Trump Forced Into Surprise Criminal Trial Starting Now

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1:26Michael Popok:The criminal trial against the Trump administration that starts today, this week, in Judge Breyer's courtroom in San Francisco is just not getting enough attention. It's historic. It's unprecedented. It's the first case against an administration under the Posse Comitatus Act of 1878, because the allegations by Governor Newsom against the Trump administration are that by using federal troops on the ground in California for civilian enforcement operations during the protests related to Donald Trump's immigration policy, That wasn't just authorized by the federalization or the commandeering statutes about when a president can commandeer the use of state National Guard.

2:18Michael Popok:It crossed the line and became a violation of the Posse Comitatus Act, for which that is not an exception. You're not going to be confused when I'm done with this hot take. The trial starts this week. I'm going to be doing daily updates about what's happening in the courtroom. There's no jury, only Judge Breyer, the brother of retired Supreme Court Justice Stephen Breyer. And you're on the Midas Touch Network and on Legal AF. I'm Michael Popok. Let me give you the update, chomping at the bit to start on this trial. Now, let me back up. A couple of months ago in June, the California Attorney General brought a case into Judge Breyer, you might have heard of, to stop the Trump administration from taking control and command of the California National Guard.

3:12Michael Popok:It's their National Guard. There are limited exceptions when the federal government and the commander-in-chief can take control of it to commandeer it. California argued those exceptions were not present. Trump argued that they were, that he needed, among other things, federal troops to help him execute federal law that was being interfered with on the ground by protesters. And that was the argument. Judge Breyer, the trial court judge, after hearing argument and reading the briefs, ruled against the Trump administration originally. Well, actually, he ruled against the Trump administration. And he ruled that what Trump was doing was unconstitutional.

3:52Michael Popok:He ruled that it was a violation of the 10th Amendment. These are powers reserved to the state. It violated the commandeering statute about when the circumstances that are limited that you can take over a state National Guard. He did not, however, and this is very important for this hot take, he did not rule on the Posse Comitatus Act violation alleged by California. So what went up on appeal to the Ninth Circuit by way of Donald Trump did not have the posse comitatus part. It only had the findings that had violated the commandeering statute, section 1246. That's what went up to the three-judge panel of the Ninth Circuit, which ultimately reversed the injunction issued by Judge Breyer on the commandeering of the National Guard issue only.

4:44Michael Popok:And it was a three-judge panel, two Republicans, one Trumper and a Biden appointee, but 3-0, they said Breyer was wrong on that issue. But they did not discuss the posse comitatus because appellate courts can only talk about and address those things that were handled below. If it's not briefed below, if it's not addressed below, the trial judge is in the first position to make a ruling. So that happened. And we said at the time, but the posse comitatus Act issue is still present. Okay, let me read to you what the Posse Comitatus Act currently embodied and memorialized in a U.S. Code 18 U.S.C. 1385, what it provides.

5:29Michael Popok:Then I'll tell you where it came from, and then I'll tell you what's going to happen at this trial this week. Whoever accepted cases under circumstances expressly authorized by the Constitution or an act of Congress, willfully uses any part of the army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years or both. Came out of an 1878 post-Reconstruction period after the Civil War. It was a way to resolve an election issue where the southern states of the former Confederacy were worried and continued to be worried that the Union, well, now the Union had been put back together again, but that the Northern troops, the federal troops would forever be present in their communities enforcing the law.

6:24Michael Popok:And they did not want that. So Congress said, all right, we'll appease you in this area. We'll assure you that federal troops will not be used on domestic soil for law enforcement purposes. And they set up this fine and imprisonment function. It's never been tested before. It's from 1878. No president has ever tried to violate the Posse Comitatus Act. Question is, it runs up, as you can see, against a couple of interesting doctrines. The war powers of a commander in chief, the fact that appellate court has already ruled that he's allowed to commandeer the National Guard, but that's a separate issue for whether he can use the U.S.

7:05Michael Popok:military troops along with the National Guard. And then three, the immunity decision, the criminal immunity decision that the

7:15Michael Popok:United States Supreme Court granted all presidents, mainly Trump, if he violates a criminal code while he's in office. He had immunity. You ever notice the signs of getting older, creeping in? Poor sleep, low energy, maybe a little brain fog or stiffness that didn't used to be there. Same here. And healthy aging is something I've been thinking about more than ever. That's why I'm so excited to share with you guys C15 from Fatty15, the first emerging essential fatty acid to be discovered in more than 90 years. It is an incredible scientific breakthrough to support our long-term health and wellness, and you guessed it, healthy aging.

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9:11Michael Popok:So you got a lot of these things circulating, but that doesn't mean that Judge Breyer shouldn't go forward with this trial and shouldn't ultimately determine whether the Posse Comitatus Act was violated, whether Donald Trump has an immunity for it, has an exception for it, has a defense to it. Another story, got to prove the crime first, the crime and the fine first. So that's what's happening this week. Because what Judge Breyer said is, I want evidence. I don't want to rule on this at a preliminary injunction setting. I want a trial. And he set that back in June. That would happen this week in August.

9:46Michael Popok:And here we are. Three-day trial on one side, the California State Attorney General. I'm going to be speaking to the actual Attorney General, Rob Bonta, this week about this case and other matters here on Legal AF. Keep an eye out for that. And on the other side, the Trump administration, you know, one of their lawyers. They're running out of lawyers, but it'll be one of their lawyers. I don't think they'll trot out somebody like John Sauer, who's the solicitor general. I think they'll save him for the appeal. They'll trot out some other senior trial lawyer. And what the judge wants to hear is evidence of the violation, the use of the military on domestic soil as a posse comitatus.

10:24Michael Popok:There's been briefing that led into this. I've read through the briefing. I don't think ultimately the U.S. government did a very good job at arguing that they did not violate it. Their primary argument is we can't violate it. We're the commander in chief. And using the National Guard and commandeering the National Guard provides the exception. And the judge said, no, he denied their motion to dismiss. He says, no, we're going to trial. I want to hear evidence. It's show me pictures, show me evidence. There is plenty of evidence of people being arrested, protesters being arrested by the Marines in handcuffs, detained and arrested.

11:04Michael Popok:That's not what they are supposed to be doing on domestic soil. They want to set up a perimeter around buildings and let the law enforcement or National Guard handle the rest. That's a different story. But like actually doing something affirmatively to make arrests or take down people, that's not the kind of United States that you and I want to live in. Just like the Confederacy states didn't want federal troops on the ground either. And so three days of testimony, three days of evidence. I'm sure most of what Donald Trump's team is going to argue is illegal doctrines. doctrines. Most of what the California team is going to argue is a lot of evidence and facts to make a record.

11:49Michael Popok:The judge is then going to rule. I'm not sure he's going to rule from the bench. There's no jury here at the end of the third day. But sometime in the next week, he's going to issue a ruling. Usually judges that are handling bench trials already have their clerks drafting orders, opinions that they're going to issue subject to whatever they hear at the trial. So it won't be that far after that. And then if he rules against the Trump administration, there's going to be another appeal to the Ninth Circuit Court of Appeals. I think it goes to the same three-judge panel. We'll have to see if that actually happens.

12:26Michael Popok:The three-judge panel was not great for California the first time around on these particular issues, Bennett, Miller, and Sung. But we'll have to see with the Posse Comitatus Act if the facts of the law change matters. Once there's a ruling at the Ninth Circuit Court of Appeals, the loser is going to take a Supreme Court either emergency appeal or a regular docket appeal that'll end up sometime in the first, last quarter of 2025, first quarter of 2026. But it sort of got lost in the shuffle, this first trial against the Trump administration, criminal at that, about the Posse Comitatus Act sort of went under the radar, But don't let it be under the radar here on Midas Dutch.

13:08Michael Popok:We'll follow it here and come over to Legal AF, the YouTube channel. Hit the free subscribe button there as well. I curate that channel, the managing editor of that channel. We got about a dozen contributors. We do about 10 videos every day at the intersection of law and politics. And some combination of me, the other contributors, Adam Klasfeld, who runs All Rise News, just joined us to do regular video contributions. He's following every minute, every hour of the trial. and we'll rely on a lot of his reporting as well. And then, as I said, Rob Bonta, Attorney General for California is going to be joining Legal AF and me for an interview sometime the early part of this week.

13:46Michael Popok:So, you know, come over, subscribe, hit the reminders, everything's for free. It's the way to support our channel. So until my next report, I'm Michael Popak.

14:04Michael Popok:You'll find the court filing and the oral argument there, including a daily roundup that I do call. Wait for it. Morning AF. What else? All the other contributors from Legal AF are there as well. We've got some new reporting. We've got interviews. We've got ad free versions of the podcast and hot takes where Legal AF on Substack. Come over now to free subscribe.