Members of the West Virginia National Guard are seen at the Lincoln Memorial in Washington. Photo / Craig Hudson, The Washington Post
In the US, the Attorney-General of the federal district of DC has sued President Donald Trump and his administration over the deployment of the National Guard in the nation’s capital, describing it as an illegal “military occupation” that has turned domestic troops into local police.
The lawsuit is the second one that Brian Schwalb has filed against Trump since the President declared a “crime emergency” in DC on August 11 and asserted control over city police while deploying military troops on to city streets. Schwalb is seeking to force the administration to withdraw the National Guard from the city and enjoin it from pursuing similar actions in the nation’s capital.
Unlike state governors, the DC mayor does not have control over the DC National Guard – the President is its commander in chief. But Schwalb’s lawsuit argues that the president has exceeded his authority and that the troops are illegally being used for law enforcement activities. Nearly 2300 members of the National Guard were stationed in DC as of Tuesday, including 1340 from seven states that are controlled by Republican governors, according to a joint National Guard task force that provides daily updates on the troops’ activities in the city.
Schwalb’s lawsuit will again put the District up against the Trump administration in federal court during an unprecedented home rule crisis.
Trump’s deployment of the National Guard has been one of the most visible aspects of his crackdown in the nation’s capital, in which he also sought to take control of the DC police department and has sent hundreds of federal officers on to city streets to arrest undocumented immigrants, seize illegal guns and evict homeless people from encampments. It comes as Trump has threatened to or has sent in the National Guard to other cities – including in California, where the troop deployment is also facing a legal challenge.
Schwalb argues that the armed troops’ presence has been “harmful” to the city and its residents and that the involuntary nature of their deployment infringes on the District’s limited autonomy.
“Deploying the National Guard to engage in law enforcement is not only unnecessary and unwanted, but it is also dangerous and harmful to the District and its residents,” Schwalb, a Democrat, said in a statement. “No American city should have the US military – particularly out-of-state military who are not accountable to the residents and untrained in local law enforcement – policing its streets. It’s DC today but could be any other city tomorrow. We’ve filed this action to put an end to this illegal federal overreach.”
A spokesperson for Pete Hegseth, who as Defence Secretary oversees troops in Washington and is party to the lawsuit, referred queries to the White House. Abigail Jackson, a spokeswoman for the White House, said in response to the lawsuit that Trump was fully within his authority to deploy the troops to DC to protect federal assets and “assist law enforcement with specific tasks”.
“This lawsuit is nothing more than another attempt – at the detriment of DC residents and visitors – to undermine the President’s highly successful operations to stop violent crime in DC,” Jackson said in a statement.
The DC lawsuit was filed two days after a federal judge ruled that the Trump administration illegally used National Guard troops deployed in California this summer during protests against immigration raids in the Los Angeles area. In that ruling, US District Judge Charles R. Breyer said Trump administration officials “wilfully” violated the Posse Comitatus Act, which prohibits the military from domestic law enforcement actions.
Troops deployed in the Los Angeles area were “expressly instructed that” they could carry out law enforcement actions including crowd control and setting up perimeters, which was incorrect, Breyer wrote. Breyer blocked troops in California from doing anything “to execute the laws”, though he paused his decision until next week to give the Trump administration time to appeal. The judge also said his order applied only to troops in California, rather than nationwide. The Trump administration has denounced Breyer’s ruling, with the President calling him “a radical left judge,” and it is appealing the decision.
But because of DC’s unique status, the Los Angeles case is not directly comparable, and the vast power that the federal Government retains over the District – including over the deployment of the city’s National Guard – could make the legal challenge an uphill battle.
Schwalb, who announced on Wednesday that he is seeking reelection, has had some success against the Trump administration before. He emerged from federal court with a partial win after challenging the administration’s attempt to install a Trump appointee as the new DC police chief, which would have granted him full powers to write department policy, including on immigration enforcement. US District Judge Ana C. Reyes, who was appointed to the DC federal bench by President Joe Biden, kept DC Police Chief Pamela A. Smith in charge after a hearing, though she has yet to formally rule.
In this case, Schwalb is once again seeking to ask a judge to set guardrails on Trump’s authority to deploy the DC Guard, though it’s unclear whether he’ll have DC Mayor Muriel E. Bowser in his corner. Bowser supported Schwalb’s first legal challenge and had appeared with him in court.
At a news conference on Thursday, the mayor stopped short of saying whether she supported Schwalb’s latest lawsuit.
“This has been a legal question throughout the emergency - not just today,” she said. “My 100 percent focus is on exiting the emergency, and that’s where all our energies are.”
She referred further questions to the attorney general’s office.
Bowser has frequently criticised the National Guard deployment, particularly from other states, saying on social media on August 16 that “American soldiers and airmen policing American citizens on American soil is #UnAmerican.” The mayor has also said she views the troops’ current deployment as off-mission and unnecessary.
But she has also sounded notes of co-operation with the Trump administration, pursuing a strategic partnership in which the city can use the influx of federal resources to its advantage in a situation in which it has little leverage.
Bowser has framed her approach as protecting home rule. On Tuesday, she issued an executive order that would stand up a “safe and beautiful” emergency operations centre – mirroring Trump’s catchphrase – to co-ordinate with federal law enforcement beyond Trump’s 30-day presidential emergency, which is set to expire next week.
Her order concluded by noting that the emergency operations centre would “continue to prioritise DC National Guard for typical mission-focused activities”.
The Trump administration is expected to approve an extension of the National Guard’s deployment in DC through December.
The troops often have been seen patrolling the National Mall and at Metro stations, where they have occasionally helped people in medical distress, flagged down DC police to respond to alleged public safety threats and in at least one case intervened themselves by temporarily detaining someone, task force updates said.
They also have been charged with beautification projects on federal property, and the task force has said that they have cleaned more than three miles of roads, collected more than 677 bags of trash and disposed of five truckloads of plant waste.
But they have been deputised by the US Marshals Service, which enforces federal law, and have been authorised to engage in armed “presence patrols” across the city – the kinds of law enforcement activities Schwalb argues violates the Posse Comitatus Act, a federal law that broadly prohibits use of the federal military for domestic law enforcement purposes.
The case largely rests on an open legal question about whether the DC National Guard is considered a state militia – like state National Guards – or is inherently federal because it is under federal command. Posse Comitatus applies only to federalised forces. Schwalb argues that because the President controls the DC Guard – and even other states’ militias sent to DC are under a federal command structure – the National Guard here is inherently federalised and subject to Posse Comitatus.
The question has been debated before. But it has never been settled in courts, in part because no President has ever gone to the lengths Trump has to deploy the National Guard as part of a general law enforcement crackdown, adding urgency to the question now, said Elizabeth Goitein, senior director of the liberty and national security programme at the Brennan Centre for Justice.
Though cases are limited, the National Guard has been deployed in DC before under narrower purposes. In 1989, President George H.W. Bush deployed the troops to aid DC police in limited administrative roles during the height of the crack epidemic. The Justice Department at the time issued an opinion arguing that the use of troops to help with drug enforcement, as a state militia, did not violate the Posse Comitatus Act and said that the President also had inherent constitutional authority to use the forces under his command to carry out the nation’s laws.
Goitein said that, given the Justice Department’s long-standing theory that the DC National Guard was exempt from the Posse Comitatus Act, Schwalb’s challenge could set an important legal precedent depending on how a judge rules. Even though DC’s status is unique, that does not give the president unlimited authority, she said.
“I think that it’s extremely important,” she said of the legal question raised in the case, “because under the Department of Justice’s interpretation, a president could just use the DC National Guard as his own personal police force, and that raises all of the dangers that the founders were concerned about when they established a standing army”.
Schwalb has taken particular aim at how the troops from the seven other states – Louisiana, Ohio, West Virginia, Mississippi, Tennessee, South Dakota and South Carolina – have been deployed. He cites an interstate compact that lays out a process for states to accept assistance from other states’ National Guards during emergencies - a law that treats DC as a state – and argues that, akin to governors receiving troops from out of state, the mayor should have been consulted before hundreds were brought into the District without her consent.
Schwalb also argues various violations of the Administrative Procedure Act, such as the troops from out of state have been integrated under a federal command structure.
“The forced military occupation of the District of Columbia violates our local autonomy and basic freedoms,” Schwalb said on X. “It must end.”
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