CNN
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President Donald Trump and Stephen Miller, the architect of his immigration crackdown, have repeatedly used the word “insurrection” to describe the protests in Los Angeles, hinting they might invoke a rarely-used law by that name to dramatically escalate US military intervention on city streets.
But behind the scenes, administration lawyers have been working to craft a much less confrontational way of protecting the federal government’s ability to carry out immigration enforcement, hoping to avoid further inflaming the situation, according to multiple people briefed on the discussions.
At issue is the Insurrection Act, which permits the president to use military forces to end an insurrection or rebellion on US soil.
On Monday, the administration mobilized more than 700 Marines based out of the Marine Corps Air Ground Combat Center to join the thousands of National Guard troops Trump activated over the weekend. But they were deployed under a different legal authority and so far, most of those troops have worked to protect federal buildings, not put down civil unrest on city streets. Invoking the Insurrection Act would allow them to expand their mission.
Trump has taken part in conversations surrounding the act, according to two sources familiar with the matter, but has not made a final decision on what to do.
One administration official said those involved had effectively decided not to use the act – but the lawsuit announced by California Monday challenging the move to federalize National Guard members may change their calculus. Now, that official and others said, the administration is going to weigh what happens on the ground in LA Monday night and over the next few days – and could still invoke the act if necessary.
A Justice Department spokesperson declined to comment.
Trump’s top advisers have been watching closely. Over the course of the day Monday, Homeland Security and Pentagon officials provided regular updates on the situation in Los Angeles to the Situation Room, where Miller presided.
The message from Miller was clear: the administration wasn’t backing down in LA, and they wouldn’t “give up” the city, according to a source familiar with the discussions. On Monday, Miller posted on X, “This is an organized insurrection against the laws and sovereignty of the United States.”
Homeland Security assets, like US Customs and Border Protection resources and personnel, are expected to remain in the city for the foreseeable future as Immigration and Customs Enforcement continues to carry out immigration enforcement operations.
Speaking to reporters Monday, Trump said of the protests: “I wouldn’t call it quite an insurrection, but it could have led to an insurrection. I mean that was a serious, that was a lot of, that was a lot of harm that was going on last night. I watched it very closely, and it was amazing the job that the National Guard did.”
Hours earlier, Trump said of the demonstrators, “They’re insurrectionists. They’re bad people, they should be in jail.”
Attorney General Pam Bondi has been actively involved in crafting the administration’s response. The White House Counsel’s office coordinated with the Justice Department’s Office of Legal Counsel and Deputy Attorney General Todd Blanche’s office to help outline the legal strategy for the president’s weekend memorandum that authorized the deployment of National Guard troops under federal authority. That was done over the objections of California Gov. Gavin Newsom, the sources said.
The president’s order in LA relies on what is known as Title 10 powers. In the Justice Department’s view, those powers allow the president to use the military to intervene when enforcement of federal law is being impeded.
Trump confronted a similar debate during his first administration, when he and Miller similarly pushed for a heavy-handed use of troops to quell riots in Washington and Portland, Ore., in the wake of the police killing of George Floyd.
In 2020, Attorney General Bill Barr rejected a heavier federal response and sent in US Marshals and other civilian law enforcement to protect the federal courthouse, which was under siege from nightly violent protests.
In Washington, D.C., the federal government used National Guard military police from other states, under authorization of governors in those states, in Washington, D.C., to help federal law enforcement restore order.
Asked in September 2020 about using the National Guard, he suggested he could not intervene in racial justice demonstrations without a request from state authorities.
“Look, we have laws. We have to go by the laws,” Trump said at an ABC News town hall: “We can’t call in the National Guard unless we’re requested by a governor.”
CNN’s Samantha Waldenberg contributed to this report.
