A three-day bench trial will begin Monday over whether President Trump’s National Guard deployment to Los Angeles violated a general prohibition on using federal troops as civilian law enforcement.
U.S. District Judge Charles Breyer will hear testimony from three military and immigration officials as the judge weighs whether sending in troops to combat immigration protests violated the Posse Comitatus Act.
It marks a major legal confrontation between Trump and California Gov. Gavin Newsom (D), who has condemned the deployment as political theater and broadly framed himself as the face of resistance against the president’s agenda.
Only 300 of the nearly 5,000 guardsmen sent to Los Angeles in June remain, but the trial is moving ahead as Newsom urges Trump to send the remaining troops home. Marines were also deployed but were released last month.
“It reinforces the litigation strategy,” Newsom told reporters last week.
“Those things are not coincidental,” the governor continued. “Had we not positioned ourselves, had we not postured with that litigation approach, we would not be in this position with that withdrawal.”
Trial to focus on troops’ operations
Newsom sued Trump in June as he federalized the California National Guard to combat immigration protests in Los Angeles that sometimes turned violent.
The California Democrat has emerged unsuccessful so far.
Breyer ruled Trump illegally federalized the National Guard and ordered he hand back control to Newsom, but the 9th U.S. Circuit Court of Appeals quickly lifted the ruling until it resolves the administration’s appeal. That decision is likely still months away.
As the appeal over Trump’s authority proceeds, it does not address what activities the guardsmen may engage in while on the ground.
That’s the subject of this week’s trial.
Newsom asserts the deployment violates the Posse Comitatus Act, an 1878 federal law that generally bars federal troops from participating in civilian law enforcement.
Some of the troops have been stationed at several federal buildings in downtown Los Angeles, which is not at issue. But the state has taken aim at troops who’ve went elsewhere to accompany immigration agents, including during a violent raid at a cannabis farm last month that left one dead.
The administration argues the Posse Comitatus Act provides no pathway for California to sue. Even if it did, the administration contends the law is superseded by another statute it argues expressly authorizes the guardsmen’s efforts.
“Accompanying federal law enforcement officials for their protection as those officials enforce federal immigration laws does not mean that the troops are themselves engaging in law enforcement,” the administration wrote in court filings.
But California warned that the position would give Trump unchecked power.
“It simply is not the law that Defendants may deploy standing armies to the streets of California while California is powerless to do anything about that clear violation of the most fundamental principles of our Nation’s founding,” California wrote in court filings last week.
ICE, military officials to testify
The parties are expected to summon a total of three witnesses, court records show.
Newsom plans to call Ernesto Santacruz, who leads Immigrations and Customs Enforcement’s (ICE) Los Angeles field office.
The state also intends to call William Harrington and Major General Scott Sherman, leaders of an Army task force that has tactical control over the deployed federalized guardsmen.
The Trump administration also will call Sherman but did not list any other witness.
The parties estimated the combined testimony will last upwards of eight hours, not including cross examination.
Breyer has indicated he expects the witnesses to conclude by Tuesday. Then, the judge will then hear legal arguments from both sides.
The Justice Department insists the trial is unnecessary. It asked Breyer to forego the proceedings and immediately toss Newsom’s claims, but the judge declined to do so.
“Next week’s trial is not cancelled. The Court expects to hear evidence beginning on Monday,” Breyer ruled last week.
Among first trials challenging Trump policies
This week’s proceeding is one of the first full-fledged trials challenging one of Trump’s actions since returning to the White House.
His administration faces more than 300 lawsuits challenging major policies in total. But most plaintiffs have pressed their claims in truncated, emergency proceedings. Several judges have converted those emergency rulings into final judgments, sending the case to the appeals courts without going through an actual trial.
Breyer’s trial follows two others held this summer.
Last month, a Boston-based federal judge conducted a bench trial challenging the Trump administration’s arrests of pro-Palestinian activists on college campuses. He has not yet ruled.
The same judge in June held a bench trial on Democratic states and health groups’ bid to reinstate nearly $800 million in health grants the administration cancelled over links to diversity, equity and inclusion initiatives.
The judge ruled for the plaintiffs, and the Justice Department has filed an emergency appeal at the Supreme Court, which could rule at any time.
This week’s trial will unfold in Breyer’s courtroom in San Francisco. The Justice Department has criticized California for filing its lawsuit there “hundreds of miles from the scene.”
Breyer was appointed by former President Clinton and is the younger brother of retired Supreme Court Justice Stephen Breyer.
The trial marks a major moment for California Attorney General Rob Bonta’s (D) office, which is suing alongside Newsom.
Bonta has taken pride in the barrage of litigation he has brought against Trump. Last week, Bonta touted that he is a plaintiff in 37 lawsuits against the administration and has restored over $168 billion in funding to California.
“The moment the Trump administration stops breaking the law and violating the Constitution, we’ll stop suing. Simple,” Bonta told reporters last week.
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