause and the First Amendment. And so there may be some questions we'll want to ask that, but just because you have the authority to call out the military, it seems to me that doesn't change the free speech analysis.


We have to respect the right of protestors to assemble and petition their government and speak freely. It's really the violence and rioting and looting that the military or enhanced police presence should be aimed at, but that's a hard thing to -- how do you do that is a hard, hard, question.


Dean Reuter:  So one of you mentioned, you've mentioned violate -- let's say, not protestors but folks who are rioters infiltrating the ranks of legitimate peaceful protestors. What's the government's responsibility to protect the protest, to protect the peaceful protest from being infiltrated by rioters? That seems to be a thorny issue, is that what you're talking about there, John Yoo, or?


Prof. John C. Yoo:  Well, I think on both parts, I think that you have to protect the protestors and people, bystanders who are also just participating and attending the protest. But, yeah, you have to also, both ways, protect them from people who want to incite violence but also figure out ways to protect the general public from violence because another group of people who are being harmed here are the law-abiding people whose businesses are being destroyed, whose cars are being destroyed, who are being attacked as some quite violently. And it's very -- you don't envy these police officials who have to make these decisions on how to make sure everyone gets protected and constitutional rights are observed at the same time.


John G. Malcolm:  Yeah, and I think that's right. And one thing I would just point out, I forgot to say it before, is that when the President called in the 82nd Airborne to be on standby in Washington that General Milley, again, current Chairman of the Joint Chiefs, sent a message to all the top military commanders around the country that just reminded every member of the armed forces that they took an oath to defend the Constitution and that includes giving the rights to Americans for freedom of speech and peaceful assembly.


      But picking out the people who infiltrate these peaceful protests, really for a cover, in order to wreak havoc, it's a tough thing to do.


Prof. John C. Yoo:  One last constitutional issue that we didn't also get to that this raises is a civilian control the military because there's also this interesting -- you've got these former generals, flag officers criticizing the President. You had those messages from the Secretary of Defense and the Chairman of the Joint Chiefs reminding the soldiers under their command about their oath to uphold the Constitution. And you wonder why did they do that?


Are they really expecting President Trump to order soldiers to violate the Constitution? And they're signaling that it would be acceptable for soldiers to refuse to obey commands from the President?


      That's a serious challenge to civilian control of the military. And I think -- my worry is that I think these generals saw this video of the Lafayette Park protest and the clearing of it, and I think they might've leapt to quickly to their conclusions to think that you're about to have the White House ordering the suppression of legitimate political speech, which I don't think has been occurring in the cities around in our country.


John G. Malcolm:  I'll tell you one thing I think they are really worried about which is being perceived as just becoming just a political arm of the President. So the military polls consistently show that the military has respect and trust of the American people to the tune of the upper 70 percent. And I think they are really concerned about the possibility that if they are deployed in ways that the public deems to be inappropriate, that they could lose that respect pretty quickly.


Prof. John C. Yoo:  I fear maybe I'm also going beyond what John is saying, that's not their job. You might be right in analyzing their incentives, but it's not the military's job to worry about whether the public approves of their use. That's the decision of the elected politicians who control the military, and they may be sometimes called upon to do things which are unpopular at the times.


John G. Malcolm:  Fair enough. That's true.


Prof. John C. Yoo:  But, yeah.


Dean Reuter:  Lots of questions piling up, so let's turn back towards the audience. Area code 610, go right ahead caller.


Caller 2:  Hi, thank you both for this talk. One of you mentioned that protestors are violating stay at home orders and that that was another matter, but I want to bring our attention back to that. And I'm wondering how does that factor into the analysis of government's responses to these protests?


Like suppose a city or even a state was to enact some sort of ordinance or law that purported to be content neutral and said due to the obvious health concerns raised by coronavirus and having these large mass gatherings of the sorts that we've seen in New York, such large protests won't be tolerated. How would you think about that? Thank you.


John G. Malcolm:  I think that the situation is so beyond that that I think if they said oh, well, we would otherwise love to have you here protesting but it's the stay at home orders that we're going to enforce, it would just be like throwing more gasoline on a fire.


      You already saw some reaction to that, actually, before all of this happened. When people started gathering to protest the stay at home orders saying it was time to open up the economy, and police officials tried to break those up because they were in fact violating the stay at home orders by gathering around state capitols. The reaction was pretty severe, so I think that just as at the moment they're not enforcing jaywalking laws, I think they are turning a blind eye to the violations of the stay at home orders.


Prof. John C. Yoo:  I'll totally take the question. 610, that's my home area code. I hope I don't know you [inaudible 41:53] high school. That's my mom's area code.


      But Pennsylvania's a good example. Pennsylvania State, that is one of the most locked down states in the country, as is California, and I do think that these stay at home orders are now being enforced in a content-discriminatory way when you have governors threatening to close down religious services, threatening to stop protests.


For example, protests are illegal on the State Capitol grounds in Sacramento, or they were a few weeks ago. But then they are allowing other kinds of protests conceivably on issues on which they tend to favor since we've seen some of these politicians, I think up in Michigan and other places, actually participating in the protests less than six feet away from people without masks on.


      And so it just, to me, highlights how arbitrary some of the distinctions that state government is engaging in when they are trying to say you can do this activity and that activity. After this, I think people who are challenging the stay at home orders are going to have a lot more success in the state courts in particular.


I think it's also going to be very difficult to expect the police officers to say we want you to go up and down a commercial street where they were just ordered not try to stop rioting and looting but then give tickets to the business people if they try to fix up their businesses by hiring construction workers and trying to reopen.


      I just think it just really put a spotlight on how -- I thought the initial, maybe, lockdowns were medically justified, but they've gone on too long and they've been too arbitrary in trying to pick and choose amongst different sectors of the economy. And the attitude towards, right, one kind of political protest being approved and another kind not being approved just shows how viewpoint discriminatory it's been.


John G. Malcolm:  I think you're absolutely correct that they are enforcing these laws not in a content neutral fashion. But I just think that is the reality of they are being swamped by the number of people in the streets. And I will be curios, you might be right that some church that is objecting to the limitations placed on their ability to gather together in congregations is going to say hey, you let the protestors out there gather, you should let us get together.


Prof. John C. Yoo:  Yeah. Look at the -- if you look at the case --


John G. Malcolm:  They might very well make that argument. Yeah, they might --


Prof. John C. Yoo:  Yeah, look at the case that the Supreme Court denied cert and they said the governor of California is allowed to keep church services closed because it's like the other things that the state has prohibited like large gatherings, like --


John G. Malcolm:  I think that's right. But I do think that if the police --


Prof. John C. Yoo:  Yeah and then you go in the administration, they have not actually been shutting down gatherings because they've just allowed large gatherings in every city in the State of California and they've not been telling the police to try to shut them down for health reasons.


John G. Malcolm:  I think that's right. But if they were to go out there right now and say you see, you're all violating stay at home orders so we're going to walk amongst you and start issuing tickets. There'll be a lot fewer peaceful protestors and a lot more active rioters, I think.


Dean Reuter:  Carry on with our callers now, area code 608, it looks like. Go ahead caller.


Caller 3:  I'm wondering if either of you would care to comment if you're familiar with the very now ancient case of Luther v. Borden from 1849. That's a case in which the -- actually, this was much more than anything we're facing now. There was a civil war between two governments that claimed to be the legitimate government of Rhode Island and it wound up in court over militia law and insurrection and everything. So what do you think of that in the current context?


Prof. John C. Yoo:  Yeah. The basic problem was the Framers made an error in allowing Rhode Island to join the Union.




Caller 3:  Well, it's actually Rhode Island and Providence, but --


Prof. John C. Yoo:  Yeah. Rhode Island originally, they didn't want to join the Union. And they were not sure they were going to let them join the Union because it was bad reputation, right? But actually, Luther, I'm glad you mentioned it. It's a really interesting question we didn't get to which is the President's invocation of the Insurrection Act, the President's invocation of calling out the militia to stop insurrections and enforce federal law.


      One question is was that judicially reviewable? And I think Luther v. Borden makes pretty clear that none of this is really judicially reviewable. So if President Trump did call -- rely on Article 1 Section 8 or relied on the Republican Guarantee Clause or relied on the Insurrection Act, if Luther v. Borden still controls, it's all a political question. And I think we saw that also in the Civil War as well with the Prize cases has language in it that's very similar to what's in Luther.


      And so it seems to me, people have been asking is there some court remedy for the use of the military. And John mentioned the Posse Comitatus Act. There are some lower court cases I think about if the military got into the situation of enforcing law rather than maintaining just stability and law and order but actually arresting people, you might get some cases like that. But you're not going to get, I think, fundamental judicial intervention because of things the President inappropriately invoked the Insurrection Act, and that's because of Luther v. Borden.


John G. Malcolm:  Yeah. I think that as I recall, Rhode Island refused to send delegates to the Constitutional Convention, and they were the last state to ratify. So that's just a problem.


Caller 3:  Oh, yeah.




Dean Reuter:  All right. Let's move away from Rhode Island, heading to 914, wherever that is. I don't know. Go ahead caller.


John Perparian (sp):  Yeah, hi. This is John Perparian from New York, New York. And I'm glad the panel brought up the situation here, that's right. If you go to church, you will be arrested. If you use the sticky finger discount on Fifth Avenue and pick up a 65-inch HDTV, no problem. You're A-okay.


      So let me just ask this question with regards to the President utilizing the Insurrection Act. Can the governor and state legislator turn it off, send it back? What are some of the leverage points that localities could use against the President?


John G. Malcolm:  Well, several. There's legal and there's political. So one of the potential problems with the President going against what the governors and local authorities want to do is that just like addressing the pandemic or a natural disaster, it really requires a great deal of coordination and cooperation to get anything done.


      The Insurrection Act, if the President -- the President is one, required to give warning ahead of time before he deploys troops and also he has to get the permission of the state legislature, and if they can't meet, the governor. But as I said under the Ku Klux Klan Act, if he said there's a complete breakdown of authority and laws and the equal protection of laws are not being enforced, he could do that on his own.


      And you saw that playout here, actually, in Washington D.C., although, the President's got a lot more authority in the district than he does in any of the states in that, as I said, he called in the 82nd Airborne, and they were hanging out in hotels waiting to be actually deployed.


And the Mayor, Muriel Bowser, got into big fights and is still getting into big fights with the President to the point that she has renamed the street in front of the White House Black Lives Matter Street and painted a huge mural of Black Lives Matters right in front of the White House. And she also tried to evict the troops who were in local hotels saying that there wasn't enough money to pay for their hotel rooms.


So all of those -- that kind of resistance actually went on here in D.C. It hasn't gone on in the States and whether it would or not would depend on what authorities the President would invoke. But it would be very difficult, I think, in the absence of at least some tacit of acknowledgment that the President should do this to get anything done because they would just be at odds and not coordinating with each other.


Prof. John C. Yoo:  I agree. And it's important to remember there's two different bases for federal intervention. One is insurrection, and there, I think, you don't state cooperation because the insurrection could be by the state government, as we saw in the civil war or in the civil rights movement era.


      But when it's enforcing law, the other basis, there, I totally agree with John. You need to have state and local cooperation because it's not like the military's going to go into New York City and know where to go. How are they going to detect what the hot spots are? How are they -- they really need that kind of cooperation from state and local officials.


      You know what's also a very interesting question is how does it end or wrap up? And if you look at it, it doesn’t -- the statutes and the provisions don't have sunset provisions and then they don't have clauses, excuse me, about how you bring it to end. And so there really has to be a political decision. And you could -- it's a good question.


You could see situations where one side or the other wants to end federal intervention earlier rather than later. But from what I -- looking at it and combining with the last question about Luther v. Borden in no judicial intervention, it seems to me that once the act is triggered, once the troops are sent, it's really going to be up to the federal government when to pull them out.


      Now, the last thing I'll just point out that John also mentioned is questions of accountability. You would think the federal government doesn't want to overstay its welcome. The longer it stays, the more responsible it's going to be for the outcomes.


And you could say maybe state and local don't want them there too long either because as we've seen in other emergencies and other crises, the longer you have federal authorities around, the weaker it makes -- and a little bit more incompetent it makes local and state officials work. And they are the ones who are most immediately accountable for what happens on the ground.


      So I think our federal system really does encourage state and local take the primary responsibility and then the federal government play more of a supporting role.


Dean Reuter:  Got about five minutes left, two questions pending. So hopefully, we'll get to both of them. Go right ahead caller.


Caller 5:  Yes. I'd like to return to the Lafayette Park incident briefly. Attorney General Barr, at a press conference last week and then over the weekend in an interview on, I think, Face the Nation, said that the press reporting about the events surrounding Monday of last week and the clearing of the rioters is very misleading. He mentioned injuries to park police on Sunday as justifying the decision to move the rioters at least one more block and establish a different perimeter.


He said that the decision was taken at 2:00 pm, that he gave the order. I mean, the decision was taken on Sunday, he gave the order at 2:00 pm on Monday at a time when he wasn't even aware that the President was going to go to St. Johns. Yet, earlier in the webinar, ya'll seemed to adopt the version of events that has been promoted by media outlets. And I was wondering if ya'll have any independent or first-hand knowledge of the events at Lafayette Park to weigh in on which account is the more reliable.


John G. Malcolm:  So you are very correct --


Prof. John C. Yoo:  John, you live in Washington. So you might have had first hand.


John G. Malcolm:  Well, I wasn't down in Lafayette Square at the time. You are correct, of course, that there are all kinds of competing narratives out there. Some people said that tear gas was used on the protestors, and others said oh no, these were just smoke grenades. There was no tear gas used. And I think that Bill Barr said look, I don't have the authority to order anybody to do anything. It's just when I came there and I found out that they had issued an order to clear out the perimeter, that he basically said do it quickly.


      So I agree with you that there's a lot of narratives involved, but the two things that I would say was that -- and there's no question. Lots of law enforcement officers and secret service agents guarding the White House have been severely injured. So not all of these protests are peaceful by any stretch of the imagination, and I acknowledge that.


      So the three things I would say is that one, at that particular moment, when they were pushing the protestors back, you could just see the images on the screen, it did not appear as if anybody was attacking the officers in question. Doesn't mean that that didn't happen beforehand. As I said, St. John, someone tried to torch just the night before.


      Second, that there was a military helicopter that was around that was sort of viewed as perhaps being an overreaction. And then there's this third, whether you like it or don't like it, the President did not have to go. He didn't have to be in the Rose Garden. He didn't have to go into Lafayette Square to go to St. Johns Church. So the question is whether or not he exercised good judgment.


      But you're right. There are competing narratives, and there was an awful lot going on in the grounds and what was happening depends to a very large degree on who you're listening to and who you happen to believe. And I certainly was not there and don't purport to know exactly what happened.


Prof. John C. Yoo:  I wasn't there either, but all I can go on, like most people I think in the country, is what we saw in the videos. And, again, this is not a question of law. It's more a matter of prudence and good judgment.


      It seems to me just a way to handle these kinds of crowds is not to engage in aggressive police tactics when most people are engaging in their political free speech. Not saying everybody was, but I just think the wiser course is to let them have their protests, and when things quiet down, then if you want to push the perimeter out, you should rather than being rather aggressive with it using rubber bullets or shields or tear gas.


      But, again, that's a question of judgment for the people on the ground. I would not have done it that way. I might as well -- I think that parts of Washington are unique. I think that John also, besides that, it's a good point, parts of Washington are unique both in their need to be protected but also in the tradition of spaces for political protests to go on. And so it's important to think about which is would you agree with what happened if the people who were protesting were protesting for something politically an exact opposite side.


What if those had been protestors against lockdowns or protestors against, I don’t know, Obamacare or something like that. I don’t' think we want to try to use those kinds of tactics when people are engaged in political speech, even if there are people in the margins who are trying to hide behind it or hijack it or engage in violence for their own ends.


John G. Malcolm:  I guess the only thing I would just say is that there are certain national monuments and historical treasures in Washington D.C. that are also deserving of protection. And certainly, St. John's Church, Dolley Madison house right around the corner from that fit into that category. So the need to make sure it is not in fact torched was also very important. Whether the President should've done his photo op or not in light of the fact that someone did try to torch the church, that is a matter of judgment.


Dean Reuter:  Well, gentlemen, I'm afraid we're going to have to leave it there even though we have questions on the board remaining. Apparently, we have not solved this issue of executive power, so we'll return to this in a future installment of this series.


But I want to thank you both, John Malcolm, John Yoo, for showing up again on this series. I want to thank the audience as well for dialing in, for your thoughtful questions. Reminder to check your emails and follow The Federalist Society's website for our next scheduled Teleforum Conference call. But until that next call, we are adjourned. Thank you very much, everyone.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at