During the turbulent summer of 2020, President Donald Trump raged at his military and legal advisers, calling them “losers” for objecting to his idea of using federal troops to suppress outbreaks of violence during the nationwide protests over the police murder of George Floyd.
It wasn’t the only time Trump was talked out of using the military for domestic law enforcement — a practice that would carry profound implications for civil liberties and for the traditional constraints on federal power. He repeatedly raised the idea of using troops to secure border states, and even proposed shooting both violent protesters and migrants living in the country illegally in the legs, former aides have said.
In his first term in office, Trump never realized his expansive vision of using troops to enforce the law on U.S. soil. But as he has sought a return to power, he has made clear that he intends to use the military for a range of domestic law enforcement purposes, including patrolling the border, suppressing protests that he deems to have turned into riots and even fighting crime in big cities run by Democrats.
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“In places where there is a true breakdown of the rule of law, such as the most dangerous neighborhoods in Chicago, the next president should use every power at his disposal to restore order — and, if necessary, that includes sending in the National Guard or the troops,” Trump said at a conservative conference in Dallas in August 2022, shortly before announcing that he was running to be that next president.
During his time out of power, allies of Trump have worked on policy papers to provide legal justifications for the former president’s intent to use the military to enforce the law domestically. In public, they have talked about this in the context of border states and immigrants in the country illegally. But an internal email from a group closely aligned with Trump, obtained by The New York Times, shows that, privately, the group was also exploring using troops to “stop riots” by protesters.
While governors have latitude to use their states’ National Guards to respond to civil disorder or major disasters, a post-Civil War law called the Posse Comitatus Act generally makes it a crime to use regular federal troops for domestic policing purposes.
However, an 1807 law called the Insurrection Act creates an exception to that ban. It grants presidents the emergency power to use federal troops on domestic soil to restore law and order when they believe a situation warrants it. Those federal troops could either be regular active-duty military or state National Guard soldiers whom the federal government has assumed control over.
The Insurrection Act was last invoked in 1992, when President George H.W. Bush sent troops to help suppress riots in Los Angeles following the acquittal of white police officers who had been videotaped beating a Black motorist, Rodney King. In that case, however, the governor of California, Pete Wilson, and the mayor of Los Angeles, Tom Bradley, had asked for federal assistance to restore order.
But parts of the Insurrection Act also allow presidents to send in troops without requiring the consent of a governor. Presidents last invoked the act to deploy troops without the consent of state authorities in the late 1950s and early 1960s during the Civil Rights Movement, when some governors in the South resisted court-ordered school desegregation.
Trump has boasted that, if he returns to the White House, he will dispatch forces without any request for intervention by local authorities. At a campaign rally in Iowa last year, for example, he vowed to unilaterally use federal forces to “get crime out of our cities,” specifically naming New York, Chicago, Los Angeles and San Francisco as “crime dens” he pointedly noted were run by Democrats.
“You look at what is happening to our country — we cannot let it happen any longer,” Trump said. “And one of the other things I’ll do — because you are not supposed to be involved in that, you just have to be asked by the governor or the mayor to come in — the next time, I am not waiting.”
Anthony Romero, executive director of the American Civil Liberties Union, said that, as part of his group’s contingency planning for how to resist what it sees as potential risks from any second Trump administration, it is drafting lawsuits to challenge invocations of the Insurrection Act against protesters. He said the group sees it as likely that Trump would be drawn to the authoritarian “theatrics” of sending troops into Democratic cities.
“It’s very likely that you will have the Trump administration trying to shut down mass protests — which I think are inevitable if they were to win — and to specifically pick fights in jurisdictions with blue-state governors and blue-state mayors,” he said. “There’s talk that he would try to rely on the Insurrection Act as a way to shut down lawful protests that get a little messy. But isolated instances of violence or lawlessness are not enough to use federal troops.”
In a statement, a Trump spokesperson, Karoline Leavitt, said, “As President Trump has always said, you can’t have a country without law and order and without borders. In the event where an American community is being ravaged by violence, President Trump will use all federal law enforcement assets and work with local governments to protect law-abiding Americans.” She added that he was committed to “using every available resource to seal the border and stop the invasion of millions of illegal aliens into our country.”
Trump has long been attracted to the strongman move of using military force to impose and maintain domestic political control. In a 1990 interview with Playboy, he spoke admiringly about the Chinese Communist Party for displaying the “power of strength” a year earlier when it used troops and tanks to crush pro-democracy protests in Beijing’s Tiananmen Square.
Many years later, at a 2016 Republican primary debate, he claimed that his comments in that old interview did not mean he actually endorsed the crackdown. But then, as he continued talking, he described the Tiananmen Square demonstration as a riot: “I said that was a strong, powerful government. They kept down the riot. It was a horrible thing.”
Seeking a Show of Strength
In 2020, the videotaped killing of Floyd, a Black man, by a white police officer in Minneapolis, Derek Chauvin, sparked racial justice protests. Peaceful demonstrations sometimes descended into rioting — especially when anarchists hijacked some of the protests as an opportunity to set fires, smash store windows and take other destructive actions. This was especially visible in Portland, Oregon, where the Department of Homeland Security flooded the streets with hundreds of federal officers, many not wearing any identifying insignia.
During a stormy protest in Washington, D.C., centered in Lafayette Square outside the White House, protesters knocked over barricades. The Secret Service whisked Trump away to take shelter in a bunker underneath the White House. Attorney General William Barr later wrote in his memoir that Trump was enraged — in part by the violence but “especially the news reports that he was taken to the bunker.” He wanted to make a show of strength as the world watched.
Because Washington is a federal enclave, not a state, it has no governor, and its National Guard always reports to the Pentagon. The secretary of defense, Mark Esper, sent National Guard forces to support the Park Police and other civilian agencies protecting federal buildings — and, to particular controversy, National Guard helicopters swooped frighteningly low over crowds of people.
But civilians remained in control of the response in the nation’s capital. Trump wanted to instead put the military directly in charge of suppressing violent protesters — and to use regular, active-duty troops to do it. Members of his legal team drew up an order invoking the Insurrection Act in case it became necessary, according to a person with direct knowledge of what took place. But senior aides opposed such a move, and he never signed it.
Barr later wrote that he and the acting Homeland Security secretary had thought using regular troops was unnecessary, and that Esper and the chair of the Joint Chiefs of Staff, Gen. Mark Milley, had “recoiled at the idea, expressing the view that regular military forces should not be used except as a last resort, and that, absent a real insurrection, the military should not be in charge but should provide support to civilian agencies.”
As Trump nevertheless publicly threatened to put the regular military in the streets across the country, Milley issued a memo on June 2, 2020, to top military leaders saying that every member of the military swears an oath to uphold the Constitution and its values, including the freedoms of speech and peaceful assembly.
The next day, on June 3, Esper contradicted Trump from the Pentagon podium, saying: “The option to use active-duty forces in a law enforcement role should only be used as a matter of last resort, and only in the most urgent and dire of situations. We are not in one of those situations now. I do not support invoking the Insurrection Act.” Trump was outraged, seeing this as an act of defiance. He fired Esper that November.
In a comment for this article, before President Joe Biden dropped out of the 2024 campaign, Esper pointed to his earlier remarks, adding: “I think the same standard applies going forward, whether it is a second term for Biden, Trump or for any other future president.”
Back in 2020, the protests or riots eventually ebbed, without any use of regular troops or Trump federalizing a state’s National Guard. But on the 2024 campaign trail, Trump has rewritten that history, falsely bragging that he personally sent troops into the streets of Minneapolis, who quelled violence there.
In reality, it was Gov. Tim Walz of Minnesota — now the presumptive Democratic nominee for vice president — who ordered his state’s National Guard to briefly deploy in Minneapolis. Trump did not direct and was not responsible for the operation.
In a 2021 interview, Walz recalled consulting with Milley and Esper about his decision to use the state’s National Guard at a time when they were resisting Trump’s desire to send in federal troops — a step that Walz said would have made the situation worse by exacerbating the anger of people protesting a police murder.
“It was critically important that civilian leadership was seen as leading this, and that the face forward needed to look like your state, it needed to be the National Guard, it needed to be those local folk,” he told authors Jonathan Martin and Alexander Burns.
However, Walz has faced criticism from some quarters for moving slowly to deploy the National Guard when some protests in Minneapolis became riots.
Troops at the Border
Trump has broken with his former subordinates who raised objections to his desire to use federal troops that summer. Those who have stuck with Trump are working to ensure that a second administration would not contain politically appointed officials or lawyers who would be inclined to see it as their duty to constrain his impulses and desires — one of several reasons a second Trump presidency is likely to shatter even more norms and precedents than the first.
Indeed, even by the standards of various norm-busting plans Trump and his advisers have developed, the idea of using U.S. troops against Americans on domestic soil stands apart. It has engendered quiet discomfort even among some of his allies on other issues.
Most of the open discussion of it by people other than Trump has focused on the prospect of using troops in border states — not against American rioters or criminals, but to arrest migrants suspected of trying to enter the country illegally and better secure the border against illegal crossings.
In recent years, administrations of both parties — including Biden’s — have sometimes used the military at the border when surges of migrants have threatened to overwhelm civilian agents. But the troops have helped by taking over back-office administration and support functions, freeing up more Immigration and Customs Enforcement and Border Patrol agents to go into the field.
The idea Trump and his advisers are playing with is to go beyond that by using regular troops to patrol the border and arrest people.
In an interview with the Times last fall, Stephen Miller, Trump’s top immigration adviser, said Trump’s plans for an unprecedented crackdown on immigration included invoking the Insurrection Act to use troops as immigration agents.
And, in its 900-page policy book, Project 2025 — a consortium of conservative think tanks that is working to develop policy proposals and personnel lists to offer Trump should he win the election — has a brief line saying regular troops “could” be used at the southwest border for arrest operations in the context of tackling drug cartels.
But the book has no further analysis or discussion of the idea, and Project 2025 is not substantively engaging with the idea of invoking the Insurrection Act in any context, according to multiple people with knowledge of the effort who spoke on the condition of anonymity.
“Insurrection — Stop Riots ** — Day 1, Easy”
Regular troops are generally trained to operate in combat situations, not as domestic law enforcement, which heightens the risk of serious and, at times, even fatal mistakes — as happened when a Marine on an anti-drug surveillance team assisting the Border Patrol shot and killed an American teenager near the border in 1997.
For that reason, the idea of using regular troops to enforce the law on domestic soil — especially away from the border — crosses a line that gives even some in the conservative think tank world pause. Policy development work on using the Insurrection Act has joined a small number of other policy ideas circulating in Trump’s orbit, like disengaging with NATO, that are too radioactive to gain a consensus among the conservatives involved in Project 2025.
Instead, legal and policy development work on ideas that are too radical even for Project 2025 are being handled elsewhere, including at a Trump-aligned think tank called the Center for Renewing America that is run by Russell Vought, who was Trump’s White House budget chief.
An early 2023 email from a member of the center’s staff listed 10 agenda topics for papers that the center planned to write on legal and policy frameworks. An introduction to the email said the goal was to “help us build the case and achieve consensus leading into 2025.” The email went on to circulate more broadly, and the Times reviewed a copy.
The email placed each topic into one of three categories. One set involved Congress. A second involved “broader legal” issues — including “Christian nationalism” and “nullification,” the pre-Civil War idea that states should be able to negate federal laws they don’t like. The third category was “day one” ideas, meaning those whose legal frameworks were well established, and which could be put into effect by a president unilaterally.
No. 4 on the list: “Insurrection — stop riots ** — Day 1, easy.”
The Center for Renewing America has since published papers about several other agenda items on its list, including arguing that a 1974 law banning presidents from impounding funds — or refusing to spend money Congress has appropriated for things the White House dislikes — is unconstitutional (No. 1 on the list) and advocating for the elimination of the post-Watergate norm of Justice Department investigative independence from the White House (No. 5).
The center has not published any paper on invoking the Insurrection Act to use troops to suppress violent protests. But earlier this year, it published a paper on a closely related topic: invoking that law to use troops in southwest border states to enforce immigration law. The paper was co-written by Ken Cuccinelli, the acting deputy Homeland Security secretary in the Trump administration.
While the paper focuses on border security, most of its legal analysis applies to any situation in which a president deems the use of troops necessary to suppress lawlessness. It laid out extensive arguments for why the Insurrection Act provides “enormous” leeway for the president to use regular troops directly to make arrests and enforce the law.
It also cited a sweeping Justice Department memorandum written after the attacks of Sept. 11, 2001, by John Yoo, a George W. Bush administration lawyer with an idiosyncratically broad view of presidential power. Yoo had argued that the Posse Comitatus Act could not stop a presidential decision to use the armed forces domestically to combat terrorist activities.
In a statement responding to the Times’ reporting, Rachel Cauley, a spokesperson for the Center for Renewing America, said, “Thank you for confirming that we have made it a priority to articulate that the president has the legal authority to use the military to secure the border.”
While the center’s statement — like its paper — framed the prospect of using troops on domestic soil in the context of securing the border, not suppressing anti-Trump protests, Vought was more expansive in a hidden-camera video released this past week by a British journalism nonprofit, the Centre for Climate Reporting, which spoke with him while deceptively posing as relatives of a wealthy conservative donor.
“George Floyd obviously was not about race — it was about destabilizing the Trump administration,” he said. “We put out, for instance, a 50-page paper designed for lawyers to know that the president has, you know, the ability both along the border and elsewhere to maintain law and order with the military and that’s something that, you know, that’s going to be important for him to remember and his lawyers to affirm. But we’ve given them the case for that.”
Blurry Lines
Trump and his campaign have tried to distance themselves from Project 2025 and other outside conservative groups, saying that only policy proposals endorsed by the campaign count. Leavitt said, “As President Trump and our campaign has repeatedly stated, outside groups do NOT speak for him. The ONLY official second-term policies are those that come directly from President Trump himself.”
Still, as a matter of substance, the lines between Project 2025’s work, the materials being developed separately by the Center for Renewing America and the Trump campaign can be blurry.
For example, Vought has also been in charge of one of the most important components of Project 2025: drafting executive orders and other unilateral actions Trump could take over the first six months in office. Vought also remains personally close to Trump. And the Republican National Committee, which Trump controls through allies, including his senior campaign adviser, Chris LaCivita, and his daughter-in-law, Lara Trump, put Vought in charge of the committee that developed the party’s platform.
That platform calls for “moving thousands of troops currently stationed overseas to our own southern border” to secure it against migrants.
At the Center for Renewing America, Vought has also hired Jeffrey Clark, a former Justice Department official in the Trump administration who was indicted in Georgia on charges of working with Trump to help overturn the 2020 election.
Clark wrote the center’s paper laying out a legal framework for why the president can take direct control of Justice Department investigations and prosecutions, and was appointed to co-lead Project 2025’s Justice Department policy efforts.
The federal indictment of Trump, which deems Clark an unindicted co-conspirator, recounts how a White House lawyer told Clark that there had not been outcome-changing election fraud — and warned that if Trump nonetheless remained in office, there would be riots in every major city in the United States.
“Well,” Clark responded, according to the indictment, “that’s why there’s an Insurrection Act.”
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