Newsom v. Trump: A Trial Diary

COMING UP: Judge Charles Breyer is set to preside over a bench trial in Newsom v. Trump

The suit, brought by Governor Gavin Newsom, challenges Trump’s use of federal military forces to enforce immigration in California. I plan to live-post for @lawfaremedia.org. Follow along ⬇️🧵

BACKGROUND: Judge Breyer previously entered a TRO/injunction, holding that Trump did not lawfully federalize the national guard under s. 12406, which is the law cited in Trump's executive order.

But then the Ninth Circuit intervened, effectively allowing Trump to mobilize the guard.

Now, however, California is seeking injunctive relief based on a different law: The Posse Comitatus Act, which generally prohibits use of the military for domestic law enforcement. California says that national guard troops and marines deployed in the state violated the Posse Comitatus Act.

And now the proceedings are underway. Judge Breyer takes the bench. I'm listening by Zoom. We have audio access, but no video. (I think you should be able to access the Zoom here: cand-uscourts.zoomgov.com

The parties just introduced themselves. For the state of California, It's Megan Strong, Jane Riley, and a number of others. For DOJ/the government, it's Eric Hamilton, John Bailey, etc.

Judge Breyer is now explaining what's at issue. The factual question, he explains, is whether the military was used for domestic law enforcement and whether there's a threat it will be done again in the future. We'll hear evidence on that issue from witnesses today and tomorrow, he says.

There are legal issues, too, Breyer says. One is that Posse Comitatus is a criminal statute, so there's the argument that California can't bring an action claiming violations of it in the civil context.

Breyer: There are also standing issues, and questions about whether s. 12406 expressly constitute an exception to the Posse Comitatus Act (PCA). We'll address the legal issues during argument on Wednesday, after the court hears the evidence on the evidentiary stage.

The state of California, as the plaintiff in the case, gets to go first wrt presentation of evidence. Here's the witness list the state submitted last week:

Jane Riley, for the state of California, calls William Harrington as the first witness. Harrington is the Deputy Chief of Staff for Task Force 51, which is US Army North's Contigency Command Post. It had control over the national guard troops and marines deployed to LA.

Riley, for CA: DHS is separate from the military? Harrington: Yes Riley: You're responsible for managing the staff of Task Force 51? Harrington: Yes Harrington, before he was in his current role, was instructor of a course that covers how DOD provides security to federal law enforcement.

Harrington says the course he instructed covered Posse Comitatus. In his role as deputy chief of staff, he wrote reports to Major General Scott Sherman. In writing those reports, he received reporting from units.

Now we're on the subject of a June 7 meeting/briefing. Task force 51 leadership was there. Harrington can't remember if the lawyer was there. At time of briefing, Harrington said he knew of PCA (Posse Comitatus Act). Had knowledge bc of previous instruction, etc.

Harrington says he raised question of PCA during the June 7 briefing. Everyone in the briefing agreed that the troops would be subject to PCA, Harrington says. Riley: And bc of PCA, your understanding that federalize troops could not engage in civilian law enforcement? Harrington: Correct

Riley: You don't know anyone who thought the troops weren't subject to the PCA? Harrington: Yes ma'am Riley: Never heard opinion it did not apply? Harrington: Correct

Riley tells Harrington to turn to Exhibit 10 in binder. [We can't see doc bc audio only and a bunch of the exhibits were filed under seal. Will do my best based on descriptions of docs.]

Breyer interjects to say that the exhibit isn't showing on screen. Unclear if he means in court or on Zoom. He says let's pause to try to get the tech person to put the exhibit up.

Ok, we continue with the document on the court's screen but not on the Zoom screen. [ :-(( ]

Riley: Task Force 51 soldiers were told they could detain civilians? Harrington: Yes Riley: But you can't conceive of situations in which soldier would detain civilian w/o violating PCA? Harrington: I don't agree with that Riley instructs him to turn to his previous deposition testimony.

Riley: Turn to pg. 179 of your depo. Harrington complies. Riley: Do you see where I asked about whether you could conceive of situation in which soldier could detain civilian who did not violate criminal law w/o violating PCA? Harrington: Yes

Riley: And do you see where you responded to that question "No ma'am"? Harrington: Yes ma'am

Riley: Some requests for assistance involved Task Force 51 to guard federal buildings? Harrington: Yes Riley: And some requests for assistance asked for assistance w/ law enforcement operation in Mecca, California? Involved a marijuana farm? 300 TF 51 troops? Harrington: Yes, yes, yes

Harrington says Task Force 51 troops also involved in an operation in Camarillo, CA, which also involved a marijuana farm. They had humvees, other military vehicles. There was also the MacArthur Park operation, which was approved by the Secretary of Defense. Humvees & tactical vehicles involved

Riley displays documents that relate to Task Force 51 operation in MacArthur Park. One part says the purpose of the operation is to "protect the execution of joint federal law enforcement missions...while preserving public safety and demonstrating federal reach and presence"

Harrington says that his deployment with Task Force 51/CA deployment has ended. It ended on Aug. 8, he says, when he was told he was coming here [to court]. He won't return to LA when done -- will return to Ft. where he was stationed.

Riley: Are you aware that Sec of Defense announced the deployment of Nat Guard troops in DC? Objection, relevance. Overruled -- goes to future risk of violations. Harrington says he wasn't aware of announcement.

Riley: Do you have any involvement in DC deployment? Harrington: No ma'am. Riley is done with her direct examination. The defense is up for cross. It's Jody Lowenstein for DOJ.

Lowenstein: You aren't a lawyer? Your understanding of the PCA is not based on any formal legal training? Harrington: Correct

Lowestein: You were asked about troops involvement in operation in Camarillo. Can you explain what you mean when you said they were involved?

Harrington: Federal agents were already executing law enforcement in Camarillo. They had canceled request for assistance. But as executing operation, crowds formed on roads so we received request to provide protection for those agents

Lowenstein: What kind of conduct were those people involved in? Harrington: "Unruly" crowd. Threw rocks at agents, popped tires. Lowenstein turns to the MacArthur park operation. You recall that you testified that Task Force 51 participated in that operation? Harrington: Yes

Lowenstein: Did any task force 51 agents engage in law enforcement functions during that operation? Harrington: No sir

The state of California next calls Major General Scott Sherman. Sherman says he reviewed a memorandum that assessed what TF51 could legally do under the PCA around mid-June. Roley turns to a page of the exhibit (which we can't see on the Zoom).

Apparently the court is having issues with the public display in the courtroom. We're on a 10 minute recess while they get it sorted.

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We're back from recess. RIley publishes a page from Exhibit 15 [which I can't see, but Sherman reads]. The paragraph says, in part, that use of troops such as "an arrest or detention of civilians for violations of the federal criminal code would be a violation of the Posse Comitatus Act"

Riley: Did you ever hear that there was a "rebellion" in LA? Sherman: Not a rebellion, but "there were there people that were preventing federal officials and federal law enforcement from doing their job and also threatening federal buildings."

Riley: But no one you spoke to at DOD ever used the term rebellion? Sherman: Correct Riley: And even though the PCA applies to TF51, you think there is an exception to the act that applies? Sherman: I'm not a lawyer but through training I understand there are certain exceptions to the PCA

Sharman explains that his understanding -- based on guidance from DOD -- was that Task Force 51 could, for example, form a security perimeter based on belief that there was a "threat" or that federal law enforcement was being interfered with such that they could not do their job.

Riley: And troops told that they could set up traffic control point unless there was hostile vehicle coming toward a federal law enforcement agent? Sherman: Correct. Riley: Bc setting up traffic control point is law enforcement function? Sherman: Correct

Riley turns to subject of detaining civilians. On June 12, TF51 marines did detain a civilian? Sherman: Correct Riley: Civilian was a veteran going to VA? And marines told him to stop but he didn't bc wearing headphones? Sherman: Correct

Riley: And the person originally did not come in the correct way, but he was only detained after he came back in the correct way? Sherman takes issue with this account. He says his understanding is that even when the person came in the correct way, he didn't stop, didn't provide ID, etc.

Riley: but the Marines who stopped him never saw him engaging in an action that they considered to be a threat? Sherman: Well, they didn't know, bc he didn't stop, had his headphones on, barreled right through the checkpoint, and that's when they stopped him.

Riley: Other than not stopping bc he was wearing his headphones, there was no other reason that was cited as a reason for the detention? Sherman: That's correct

Now we're talking about troops accompanying ICE on warrant service operations. Sherman confirms that TF51 troops accompanied ICE when they made arrests.

Riley displays photos, which I can't see on the Zoom. She says the individuals shown are wearing camo. Sherman can't tell from photo whether it's TF51 troops. More photos in which Sherman can ID TF51 vehicles. Says he doesn't know what the troops are doing in the photos.

Now there's a June 13, 2025 document from the Third Platoon, Company Bravo, First Battalion, 160th Infantry, which was under TF51 at time. It reports that on June 13, soldiers attended an FBI briefing in the vicinity of Carson, CA, to "execute the arrest of [REDACTED]."

The document further describes that the arrestee was reported as throwing rocks at federal officers. When FBI and national guard arrived, they set up blockades and each blockade was accompanied by LA sheriff's vehicles. [REDACTED] was not located but his brother was detained.

Now we're talking about the Mecca operation at the marijuana farm. Sherman says there were approximately 300 TF51 soldiers involved, 50 military vehicles.

Riley: During the Mecca operation, neither the task force 51 troops nor the federal law enforcement agents faced any resistance. Right? Sherman: I don't know about federal law enforcement, but our soldiers did not face any resistance on the outside, no.

Riley: And no task force 51 soldier was required to provide force protection to any federal agent during the Mecca operation. Correct? Sherman: No, not inside the perimeter. That is correct.

Riley moves on the Carpenteria operation. Involved 100-120 military troops, 20-25 military vehicles, according to Sherman. Riley shows a document related to the operation. It's an assessment that says the risk of inaction is "low."

Sherman reads part of the Capentria assessment aloud: "No indication that failure to act would result in loss of life or significant property damage to federal personnel at both traffic control points..."

Riley plays a video that was taken during the Carpentria operation. It apparently features a woman standing before TF51 troops, holding a megaphone. Riley: You have no info the woman threatened any law enforcement here? Sherman: I don't have the context

We move on to the operation in Camarillo, CA. This took place after Sherman left his role as commanding general with TF51. So he doesn't have personal knowledge as to what happened. But Riley shows a photo. It apparently show TF51 members wearing face shields. He doesn't know what they're doing.

Another photo. Riley: You can't explain what soldiers are doing in this photo? Sherman: I cannot

More photo exhibits. For each of them, Sherman can't explain what the soldiers are doing.

Riey displays a video from the Camarillo operation. Sherman says he doesn't know the context of what's happening, he wasn't there.

Another video. Riley: people wearing gas masks and face shields are in this video? Sherman: Yes, but there are federal agents wearing gas masks and face shields too. Riley re-plays the video.

Sherman, having seen the video a second time, agrees that TF51 soldiers are in the video. He can't explain what's happening bc he wasn't there but says it appears they are holding people back at a traffic blockade.

Onto the MacArthur Park operation on July 7. Riley: Original request for assistance called for 50+ military vehicles to be on the section of road that runs through the middle of MacArthur Park? Sherman: Yes

Riley: You objected to the original request for assistance on MacArthur Park? Sherman: Correct Riley: And a DHS official, Chief Gregory Bovino, criticized you for objecting to that request? Specifically, he questioned your loyalty to the country? Sherman: Yes

Sherman says he was ultimately not the official who approved the operation that took place on July 7 in MacArthur Park. It went to the Secretary of Defense for approval.

Riley displays a document. It's an assessment related to the MacArthur Park operation. The assessment says "current intelligence does not indicate a high volume or high value target to federal function..No indication that failure to act would [result in] loss of life or significant property damage."

Riley asks Sherman about Hegseth statements regarding deployment of troops in DC. Sherman says not aware of statements. Riley wants to play a video of the Hegseth statements. DOJ objects, says it's not part of the evidence in the case or exhibits. Breyer: How could it be, it happened today?

Breyer allows Riley to play video of Hegseth's statements during press conference this morning. There's a break while Riley tries to get the video on the display. Breyer eventually says let's recess until 1 pm [4 pm for those of us on the east coast.] And we break until 1 pm/4 pm ET.

Question for those following along: How is the thread holding up? Is it breaking up? Should I start a new thread, or continue with this one?

Btw, I wasn't able to track this in real time, but as @johnhawkinson.bsky.social points out, some of the photo exhibits discussed earlier ARE on the public docket:

Ok, and we're back on the record. Riley plays Hegseth's statements from this morning regarding the deployment of National Guard in DC. At one point, he says they "did the same thing" in LA.

Riley to Sherman: You had not seen that until now? Sherman: Correct. No further question from the state of California. Cross examination by DOJ.

[The attorney handling cross for DOJ doesn't ID herself at the lectern, so I'm not sure which DOJ attorney this is. And I can't see her. I'll refer to her as DOJ for now.] DOJ begins by asking about photographs of TF51 taken by Sergeant Chase Murray.

DOJ: Were there guidelines given to Murray re: photographs? Sherman: Guidance to avoid taking photos of identifying info of federal law enforcement bc law enforcement had been doxxed. So he's in position in these pictures to avoid photographing federal law enforcement; photographing DOD personnel

DOJ: To your knowledge, any TF51 members used batons? Sherman: Not to my knowledge, that didn't happen. After you left July 10, did any soldiers use batons? Sherman: I was on distribution, but I didn't see reports that batons were used.

DOJ: Did any TF51 members use their personal weapons? Sherman: They did not, they did have loaded magazines, but nobody ever chambered a round. Never were in a position that they thought that their life was in jeopardy

DOJ: Why were they able to carry lethal weapons? Sherman: It's strictly for self defense, if they thought their life was in peril, that was the only time they were allowed to use their personal weapon.

Looking to an exhibit that described TF51 establishing a blocking position, DOJ asks if TF51 was permitted to establish such blocking positions. Sherman says they could establish a blocking position if they thought law enforcement was prevented from doing their job or there was an imminent threat

DOJ: So pursuant to the federal protection mission, were federal military forces allowed to establish blocking positions if federal law enforcement was the lead? Sherman: They were allowed to be behind federal law enforcement-- in this case, strictly to protect them if there was a threat

DOJ: And so to your knowledge, no task force acting pursuant to the federal protection mission established blocking positions that were just by themselves not connected with law enforcement personnel? Sherman: That's correct

DOJ asks Sherman to describe what it means if a commander felt "threatened." Sherman: Either they were protecting a federal facility, or they wereon a mission to protect federal law enforcement.. They have the ability on the ground to make decisions depending on how they sense how things are going

DOJ: Does it have to be an actual threat, or can you take preventative measures? Sherman says you could have TF51 troops standing behind law enforcement so they could react quickly as necessary.

Breyer: So even if no threat assessed, could send military out? Sherman: Yes, bc if something did happen, then they could respond. He gives example of low threat assessment on execution of arrest warrant but once troops/law enforcement went to site, people came out and harassed federal agents

Breyer says he's trying to figure out if you can use military for types of situations in which there's merely some indication that the law is unpopular. Sherman says he's not a lawyer but there are exceptions to the PCA for protecting federal property and allowing federal agents to enforce law

Breyer says he's not talking about federal property protection situations. He's talking about a situation in which there are federal laws that are implicated, and those laws are unpopular laws, and there is no threat. Can you send out the military in that situation to help enforce the law?

Sherman says yes, Your Honor, we could send out the military because the idea that there is low/no threat is just a pre-incident assessment of the the situation on the ground, but it could turn out to be different. He says that kind of situation played out in Camarillo

DOJ, continuing its line of questioning, gets Sherman to clarify that it's not their role to determine whether a law is unpopular. The military's role is simply to partner with federal law enforcement to protect them if they did encounter hostile crowds or actions.

Breyer interjects: Let's take an example. Say the risk assessment is low. But you said in some examples even if risk assessment low, you're told to assist federal law enforcement. Who tells you that? Who says I'm advising you nonetheless to employ troops?

Sherman: No one talked to me directly. It was a request from federal law enforcement that came to TF51....they were requesting, they didn't tell me. Even if our assessment was low, it was a safety measure for them to ensure they had protection.

Breyer: But wouldn't that then always be the case? If the civilian law enforcement tells you we want military force just in case something happens? Sherman: Absolutely, your honor...and we had plenty of capacity to do that. Breyer: Ok, I think that answers my question

DOJ asks about Exhibit 69, which is a photo Sherman was asked about earlier. DOJ: Caption says photo shows "establishing a security perimeter" in Mecca. Is that consistent w/ their federal protection mission? Sherman: Yes, this was consistent...lined up ready to go if needed to be called in

Riley is back up for re-examination on behalf of the state of California. Riley: You testified troops never used batons to hit. But you weren't present for field operations? Sherman: Correct

Riley asks about exhibit 38, which is a report from the Long Beach operation. You testified that federal law enforcement was the lead in that operation, Riley tells Sherman. You were not present for that operation? Sherman: Correct And you did not receive briefing from that? Sherman: I didn't

Riley: You wouldn't know for a fact that troops stayed behind federal law enforcement during that operation? Sherman: That is correct

Riley is done with re-examination of Sherman. Now Ernesto Santacruz, an ICE official with immigration and removal operations, takes the stand as the next witness. Lorraine Lopez is up to examine him on behalf of the state of California.

Lopez establishes that Santacruz was previously deposed in the case. Then she elicits Santacruz's professional background. He explains that he's currently the field office director for enforcement and removal operations in LA. He has 23 years experience with ICE. He previously served in military

Lopez: The area of responsibility for your office is central CA, which includes 7 counties? Santacruz: Yes Lopez: You also oversee just under 500 personnel? Santacruz: Yes Lopez: You oversee all enforcement and removal in your area of responsibility in central CA? Santacruz: Yes

Lopez asks about what Santacruz was told about how troops would assist ICE operations. Lopez: You understood that the deployed troops were to protect federal property, to protect federal officers in the event something went wrong? Santacruz: That is correct.

Lopez: The DOD did not explain what "protect" means? Santacruz: They did not specify Lopez: And you did not personally witness what federal troops did to protect ICE officers? Santacruz: Correct

Sanatzruz explains that assistance from military can be requested through a process known as Requests for Assistance [RFAs]. On June 8, Santacruz made a request for assistance from the national guard to protect federal officers conducting "large operations" related to immigration enforcement

Santacruz says his June 8 request was accepted. Lopez: You were not given information as to the activity that the federalized National Guard could engage in to fulfill your request? Santacruz said he was told that they would protect federal officers and operations, but not given info beyond that

Lopez: Requests for assistance are typically made in advance of large operations? Santacruz: Each request I made was ongoing, but there were other federal law enforcement components that made requests, and I would defer to those agencies.

Lopez: Going back to your request for assistance with large operations, you don't know what the federalized national guard to protect operations or agents? Santacruz: Correct. Lopez: You also made request for the Adelanto ICE processing facility? Santacruz: Correct

Lopez: that was in response to potential protests at the facility? Santacruz: Correct ... Lopez: The mere presence of the Federal National Guard could be a deterrent to members of the public considering hindering an arrest? Santacruz: Yes

Lopez shows Santacruz some photos that have been previously admitted as exhibits. Santacruz admits that he can't tell who is military and who is federal law enforcement in the photos.

Lopez: in your 23 years of experience, has the military ever accompanied ICE on immigration and enforcement operations? Santacruz: Not in my experience Now Garry Hartlieb is up to examine Santacruz on behalf of DOJ.

Hartlieb asks Santacruz to describe how he supervises 490 personnel. Santaxruz says he has "countless" meetings--discussions, phone calls, teams meetings, and so on. If there's misconduct or mission changes, that might come from headquarters. Also situational reports or incident reports...

Hartlieb: Did you ever request that DOD assist with ICE law enforcement functions? Santacruz: No. Early on, the understanding was that they were there to protect federal property and personnel. Hartlieb: Who explained that? Santacruz: I can't remember.

Hartlieb: Fair to say DOD employee communicated that? Santacruz: Yes Hartlieb: Any visibility into how DOD evaluated your request for TF51 assistance? Santacruz: No Hartlieb: How many requests did you make? Santacruz: 2

Sanatcruz explains that his first request was for at large operations in light of "increase" in officer assaults. Second request was for potentially large protest outside of ICE facility. Hartlieb: Ever ask DOD for assistance to execute arrests? Santacruz: No

Hartlieb: When you submitted request for assistance, any intent that TF51 deter people from lawful activity? Santacruz: My intent was protection of officers for folks conducting that work

Hartlieb: You mentioned officer assaults. How frequently would you receive reports of officer assaults during at large missions? Santacruz: Daily, multiple times a day. Santacruz says that he still received reports of officer assaults after military involvement, but frequency reduced

Hartlieb: Are you aware of interference with federal property prior to federalization of national guard? Santacruz cites an incident outside a federal building in LA, in which protestors allegedly attacked protective officers there and impeded ability of workers to enter/exit building.

The court reporter wants a break (and so do I!!). We're on recess for a few minutes.

And we're back. Hartlieb: Are you aware of the national guard taking in law enforcement activities in reponse to safety threats at Camarillo? Santacruz: I wasn't there, I would defer to HSI and DOD. They were assigned to play the role of a Quick Reaction Force...would defer to those agencies

Santacruz says that initially [after his request for assiatnce was approved], DOD assisted with 75% of at large enforcement and removal operations. But that number has since decreased.

Santacruz was not on the ground for operations, but he received reports with information like number of arrests, number of personnel, etc. Hartlieb: Based on reports, any information that TF51 members performed arrests? S: No H: Any information TF51 did searches or seizures? S: No

Hartlieb: Do you have any knowledge of what Posse Comitatus allows troops to do? Santacruz: I do not Hartlieb: Who had authority to decide what troops could do on an operation? Santacruz: I can't speak for DOD but my understanding they were there to protect federal personnel/property

No further questions. Nothing further from the state of California. Santacruz is excused. The plaintiffs rest. Breyer says we will proceed with the defense's witness (Scott Sherman, who testified earlier) tomorrow morning.

The government suggests that it also might call back other witnesses (Harrington or Santacruz). Once testimony wraps up, parties will deliver argument on evidentiary issue, then Wednesday we'll have argument on the legal issues. Before we leave, however, DOJ wants to raise a legal issue now.

Eric Hamilton for DOJ announces that the government moves for judgement as a matter of law on grounds that plaintiffs have failed to show a Posse Comitatus Act violation. Breyer says he'll will reserve judgment on the matter until later.

And with that, we're done. Thanks for following along today. I'll be back tomorrow. In the meantime, if you appreciate our live court coverage, I hope you'll consider donating to our non-profit newsroom. Thanks to all who already have! givebutter.com/journalism

HAPPENING NOW: It's Day 2 of the bench trial in Newsom v. Trump, the suit brought by California over Trump's use of the national guard and marines for immigration enforcement. I'm covering for @lawfaremedia.org.Today we expect testimony from the government's witnesses.

🧵Catch up on Day 1 here: 

"All rise" as Judge Breyer enters the room and (presumably) takes his seat behind the bench -- once again, we only have audio today. DOJ calls their first witness: Major General Scott Sherman, the commander of Task Force 51 (TF51). Sherman testified yesterday, too.

The DOJ attorney conducting the direct examination didn't introduce herself when she arrived at the lectern, so I'm not sure what her name is (and I can't see her since we only have audio). I'll try to figure it out, but for now will refer to her as "DOJ."

Sherman talks about all the awards he has won -- DOJ trying to bolster his credibility. Then he talks about his responsibilities when he was first deployed as the TF51 commander on June 9. He left CA on July 10, he says. A different general is now the commanding general for TF51.

DOJ: Who has command and control over the national guard troops still in CA as a part of the TF51 mission? Sherman: Army North DOJ: Did Sec Def provide parameters of mission? Sherman: Yes through memo he issued to northern command. DOJ points him to exhibit.

The guidance that Sherman reads aloud from describes the role of the troops as supporting law enforcement by protecting them and federal property. Sherman days this reflects his understanding of the soldiers' role.

DOJ: To your knowledge, did any troops exceed the parameters of the secretary's instruction? Sherman: They did not DOJ: You see this document is dated June 23? Sherman: Yes DOJ: But did you understand that the mission as described in this memo was the mission when it began on June 9? S: Yes

DOJ turns to exhibit 3. Memo provided to the adjutant general of CA "through the governor," telling them that they were mobilizing 2,000 national guard members. Then another memo with instructions re: scope of troops' mission to protection federal personnel/property.

Sherman also reviewed the president's memo, which contained similar language about protecting federal personnel and property where protests are occurring or "likely to occur."

DOJ: And that's your understanding of mission you were ordered to carry out? Sherman: Yes, it is.

DOJ: Do you recall being asked if there was any rebellion? Sherman: Yes, I'll clarify that in the president's memo it says that to the extent of protests or acts of violence directly hindered the execution laws and they constitute a form of rebellion. Did I know about that? Yes

Sherman continues: We followed the Sec Defense's guidance to the commander of Northern Command, which really focused on first, protection of federal property and protection of federal law enforcement and federal personnel, allowing them to do their federal duties and to also enforce federal law.

DOJ: Did soldiers deployed receive training on standing rules on use of force? Sherman: Yes, mandatory

DOJ directs attention to an exhibit that includes slides on training re: the posse comitatus act. One page says PCA "prohibits..." and then lists a number of activities.

As Sherman discusses PCA, he mentions "constitutional exception" to the Act. Breyer interjects: What do you mean? Sherman: I'm not a lawyer. The advice I was given is that we're allowed to do these four things, and that aligns with the constitutional exceptions.

Breyer: What's listed on the exhibit are things that are prohibited law enforcement functions. It's prohibited, you can't do it. And there are four things in red: security patrols, traffic control, crowd control, riot control. It says prohibited in this document. Military can't do it....

Breyer: Is that an incorrect reading? Sherman: These are highlighted because they are in line through the order of the president with the mission of protecting federal property and personnel.

Breyer: So your understanding is that while they are on the list of prohibited functions, you can do them under some circumstances? Sherman: That's the legal advice I received Breyer: And the president has the authority to make that decision? Sherman: The president has the authority

DOJ tries to clarify with the witness, which prompts an objection that Breyer sustains. Breyer tries to help. In any of these operations, would it be done directly by the military? Would traffic control? Sherman: Only if direct threat...traffic control point done to protect fed law enforcement

Breyer: So while traffic control done directly, it was done as an exception to this act bc it was done to protect federal law enforcement? Sherman confirms that's basically his understanding

Breyer: If there was some impediment of employees executing federal laws, the military can provide the services outlined in red that would otherwise be prohibited? Sherman: Yes

Breyer: What if the military assistance is just to aid execution of federal law enforcement, separate from any threat? Sherman: They were strictly there for protection...enforcement had to be conducted by fed LE. Making arrests, executing warrant, that's a federal law enforcement function..

DOJ turns to another exhibit. It talks about reporting procedures. Sherman earlier testified that if there were violations of the PCA it would have been reported. He now adds that even if it didn't rise to level of violation it would've been reported.

Another exhibit. It's an email from a lieutenant colonel. It provides report of person who was temporarily detained by marines. According to report, person was detained approximately 25 minutes.

DOJ: Why did it take so long for DHS/law enforcement to show up to take custody? Sherman: It was 12:45, lunch hour traffic...Also long line at screening area where people come in to building. DOJ: So law enforcement officials nearby, but they were busy? Sherman: Correct

DOJ: Do you believe the conduct that day violated the PCA? Sherman: I do not

DOJ: What do you consider when you decide whether to approve request for assistance from federal law enforcement? Sherman: First is legal review to ensure request wouldn't violate PCA and standing rules of engagement, then review to ensure way they conduct op will protect troops..

Breyer interrupts to announce that we're going to take a recess. Back at 5 to 11 am PT....or, 5 to 2 pm ET. I'm going to grab a bite to eat. In the meantime, if you appreciate our courts coverage, I hope you'll consider supporting our work! Back soon. givebutter.com/journalism

Ok, we're back! (Sorry, I'm back a few minutes late from lunch 😅.) Don't worry, you haven't missed any fireworks. Sherman is back, and DOJ is walking him through some more exhibits regarding TF51 operations in CA.

Ok, now the state of California is up for cross examination. I *think* (but not entirely certain, as I can't see her) that this is Jane Riley for CA. She examined Sherman for the state yesterday.

We're talking about the document with the prohibited items highlighted in red (re: crowd control, riot control, traffic control, etc). It was the subject of much discussion earlier, in which Breyer asked Sherman about his understanding of the legal authority to do those otherwise prohibited acts

Riley to Sherman: Did you ever receive any legal advice from anyone that if TF51 engaged in the activities highlighted in red that it would constitute a PCA violation?

Sherman gives a long answer. He says as he understood it was the president through his memo said there was a type of rebellion that prevented fed law enforcement from doing their jobs. That triggered the constitutional exception that allowed for guarding of facilities and protecting law enforcement

Sherman continues: And only in those two instances, these were areas in the discussion that you could participate in. We could have soldiers that could help on this to protect either federal facilities or federal law enforcement. That's the legal advice her received...

Riley: Was there ever anyone during the deployment who advised you that if Task Force 51 engaged in the four activities listed in red, it would be a PCA violation even though Trump issued his proclamation? Sherman: No, I never received that legal advice

Riley is now asking Sherman about Trump statements made yesterday re: deployment of national guard in DC. She starts to play a video of Trump's comments. "We have other cities that are very bad...." he begins. Then the video cuts off? Or perhaps there are technical difficulties...

Yep, technical difficulties. Classic. Breyer is discussing how to proceed with counsel. Maybe show it to witness on iPhone, he suggests.

Ok now we can faintly hear Trump: Baltimore is so far gone, something about Oakland...DC...we're gonna clean it up real quickly. Quickly, as they say. Riley asks if Sherman has heard of additional deployments to Oakland, other CA cities. He says no, hasn't heard that. With that, Riley is done.

The government has no further witnesses. Breyer announces that we have concluded testimony for today, and we'll recess until 1 pm PT (4 pm ET). When the parties return, he'll hear argument from the parties on evidentiary matters. I'll be back then!

We're back! The state of California is up first. I don't know who it is because she doesn't introduce herself. Attorneys introduce yourselves for the audience at home please!! We can't see you!!

Ok, attorney I'll call "CA" is arguing on behalf of the state. The journey began on June 6 when ICE began enforcement actions across LA. In response, people exercised their rights to protest. Mostly peaceful, but some violence. Newsom responded to violence quickly.

CA: But that wasn't enough for President Trump. He responded by issuing proclamation, and Hegseth deployed nearly 5,000 soldiers. That's larger than entire force in Afghanistan in 3 months after 9/11.

CA: Task Force 51 Deputy Chief of Staff Harrington testified that he raised this issue of PCA to the commanding general, and all in that meeting agreed that as soon as California's National Guard troops were called into federal service, they would be subject to the Posse Comitatus Act.

CA: So defendants started looking for a way around the law. They coached federal law enforcement agencies to substitute the word "protection" for "security" when submitting requests for assistance in an attempt to legitimize their violations.

CA: For all the pretense defendants have tried to employ, the facts are inescapable the activities defendants have ordered Task Force 51 troops to engage in across Southern California violate the Posse Comitatus Act. They provided armed security, set up roadblocks, blocked access to public streets

CA: They engaged in a militaristic display of force in a public park, and federalized National Guard members have accompanied ICE on as many as 75% of ICE's daily operations. California residents have been forced to endure the anxiety and fear caused by the pervasive presence of this army....

After CA goes over some history of the Posse Comitatus Act, she explains that courts have considered three tests to determine whether a PCA violation has occurred. First, whether civilian law enforcement agents made direct active use of military personnel to execute the laws.

Second, whether use of any part of the military pervaded the activities of civilian law enforcement agents. And third, whether military personnel subjected citizens to the exercise of military power, which was regulatory, prescriptive or compulsory in nature. Showing 1 of any 3 would violate PCA

CA: Simplest way to think about this test is as follows: if defendants are engaged in one of the prohibited activities listed in DoD Instruction or in the standing rules for the use of force, then, by their own definitions, they are engaged in direct, active law enforcement.

CA: And the evidence shows that defendants have engaged in at least three categories of direct active use. First, security functions. Second, forming armed perimeters and blockades, and third, apprehending and detaining civilians

CA: Beginning with security functions, defendants have repeatedly stated that the military is there to protect federal personnel and property. What they really mean indeed is that they are using the military to operate as a force multiplier for federal law enforcement and to provide armed security

CA: Example of this is in the Carpinteria operation. Sherman testified that the military was involved in that operation, because without the military, federal law enforcement would have needed to station more of their personnel at traffic control points, meaning operation would have taken longer

In addition, these security functions have included general crowd control, conducting surveillance and security for Homeland Security Investigations, and providing security to ICE agents, but defendants own regulations and guidance make clear that the military may not serve security functions.

Next, we've seen numerous photos and even video of the military creating perimeters and blockades to stop civilians from entering public roads, in spaces where ice is conducting raids and arrests. Troops have formed these perimeters in Mecca, in Carpinteria...

CA: Again, defendants have tried to claim these are not, in fact, perimeters, but the court can see for itself what is happening here. There is only one reason to have troops stand in a line like this with their shields up, and that's to block people from passing the line...

Finally, the military has apprehended or detained at least two civilians. On June 13, a marine detained and restrained with a veteran who was attempting to access the VA. General Sherman testified that there were federal law enforcement nearby at the time, but they were busy because it was lunchtime

And second, on July 10, National Guard troops apprehended a protester in Carpinteria. We did play this video for Your honor yesterday, but I'm going to see if we can successfully play it again. [She plays the video]

Defendants have tried to reframe their activities as indirect support and protection of law enforcement, rather than direct and active law enforcement. The evidence I just discussed makes clear that's not true, even if it were, these activities would still satisfy the 2nd test bc they are pervasive.

The military in CA are so intertwined with ICE and other civilian law enforcement agencies that they are practically indistinguishable. Indeed, the military and law enforcement even look the same, often wearing uniforms so similar that it is nearly impossible for civilians to tell them apart.

Soldiers are embedded with the agents themselves. The reason for this could not be clearer: The federal government wants a display of military force so great that any lawful opposition to their agenda is effectively silenced.

Moving to the third test, defendants are using the military to subject citizens to regulatory, prescriptive or compulsory military power, as you can see in the videos and photos we've been looking at. The military has restricted civilians freedom of movement...

CA: There can be no question that the occupation of a civilian city by nearly 5000 troops for 60 days will have and has had a prescriptive effect on that population. That is exactly the kind of standing army the Founding Fathers feared...

CA: These activities, while unlawful, might be viewed as isolated incidents, but together, they exhibit a pattern and practice by defendants dead set on occupying Southern California, intimidating Californians and using the military to both expedite their agenda and deter any opposition to it

We heard a lot from General Sherman about a mysterious constitutional exception to the PCA. But every time General Sherman referred to that constitutional exception, he referred to what the President and the Sec Def did. But neither the president nor the Sec Def can create an exception to the PCA...

What's more, if the military may jump to the aid of federal law enforcement any time and any place there is the remotest risk that an issue may develop...then there would be no meaningful difference between the military and the law enforcement they purport to protect.

CA: Defendants have not stopped with Los Angeles. On the very morning this trial began, defendants deployed the National Guard to Washington, DC. In doing so, Secretary of Defense Hegseth said that this is nothing new for DOD...Los Angeles is just the beginning.

CA: Your Honor should issue injunctive relief to ensure that defendants do not continue to violate the law for even one day more. Defendants have made clear for the duration of this case that they have no intention of changing or curtailing their activities.

CA: There has been a standing army in LA for two months. Defendants have used that army to pervade the activities of civilian law enforcement and strike fear into the hearts of Californians. In doing so, they have disregarded America's deep rooted policy against military execution of the laws...

CA: For those reasons, the state of California asks that the court issue a permanent injunction and bring a halt to defendants unlawful military crusade across this state. Thank you.

Eric Hamilton is now up for DOJ. Breyer, rather than allow him to launch into his prepared remarks, says he wants to start with a question.

Judge Breyer: Is there any limitation to use of the military in an operation which is being conducted by federal agents. For example, does there have to be a threat? That's one thing. Second, he continues, does there have to be some evaluation of the threat in terms of the consequences of it?

Third, Judge Breyer continues, is there anything as to the adequacy or the inadequacy of local law enforcement addressing that threat. Can you answer those questions? Hamilton says he can.

Hamilton: There's nothing in the PCA that says there has to be some pre-operation threat assessment or says that the threat has to be at a particular level. The Guard was federalized in early June bc of "violent protests" in LA, and we've seen at trial evidence of violence that persisted into July.

Hamilton: We developed evidence from Camarillo, where there was no national guard sent with the federal law enforcement officers initially. It was only after there was violence, with individuals popping car tires and things of the sort, that the National Guard arrived.

Hamilton continues: So that shows the weakness in any sort of inquiry that would hinge on a pre operational security assessment. And the limiting principle is the presidential memorandum, sec def memorandum, all the documents we've presented that authorize protective function

Breyer: The question I'm trying to ask is if there's any inquiry or determination made as to whether local law enforcement, including a National Guard under the state control, are adequate to address the particular security concern that exists in a particular area? Is there any inquiry into that?

Hamilton say he's not aware of that. Breyer: There's no evidence in the record that I'm aware of that that inquiry is made... and what I think the federal government's position is is that we don't need to do that. Isn't that correct? Hamilton: Yes, right.

Hamilton, now responding from a series of questions along these lines from Breyer, says that nothing in the text of the PCA requires some sort of a threat determination before a military service member can perform a purely protective function and protect federal law enforcement officers.

Hamilton, now launching into his prepared presentation, says that California's argument essentially is that the president's proclamation effectuated a crime. The PCA is a criminal statute, he explains.

Hamilton goes through the elements. First is willfulness. There's a state of mind element in the sentence. And the second element is use. So there has to be a willful use of military service members, he says. The third element is that that willful use has to be as a PCA violation

Hamilton says there are constitutional exceptions to the PCA for protection of federal property, functions and personnel. It's distinct in that by providing a protective power by itself, there isn't even a PCA violation in the first place because of that purpose.

Hamilton: If the purpose is the protection of law enforcement officers, it isn't law enforcement in the first place, it's instead protection. Then on top of that, there's the fact that a constitutional, inherent protective power is at work that is itself an exception to PCA.

Hamilton mentions a DOD memo to the Northern Command that stated that the military "may provide such crowd control measures as are reasonably necessary to ensure the execution of federal functions and the safety of federal personnel..."

Breyer interjects with a question about this: My question is as to that, when you say "necessary," are you including within it the inability or unwillingness of the state to act in that capacity? That's my question. Are you yes or no? Hamilton: I'm not aware of evidence on that at trial.

Breyer: There's no evidence presented that the sheriff's office, the police department, were unable or unwilling to provide protection. There's no evidence in the record of that, is there? Hamilton disagrees, mentions Santacruz testimony about June violence in LA

Now Hamilton starts to respond to various factual scenarios cited by plaintiffs as PCA violations. For example: detention of man going to VA by marines.

Hamilton: It was a temporary detention that lasted for about 25 minutes...The person approached the boundary set to secure the building. The individual didn't stop. He didn't provide ID, he didn't say why he was there. Instead, he went right through the checkpoint. That's why he was stopped

Hamilton: Another item discussed was the concept of perimeters. The plaintiffs cited an 8th circuit case from 40 years ago. Very different circumstances. 10 week standoff involving a perimeter in Wounded Knee. Here, unlike there, no evidence of soldiers preventing people from leaving

Hamilton: Court also heard testimony about MacArthur Park. 20 minutes total. No interactions with civilians. No engagement in law enforcement operations. National guardsmen didn't even leave vehicles.

Hamilton tries to distinguish the DC situation from the LA situation on grounds that a different set of laws are at issue in each. Breyer says: I think the point of showing the Trump remarks was his suggestion that the guard might be used the same way in Oakland.

Hamilton: To recap, there's testimony by Santacruz and General Sherman that there was no law enforcement operations carried out by the military. So I return to the standard of an ultra vires claim. No evidence to support the lawless agency action or clear departure from statutory mandate...

[Hamilton also says the plaintiff's claim fails on standing grounds]. For these reasons, he concludes, the court should deny the plaintiff's motion for a preliminary injunction. The court reporter needs a recess. So we're taking a brief break.

Ok, we're back. The state of CA is making some points in rebuttal. Addressing the government's reliance on an inherent "protective power" exception to the PCA, she says this is contrary to the requirement for an EXPRESS exception, either statutory or constitutional, in the PCA

Further, the state of CA argues that the evidence shoulds the military is performing a protective function. She cites the MacArthur Park operation and the risk of inaction assessment. These actions simply weren't necessary, she says.

CA: I just want to make sure it's clear that we focused on four events in this trial to give your honor real examples to sink your teeth into. But we've also shown you photos and evidence from across Los Angeles. It's not limited to just these four incidents.

CA: Because at the end of the day, this is a pattern in practice by the military. Every order in every operation the military has engaged in in Southern California runs from the orders that have come from the very top, the Secretary of Defense... And that's why YH should grant our PI request.

And that's it for argument on the evidence. Tomorrow we'll continue with argument on the legal issues, Breyer says. Things like ultra vires standard, nature of PCA action since it's a criminal action, standing, etc. We'll start at 9 am PT tomorrow.

Court is done for the day, and so am I. I'll see you tomorrow for the final day of the bench trial. In the meantime, if you appreciate our work @lawfaremedia.org, I hope you'll consider supporting our non-profit newsroom! Tysm to those who already have. givebutter.com

The state of California is seeking to enjoin Trump's use of the military for law enforcement purposes. Judge Charles Breyer just took the bench to hear legal argument from the parties. I'm covering for @lawfaremedia.org. Follow 🧵⬇️

Yesterday, we wrapped up witness testimony and heard argument on the evidence from the state and the Trump administration. Today, the parties are addressing legal issues. Things like standing, the relevant standard for PCA violations, etc. Catch up on yesterday below:

Eric Hamilton is up first for DOJ. He notes the Posse Comitatus Act (PCA) is a criminal statute and says the court would lack jurisdiction to enter any sort of injunction against the President. And the plaintiffs haven't established a record that the proclamation signed on June 7 violated the PCA