The Trump administration will be allowed to continue its National Guard deployment in D.C. at least temporarily, pending another appeals court decision, a panel of U.S. Court of Appeals judges said Thursday.
The ruling means the deployment of troops to the nation’s capital could persist beyond Dec. 11, the date a lower-court judge had previously set as a deadline for the administration to halt the mission.
Judges with the D.C. Circuit of the U.S. Court of Appeals granted an administrative stay in the case, meaning the drawdown of troops in the capital will be delayed at least until the appeals court makes an additional ruling. The court emphasized that Thursday’s decision had nothing to do with the merits of the Trump administration’s arguments in the case.
“The purpose of this administrative stay is to give the court sufficient opportunity to consider the motion for stay pending appeal and should not be construed in any way as a ruling on the merits of that motion,” the judges wrote.
The appeals court ruling comes the week after an attack in which prosecutors say a man targeted National Guard members, killing one and critically injuring another in a busy downtown area of D.C. blocks from the White House. For Trump administration officials, the attack – allegedly carried out by a lone gunman who was resettled in the United States from his native Afghanistan after work for a CIA-backed counterterrorism squad – only deepened their resolve to keep the troops in the capital city.
Trump called for an additional 500 troops; South Carolina’s governor said this week he would send up to 300 members of his state’s National Guard in response.
“Our warriors are strong and we will not back down until our capital and our cities are secure,” Pentagon press secretary Kingsley Wilson said at a news briefing Tuesday.
For D.C. Attorney General Brian Schwalb, who sued the Trump administration in September over the National Guard deployment, the shooting and its aftermath offered further proof that the deployment of troops was ill-advised and unsafe. D.C. police officers have since paired up with National Guard troops for the troops’ safety, potentially diverting officers from other public safety tasks, he said in a court filing this week.
“The deployment impinges on the District’s home rule, requires the diversion of scarce police resources, and exposes both the public and Guard members to substantial public safety risks, as Defendants themselves acknowledged at the outset of the deployment, and as the horrific attack on two National Guard members last week tragically underscored,” Schwalb wrote.
President Donald Trump deployed the D.C. National Guard to city streets on Aug. 11 as part of a broader crime crackdown he initiated in the city. He also took temporary control of the D.C. police department and launched a surge of federal law enforcement into D.C. neighborhoods. Multiple Republican governors heeded Trump’s call for reinforcements and sent troops from their National Guards to the District. As of Wednesday, about 2,300 National Guard members were stationed in the city – about 100 more than the previous day.
The National Guard members have stood watch at Metro stations and picked up trash at national parks. They also carry weapons and have been instructed to use them only as a last resort.
Unlike in states, where governors control their National Guards, the president is commander in chief of the D.C. National Guard – a role the administration argues gives Trump vast power over the deployment and legally authorizes his actions in the District. But Schwalb, in his lawsuit, has argued that the president’s power over the Guard has limits. Schwalb also has alleged that the troops in D.C. have been illegally engaged in law enforcement, in violation of a federal law that prohibits military troops from engaging in domestic policing.
In November, U.S. District Judge Jia M. Cobb sided with D.C. in a preliminary ruling, writing that the National Guard deployment was illegal and that Trump lacked the authority to activate the Guard for the mission. Cobb ordered the Trump administration to halt the deployment in D.C. while litigation continued over whether the troops should be permanently withdrawn. However, she delayed her order from going into effect until Dec. 11 to give the Trump administration time to appeal.
In response, the administration asked an appeals court for an emergency ruling to allow the deployment to continue while litigation continues, arguing in court documents that Cobb’s order “impinges on the President’s express statutory authority as Commander-in-Chief of the D.C. National Guard and impermissibly second-guesses his successful efforts to address intolerably high crime rates in the Nation’s capital.” The appeals court on Thursday did not rule on that request; the administrative stay means the deployment can continue while the appeals court considers it.
The Trump administration has argued that the troops have not been engaged in city law enforcement and merely deter crime through their presence, freeing up police for other tasks.
Questions of the mission’s safety implications have taken on new weight in the aftermath of last week’s attack, but each party in the lawsuit has argued that the city would be safer if the court sided with them.
A group of retired senior military officers and the Vet Voice Foundation, a nonpartisan, nonprofit organization representing veterans and their supporters, filed a brief in the appeals court that they said was “in support of neither party.” They argued that the use of the National Guard in D.C. “threatens to undermine the apolitical reputation of the military as an institution, places service members in situations for which they are not specifically trained, and pulls the Guard away from its critical missions.”
But attorneys general from 24 Republican-led states – including some that sent their troops to D.C. – argued that crime is high in D.C. and while the mission “has already produced strong results,” there is more to be done. Violent crime is down 28 percent in D.C. compared to last year, although crime in the city began to fall steeply well over a year before Trump surged federal law enforcement in August.
“Danger still lingers,” the states’ attorneys general wrote in their brief, filed in support of the Trump administration. “Just last week, an Afghani national committed a heinous terror attack, shooting two National Guardsmen at close range and murdering one.”
In arguing that the Guard troops should stay, they also cited a few actions that Guard members had taken to keep the city safe.
“National Guard troops have stopped at least one fight near the metro,” they wrote, “helped provide first aid to elderly residents of the district, and aided in the successful search for a missing child.”
