Federal Intervention in D.C. News Round-up

Today, I will provide a compilation of recent news stories involving the federal intervention in D.C.

What are the National Guard personnel in D.C. missing while deployed here?

It is important to remember that most of the members of the various National Guard units deployed to D.C. have other jobs back home that they have had to leave. Last week, charges were filed against an individual who had been detained by National Guardsmen after being involved in a fight on a Metro train. Two National Guardsmen were named in the complaint, and Reuters took the opportunity to learn more about those being deployed to the District from elsewhere. One is a police officer in Jackson, Mississippi. According to reporter Brad Heath, last year, Jackson had a murder rate about three times higher than D.C.'s. Its police staffing per capita is less than half of D.C.'s. While D.C. residents are likely thankful that the Guardsman was available to break up a fight in D.C., his own city is likely much more in need of his services.

More evidence of the harm being done to D.C. restaurants

Axios has a story today about D.C. restaurants facing a slump due to the federal intervention. During his recent press availability, cult leader, convicted felon, and failed President Donald Trump claimed that D.C.'s restaurant business was booming. Just as was the case with just about everything else he said about D.C. that day, this was a lie. Axios reports that several restaurant employees, even those with work permits, have been detained. This has frightened away both legal and undocumented employees and left a number of restaurants understaffed. As a result, some restaurants have shortened menus and are running kitchens on ghost crews. One restaurant is having the owners, who haven't cooked professionally in years, help out in emergencies. In addition, sales are way down as customers also stay away. One restaurant mentioned in the article is seeing sales that are 40-50% lower than the same time last year. Another restauranteur was quoted as saying, "It reminds me of COVID — I'm weeks away from going to landlords because I can't pay rent." Some sources mentioned in the article are afraid that some restaurants will not renew leases or even consider D.C.

Eleanor Holmes Norton's plans for reelection

Another Axios report, this one from yesterday, quoted D.C.'s Delegate to Congress, Eleanor Holmes Norton, again saying that she plans to run for reelection. Norton has said this several times in the past, only to have staff walk it back later. This time, a spokesperson for Norton simply said, "We don't have anything to add." As I wrote last week, Norton has been almost invisible during the federal intervention. At 88 years old, she is nothing like the fighter that she once was. Norton did appear at one recent press conference with Mayor Muriel Bowser, but this did nothing to change perceptions that it is time for her to pass the torch. Norton had to be led to the microphone by a staff member, read a prepared statement so quietly that it was almost impossible to hear her, and then had to be led away again. She was taken directly to her car and did not stay for the rest of the event.

National Guard deployment extended while federal control of MPD to end

There were a couple of developments concerning the federal involvement with law enforcement in D.C. On the one hand, Secretary of the Army Dan Driscoll extended the deployment of the D.C. National Guard until November 30. On the other hand, Politico reports that sources confirmed that House of Representatives leaders don't plan to vote to extend the takeover by Trump of the Metropolitan Police Force. The emergency declared by Trump allowed him to take over the D.C. police for 30 days, after which Congress must approve any extension. The 30 days end on September 10. While an extension could likely pass the House, Senate Democrats would likely filibuster it. As such, it is not that big of a surprise that the House will not pursue such a measure. House Speaker Mike Johnson also said that recent commitments by Bowser to continue cooperation with federal law enforcement resolved most of the issues.

Stephen Miller is the shadow mayor of D.C.

The Washington Post published an article today headlined, "How Stephen Miller is running Trump’s effort to take over D.C." which documents the involvement of the White House Deputy Chief of Staff Stephen Miller in the federal intervention. The article describes Miller as "a key enforcer of the D.C. operation". According to the article, Miller has regular meetings with top D.C. officials including "City Administrator Kevin Donahue, Deputy Mayor of Public Safety and Justice Lindsey Appiah and the D.C. police department’s executive assistant chief Jeffrey Carrol". The article sheds some light on Miller's thinking, saying:

Miller and others close to Trump have celebrated the changes in Washington, which they see as a winning political issue and central to their plans to host a series of events for America’s 250th birthday next year. White House officials expect the increased federal law enforcement presence to continue in the District through the end of 2026 — a period that would not only come after the semiquincentennial celebrations but also the midterm elections. D.C. officials have not publicly committed to that timeline.

Federal prosecutors continue to struggle

WUSA9, has a report about two more individuals that former Fox News television judge and current U.S. Attorney for the District of Columbia, Jeanine Pirro's prosecutors failed to indict. I want to again reiterate how uncommon it is for grand juries not to indict those brought before them. Pirro has had an unprecedented series of failures. The two cases disclosed by WUSA9 bring the total to nine by my count. In the past, Pirro's office has either tried again before grand juries — failing an astonishing three times in one case — or resorted to misdemeanor charges that do not require an indictment.

However, in these two cases, the defendants are now arguing that they should not be charged in federal court at all. Both were accused of assaulting MPD police officers. However, the federal charge requires that the assault be on a federal officer. Prosecutors have argued that since Trump took control of the MPD, MPD officers are acting in federal capacities. Lawyers for the defendants disagree. As one of the lawyers said:

The defect in Mr. Wilson’s Information could not be more apparent: He is charged with assaulting a federal officer, but MPD Officer Bell is not a federal officer and the complaint does not establish that he was assisting a federal officer in the performance of his official duties as required to for a violation of 18 U.S.C. § 111(a)(1). To the contrary, the complaint alleges that federal officers were patrolling with MPD officers to assist with local law enforcement efforts and encountered ‘a crowd’ engaged in disorderly conduct. Disorderly conduct is a purely local crime that has no federal analogue...

The lawyer argues that his client should face a local disorderly conduct charge if anything.

Even more struggles by federal prosecutors

CBS News is reporting that, for the second time, U.S. District Judge Zia Faruqui has lambasted federal prosecutors for their handling of cases resulting from the federal law enforcement surge. As I discussed in a post last week, Faruqui previously complained that a case before him involved "the most illegal search I've ever seen in my life" and excoriated prosecutors for bringing the case. Yesterday, Faruqui again turned his ire on federal prosecutors. In both the earlier case and yesterday's, prosecutors appeared before Faruqui to ask that the charges be dropped. The defendant in the most recent case had already spent a week in jail.

What has been happening is that law enforcement officers have been arresting people with very marginal causes. Then, prosecutors are charging them with the most serious crimes possible, generally overcharging. When it comes time to appear in court, prosecutors have realized the weaknesses of their cases and sought to drop the charges. This has infuriated Faruqui, who yesterday said that the practice has brought "embarrassment and shame" on the government. He went on to say that the U.S. is "past the point of constitutional crisis" and that the Trump administration "is playing cops and robbers, like children". Faruqui accused the administration of being in a "rush to get stats on Twitter or Truth Social" and operating under the concept of "we'll arrest people… then see what happens."

Attorney General Brian Schwab files a lawsuit regarding the National Guard

Finally, the biggest news of the week from my perspective is that D.C. Attorney General Brian Schwab has filed a lawsuit against Trump and other officials due to the deployment of National Guard units in the District. I have discussed how the Posse Comitatus Act restricts National Guard units regarding law enforcement in earlier posts, but briefly, the National Guard can normally serve in one of three capacities:

1) under the control of the state's governor. In this case, the Posse Comitatus Act does not apply because it only restricts the federal government from using the military for law enforcement purposes.

2) "Title 10" status in which the President federalizes the National Guard units. Because the National Guard is acting as a federal military force at this time, the Posse Comitatus Act prohibits most involvement in law enforcement.

3) "Title 32" status which is sort of a hybrid of the two above. In this capacity, National Guard units remain under the control of the state's governor, but are assigned to federal duties. Because the units are not under federal control, they are not restricted by the Posse Comitatus Act.

The essence of Schwab's lawsuit is that while Trump has said that the National Guard units in D.C. have been deployed in Title 32 status, they are actually in Title 10 capacity because they are under the command and control of the federal government. Schwab has a lot of other arguments as well and I am not doing the full complaint justice, but this is what I believe to be the most important aspect.

The specific violations alleged by Schwab generally involve the President exceeding his authority. One argument is that the President actually has very little authority over the District. Instead, certain powers have been granted to Congress and others to the District as a result of the Home Rule Act. Therefore, the President has been encroaching on the authorities of others.

Axios reports that Bowser requested that Schwab delay the lawsuit in order to avoid complications with the end of Trump's control of MPD next week. However, Schwab declined to hold off. The deployment of the National Guard has already been extended.

A federal judge has already ruled that National Guard and military units deployed in Los Angeles violated the Posse Comitatus Act. Those troops were deployed in Title 10 status. If Schwab can win the argument that the National Guard units in D.C. are actually in Title 10 status as well, he might hope for a similar ruling.