Brian Lehrer: Brian Lehrer on WNYC. With what's going on in LA right now, let's go all the way there with the ultimate authoritarian nightmare scenario that many Democrats and some other people are articulating. It's that the mass deportation, workplace raid, and then deployment by President Trump of the National Guard is really about this, as articulated on NPR yesterday by California Congresswoman Maxine Waters.

Maxine Waters: Trump hates us. He hates [unintelligible 00:00:41] He's going to try and make an example out of us. This is how he's going to get to have martial law because he wants to goad us into a fight.

Brian Lehrer: Martial law. Is the Trump administration acting consistent with the Constitution, at least so far? Would anything allow him to declare martial law in a constitutional sense? Joining us now is Leah Litman, professor of law at the University of Michigan and a former Supreme Court clerk, co-host of the podcast Strict Scrutiny, and author of the new book Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Professor Litman, thanks for coming on for this on short notice with the breaking news. Welcome back to WNYC.

Leah Litman: Thanks for having me.

Brian Lehrer: Let me start here. They had warrants for the raids on workplaces on Friday, from what I read. The workplace raids that triggered the protests, they arrested more than 100 people. Did the warrants at least make it legal to just burst into workplaces where there was no disturbance or to pull out workers who were not suspected of anything other than their immigration status?

Leah Litman: Without having seen the warrants, it's a little bit difficult to know. Sometimes warrants might authorize immigration officers or federal officers to detain or arrest other people on the premises, or they might be defined in such a way as to allow them to detain only a certain number of people. I have some skepticism about whether the way in which they conducted the arrests was lawful, in particular, the mass roundup of individuals at Home Depot trying to seemingly wrangle as many people up as they could while individuals are fleeing does not strike me as the kind of thing that was likely authorized by the warrant or by probable cause.

Not having seen the warrant, it's a little bit difficult to say.

Brian Lehrer: The LA raid is obviously making news. There are some others that have been reported. There was a raid on a construction project I see in Tallahassee, Florida, last week where agents detained dozens, according to The New York Times. Footage of ICE agents making a raid at an Italian restaurant in San Diego went viral on social media because masked immigration agents were met with angry bystanders, obviously, so many angry bystanders. Now we say mass protest, or large protests LA. As these confrontations seem to be escalating, is interfering with an ICE operation as a bystander a crime, or what threshold does one have to cross to make it a crime?

Leah Litman: It is a federal crime to assault or impede or obstruct a federal officer, but it seems like the administration is taking the position that mass demonstrations or protests, that that constitutes obstruction and that cannot be because the constitution protects individuals right to dissent and to protest, to show up to places in which officers are conducting raids and arrests, and to signal your disagreement with federal immigration policy. While yes, federal law does criminalize certain things like assaulting an officer or obstructing an investigation, it does not seem like many of these mass protests or the kinds of activity that many of the individuals at these mass protests are engaged in would constitute a federal crime.

Brian Lehrer: How about ICE agents wearing masks or refusing to identify themselves when asked? Is that legal? They're public officials.

Leah Litman: That is a little bit more complicated. Whether they are required to identify themselves might speak to whether they have probable cause or suspicion to detain someone or arrest someone in particular. If someone who doesn't identify themselves as a law enforcement officer comes up to you and puts their hands on you or ask you for information and you don't know they're a law enforcement officer, then it's going to be much less clear if their refusal to answer or their attempt to resist you would constitute additional cause or basis to arrest or question them further.

Brian Lehrer: Listeners, if anybody wants to ask a question about the legality on any side of what's going on in LA, you can call for Leah Litman at 212-433-WNYC. Call or text 212-433-9692. Obviously, what's legal or constitutional is not the only thing worth talking about with respect to all of this. What's humane, what's decent, what's right? We're focusing on the legal right now with the legal analyst, 212-433, WNYC 433-9692. I'm going to play a clip of Governor Gavin Newsom, who called on Trump to withdraw the troops. He also says Trump is creating the conditions that he's claiming to correct, meaning escalation of tension.

Let's take a listen to a little bit of what Newsom had to say this morning. This is 20 seconds.

Governor Gavin Newsom: Well, I mean, look, Donald Trump has created the conditions you see on your TV tonight, he's exacerbated the conditions. He's lit the proverbial match. He's putting fuel on this fire ever since he announced he was taking over the National Guard in a legal act, in a moral act, an unconstitutional act. We're going to test that theory with a lawsuit tomorrow.

Brian Lehrer: Governor Newsom did file a lawsuit today, I understand. Have you seen it or seen it described to describe it to our audience?

Leah Litman: Yes. Among the claims that the lawsuit makes is that Donald Trump cannot call up or federalize the National Guard troops under the relevant statute that he invoked without the consent of the governors. The lawsuit further claims that the president's invocation or attempts to deploy members of the armed forces under his so-called protective authority in the Constitution also exceeds his authority. There is both a claim that the president is exceeding his powers that are granted to him by statute and also that the president is exercising authority that the Constitution does not grant him.

Brian Lehrer: What do you think the arguments will be on both sides?

Leah Litman: My guess is that Donald Trump will be pointing to the capacious wording of the federal law, which allows the president to federalize National Guard troops when the president is unable with the regular forces to execute the laws of the United States. There is some ambiguity in the statute, however, and my guess is that California and the groups challenging the president's invocation of the National Guard troops will point to the final clause of the statute, which refers to orders for these purposes, that is, the orders that are specified by statute.

It says that those "shall be issued through the governors of the states," which seems to contemplate that. Again, this is done with some consultation or permission [unintelligible 00:07:42] governors. As to the constitutional claim, my guess is the president is going to be pointing to a long series of Supreme Court cases in Renegle, in Redebbs, which refers to generally the president's protective power to protect federal law enforcement, federal property, and federal personnel. My guess is that the challenge that California and other entities might make is that there just isn't a sufficient basis here to conclude that deploying the military is necessary to protect federal personnel and federal property.

Brian Lehrer: The last time a president called out the National Guard without a governor's approval was notably the opposite of this. Before the legendary Selma to Montgomery civil rights march in 1965, President Lyndon Johnson called out the Guard to protect protesters from the local police. The governor, George Wallace, local police, racist police. This time, Mayor Karen Bass called out the police to protect protesters from the National Guard. Do you see that as an extreme historical irony, the way I do?

Leah Litman: I do, absolutely. I think it's no accident that here in our modern day, the president is essentially deploying federal troops to punish, protest, and to police Americans' protest activity, whereas the last time the president did so was to protect Americans' protest activity against law enforcement and government officials who sought to restrain it.

Brian Lehrer: Mayor Bass was on All Things Considered yesterday, and she was asked if things will inevitably escalate. Here's part of her response.

Mayor Karen Bass: There's no reason for this to continue to escalate at all. Having said that, we also want to make sure that the protests stay peaceful, that we don't give the National Guard or the Trump administration the excuse. When mayhem breaks out, it's going to be addressed. I'm just hoping that people peacefully demonstrate. They exercise their First Amendment right, but they do not cross the line into violence.

Brian Lehrer: Mayor Karen Bass, Professor Litman, I don't know if this is out of your lane as a legal analyst, but Mayor Bass and others who are outraged at what the Trump administration is doing. Are also calling on the protesters to please keep it peaceful, don't take the bait. Don't provoke any more of an overreach of a crackdown, potentially leading to martial law. That's not to say that whoever those individuals are who are engaging in violent protest, and they seem to be relatively few compared to the group, we should say.

Of course, they're not necessarily going to take a cue from Mayor Bass to not inflame the situation. I wonder if you have any impression of what's going on that side.

People who are completely aghast at what Trump is doing, but trying to keep the protests peaceful.

Leah Litman: Yes. I have seen the same videos that everyone else probably has. I think, again, in the main, for most of the individuals who are engaged in the protest activity, they are engaged in peaceful, lawful protest. However, I think when federal officers begin doing tear gas or escalating the situation, it's difficult not to put your own hands up to try to protect yourself and the people around you. I have no doubt and have seen one or two individuals in some of these videos also allegedly engaging in some acts of violence.

I also think it's right to be concerned that what Donald Trump is doing is trying to escalate the situation in order to create a justification and a traditional predicate for deploying more federal officers. The reality is that soldiers who are trained to fight and destroy an enemy are not trained in traditional law enforcement actions. They're not trained to de-escalate protests and civil unrest. I think that should be of additional concern to everyone, including the protesters, about the kinds of engagement that the Trump administration might be priming us for.

Brian Lehrer: To that point, here's Henry in Edgewater in Jersey. You're on WNYC. Henry, thank you for calling in.

Henry: Yes, hi. I'm just a citizen, a taxpayer. I'm not a news junkie. I did not vote for Trump. I'm looking at the headline Wall Street Journal right now. Highways blocked, cars burned. This is hard to square with peaceful protests. I hear people talking of peaceful protests, but it sounds like they're ignoring this stuff. That's my comment.

Brian Lehrer: Good. Let me ask our guest a question based on that. Professor Litman, Trump called the protests a riot and sent in the National Guard on that basis. California officials say no, they were protests with a few instances of violence. That's different. Another comparison that I've heard, I think, from Mayor Bass was that the last time the National Guard were sent in for crowd control in LA was in the 1992 LA riots following the Rodney King verdict. Bass says this does not remotely approach that. What is the threshold for sending in the National Guard? What determines something is a riot as opposed to a largely peaceful protest with a few violent incidents?

Leah Litman: I think the reality is even if there is a protest with some isolated incidents of violence, or even if there is a protest with more violence, the default is that state and local law enforcement they are charged with enforcing public welfare and ensuring public safety. The federal laws that Donald Trump is trying to invoke presume that state law enforcement is incapable or unwilling to do the job, and that the existing federal law enforcement here, ICE and DHS, is also unable to do the job. The fact that there might be some incidents of violence or some obstruction is in no way sufficient to allow the federalization of the National Guard or the deployment of the military.

The statute that Donald Trump invoked allows the National Guard to be federalized under three circumstances. One is if the United States is invaded or in danger of invasion by a foreign nation. That's clearly not true here, but that indicates the high threshold that this statute is contemplating for the deployment of a federalized National Guard. It also speaks of a rebellion or danger of rebellion against the authority of the government of the United States. Again, a handful of incidents of violence or even some incidents of violence that is not a rebellion against the authority of the government of the United States, of which this statute contemplates.

I also don't think there is an indication that we are in the third and final category that the statute contemplates, which is that the president is unable, with the regular forces, to execute the laws of the United States. The president and his advisors are trying to carry out their mass deportation plan. The fact that some Americans believe that that should be conducted with due process and according to the laws of the United States does not mean the President can't, with the regular forces, execute the laws of the United States.

I think we should keep in mind, again, even if there are some incidents of violence and some capacities that are being limited or obstructed, that is for state and local law enforcement or the federal officers with federal law enforcement powers to address, not for the military.

Brian Lehrer: Another listener question, listener writes, would a warrant for 100 immigrants at Home Depot require names for each person?

Leah Litman: I don't know. One of the concerning aspects of the deployment of all of this federal law enforcement is surveillance is much more powerful now, even without federal law enforcement officers having individual names or collecting names. We don't exactly know how they might exert this power or leverage the enhanced surveillance that they might have access to.

Brian Lehrer: Now, Trump might invoke the Insurrection Act, which would give him even additional powers. He's already used the word insurrection to describe some of what's been going on. What if he were to actually invoke the Insurrection Act? What does that change?

Leah Litman: The Insurrection Act allows federal military officers to engage in civilian law enforcement, basically to do the things that ICE officers can do, from arrests to detentions and whatnot. Right now, the federal military is only there to protect ICE or DHS officers. They are not themselves supposed to be able to engage in immigration raids or arrests. Invoking the Insurrection Act, however, would change that and would give the federal military and National Guard those additional powers.

Brian Lehrer: What about martial law, which Congressmember Waters cited as a threat, and what Trump might actually want? I have listeners texting the same thing. "Oh, we know what Trump's after here. Martial law." People have been texting that since January 20th.

Leah Litman: Yes. I don't want to underplay the concern with what Donald Trump is doing right now. Again, the specter of blurring the lines between civilian and military and deploying federalized Guard members to police protest activity that is deeply concerning, and we should all be alarmed. Martial law, however, refers to something that is quite technical and goes beyond just the Insurrection Act that gives federal officers substantive authority. It gives them additional power to arrest or detain, or additional power to use force beyond that granted by existing federal law.

Brian Lehrer: Defense Secretary Hegseth says he might deploy the Marines if the situation gets worse in some way. Is that legally different from deploying the National Guard? Is that an example of what the Insurrection Act invocation would allow?

Leah Litman: Yes, that would be an example of what the Insurrection Act would potentially allow, but right now, that is being justified under the president's so-called inherent or protective power. The idea that the Constitution gives the president, under the commander-in-chief clause or the vesting clause, which gives him the executive power, some additional set of powers that might include deploying the military to protect federal personnel or property. That is an extremely expansive vision of constitutional executive power, but that seems to be what they are gesturing at.

Brian Lehrer: Your new book, which you were on for recently to do a book interview, thank you. Is about the Supreme Court. How do you see the Supreme Court acting, if you want to project at all, if, let's say, Trump does invoke the Insurrection Act and that's challenged as invoking it on too small a threshold, too little a disturbance to warrant it.

Leah Litman: I am very concerned about what this Supreme Court might do, which is why I think it is so essential for us as citizens to try to mobilize one another and stop this at the point of public opinion and political action. It's possible the Supreme Court would say it's not up to courts to review the basis on which the president is invoking the Insurrection Act. We also know this court has expansive views of executive power and has embraced things like the unitary executive that Hegseth and Trump seem to be invoking here.

Brian Lehrer: Leah Litman, professor of law at the University of Michigan, co-host of the legal affairs podcast Strict Scrutiny, and author of the new book Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Thanks again for coming on in short notice and talking to us about so many aspects of what's going on in LA.

Leah Litman: Of course. Thank you.

Brian Lehrer: That's the Brian Lehrer Show for today. Produced by Mary Croke, Lisa Allison, Amina Srna, Carl Boisrond and Esperanza Rosenbaum, and Zach Gottehrer-Cohen, who produces our daily politics podcast. Juliana Fonda and Milton Ruiz at the audio controls. Stay tuned for Allison.

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