Trump's offensive, disrespectful, dangerous dictatorial move

There was a time when D.C. needed the National Guard. This isn't it.

Photo by Venkata Oruganti on Unsplash

President Donald Trump’s latest quasi-dictatorial move—militarizing the streets of Washington, D.C., seizing control of the local city police force, and taking FBI agents away from their federal investigations and putting them on street patrol duty—is offensive, disrespectful, and dangerous.

I worked as an assistant U.S. attorney at the District of Columbia U.S. Attorney’s Office (USAO) for 24 years, though "federal prosecutor" doesn't quite convey the nature of the work I performed.

There are 93 USAOs in the United States and the territories, 92 of which investigate and prosecute exclusively federal crimes. One office, however, investigates and prosecutes both federal crimes—those that violate federal statutes—and local crimes: the D.C. USAO. Given this unique dual responsibility, the AUSAs in D.C. serve both as traditional federal prosecutors and as de facto district attorneys for the District Columbia.

Courtesy of this dual role, I had the extraordinary opportunity to go from prosecuting RICO cases in federal court one year to prosecuting murder, rape, arson, burglary and robbery cases in local D.C. Superior Court the next.

In my capacity as a local prosecutor, I worked closely and daily with District law enforcement—the men and women of the D.C. Metropolitan Police Department (MPD). It is an outstanding police department, populated by honest, professional, and ethical officers, investigators, and detectives dedicated to protecting and serving the people of D.C. MPD has its problems and challenges, as do all big-city police departments. But, in my experience and opinion, it has always been led by people who wanted the best for the residents of our nation’s capital.

Why do I say Trump’s takeover of MPD is offensive? For starters, a convicted felon just seized control of D.C.’s primary law enforcement agency. A criminal is now in control of the cops. The demoralizing effect of this depraved circumstance is incalculable.

And consider: The person many blame for instigating the attack on the U.S. Capitol that injured more than 100 police officers is now in control of some of the very officers injured on Jan. 6, 2021. This is offensive, depraved, and cruel.

Why do I say Trump’s latest moves are disrespectful? Reporting indicates that Trump intends to take as many as 120 FBI agents from the Washington Field Office and put them out in the streets as make-shift patrol officers.

The FBI investigates and combats federal crimes such as interstate kidnappings, cybercrime, nationwide fraud schemes, terrorism, and child sex trafficking. Pulling FBI agents off federal investigations to have them patrol the streets of D.C. is disrespectful of their work, their experience, and their investigative expertise. Just as DOJ Civil Rights Section attorneys are fleeing federal service in record numbers as their work assignments morph from protecting voting rights to promoting so-called voting integrity (a bit of semantic misdirection to cover up the true objective, voter suppression), it’s hard to see how demoting experienced FBI agents to patrol officers won’t result in mass departures from the bureau.

Why do I say that Trump’s latest movers are dangerous? Trump is deploying the National Guard to the D.C. streets to, in substance, serve as police officers. To be clear, the men and women of the National Guard play a vitally important role in America’s security. They assist the military in fighting our nation’s wars, serving as a kind of reserve unit for the Army and Air Force. They can be deployed to respond to emergency situations that result from natural disasters and can deal with civil unrest. But they are not police officers.

For example, members of the National Guard are not steeped in the legalities of the Fourth Amendment’s prohibition against unreasonable searches and seizures and the implications and evidentiary consequences to a criminal prosecution of the police overstepping their constitutional bounds. They don’t have to deal with the impact on a prosecution if they run afoul of the legal and constitutional rules surrounding the dos and don’ts of custodial interrogation. Are National Guard members trained in the difference between a suspect’s invocation of the right to silence versus an invocation of the right to counsel? Such differences have distinctly different consequences in the context of motions to suppress statements. Do they know whether a police officer is permitted to or prohibited from reinitiating contact with a suspect after the suspect invokes one right versus the other?

Police officers are regularly trained on these legal/constitutional matters (I know, because I trained MPD officers and detectives on these legal matters for many years) to ensure that they are engaged in proper policing and that the resulting evidence will be admissible at trial.

So yes, it’s dangerous to put armed members of the National Guard on D.C. streets to act as police officers—dangerous in the moment and potentially perilous to the prospect of successful prosecutions in court.

And when I say that Trump’s power grab is quasi-dictatorial, that’s probably unfair.

It’s fully dictatorial.

Not that this seems to matter much to Trump, but there is a law that governs when he can take “emergency control of police.” Pertinently, that is the title of a statute found in the District of Columbia Criminal Code. The District of Columbia Self-Government and Governmental Reorganization Act (commonly referred to as the DC Home Rule Act), on the books for more than 50 years, essentially authorized the residents of D.C. to create a city government (though with some significant federal oversight authority).

DC Code Section 1-207.40, titled “Emergency control of police,” sets out when and how a U.S. president can employ the Metropolitan Police force “for federal purposes” (consider that foreshadowing).

The law provides that, if the president “determines that special conditions of an emergency nature exist which require the use of the Metropolitan Police force for federal purposes, he may direct the Mayor to provide him . . . such services of the Metropolitan Police force as the President may deem necessary and appropriate” (emphasis added).

Where to begin? Well, nowhere in the statute does it empower the president to seize control of the MPD. Yet that is expressly what Trump did. Feels a bit dictatorial, no?

Trump did not articulate what the special emergency conditions are—beyond “special crime emergency”—that empower him to direct the D.C. mayor to do anything. Moreover, the reporting is that neither D.C. Mayor Muriel Bowser nor the D.C. chief of police had even been contacted by the Trump administration. They learned about it as they watched Trump announce it at a televised press conference.

Ironically, there actually was a time when there was a special emergency in Washington, D.C.— when there was an acute need for local D.C. police to be used by the federal government to protect life, limb, and American democracy from a raging violent attack. It was at the U.S. Capitol on Jan. 6, 2021. On that day, Trump neither sought the emergency assistance from Bowser to provide MPD forces to protect the U.S. Capitol and everyone therein, nor did he order the National Guard to deploy.

Not surprisingly, Trump’s clear, flagrant, and inarguable violation of D.C. law in seizing control of the Metropolitan Police Department prompted the following response from attorney general for the District of Columbia, as reported by The Hill: “DC attorney general: ‘Trump actions ‘unprecedented, unnecessary, and unlawful.’”

I up the DC AG’s ante by adding offensive, disrespectful, dangerous, and dictatorial.

Glenn Kirschner is a legal analyst. He was a federal prosecutor for 30 years and is an Army veteran.

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