One of the more alarming moments in President Trump’s angry call for law and order earlier this week in response to widespread protests over the death of George Floyd was this passage, which came after a demand that state and local authorities deploy enough force to “dominate” protesters:
If the city or state refuses to take the actions that are necessary to defend the life and property of their residence, then I will deploy the United States military and quickly solve the problem for them.
This was clearly a reference to the rare presidential option of invoking the Insurrection Act, the sole circumstance in which U.S. armed forces personnel can be deployed domestically in a law enforcement capacity (as opposed to the National Guard, which either governors or the president can send in, though under different rules). Trump had hinted at this in a call with governors earlier on Monday, in which he sounded (according to one participant) “unhinged.” Arkansas Republican senator Tom Cotton, always eager to bust heads and jail people, was publicly urging Trump to take this step, and White House press secretary Kayleigh McEnany told reporters it was “one of the tools” at his disposal.
So the announcement that Defense Secretary Mark Esper, overseer of the military units that would be involved in an Insurrection Act deployment, opposes such an action was jarring. The Hill reports:
Defense Secretary Mark Esper said Wednesday he does not support invoking a law that would allow President Trump to use the U.S. military for domestic law enforcement amid nationwide protests surrounding the death of George Floyd….
“I’ve always believed and continue to believe that the National Guard is best suited for performing domestic support to civil authorities in these situations in support of local law enforcement,” Esper said at a news conference Wednesday.
“I say this not only as secretary of Defense, but also as a former soldier and a former member of the National Guard, the option to use active duty forces in a law enforcement role should only be used as a matter of last resort and only in the most urgent and dire of situations,” he added. “We are not in one of those situations now. I do not support invoking the Insurrection Act.”
Was this one of those walk-backs of presidential remarks that Trump’s minions are often called upon to perform, or a sign of chaos, or even insubordination? The initial signs do not indicate business as usual.
Esper is likely under significant pressure from military leaders to restrain the president on this issue; many are deeply uncomfortable with the idea of troops being deployed domestically. That unease was reflected in a most unusual article in The Atlantic this week by retired admiral Mike Mullen, who was chairman of the Joint Chiefs of Staff in the Bush and Obama administrations:
I remain confident in the professionalism of our men and women in uniform. They will serve with skill and with compassion. They will obey lawful orders. But I am less confident in the soundness of the orders they will be given by this commander in chief….
Furthermore, I am deeply worried that as they execute their orders, the members of our military will be co-opted for political purposes.
Even in the midst of the carnage we are witnessing, we must endeavor to see American cities and towns as our homes and our neighborhoods. They are not “battle spaces” to be dominated, and must never become so.
The Insurrection Act was last invoked by George H.W. Bush during the Rodney King protests in Los Angeles in 1992, but only in that one place and only at the request of then-Governor Pete Wilson. It was invoked by Presidents Eisenhower and Kennedy to enforce desegregation orders in the Deep South, but on the explicit grounds that state and local elected officials and law enforcement agencies refused to do so. It’s an extraordinary act, as indicated by its very name, and if Trump persists in talking about it or actually using it, he will have to address suspicions that the main emergency he is concerned about is his reelection in November.