Like It Or Not, The Feds Have Lots Of Control Over Police In D.C. If the president were to bring in troops from neighboring active duty bases, they would need an exemption to the act — and one exemption is the Insurrection Act.
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NPR logo Like It Or Not, The Feds Have Lots Of Control Over Police In D.C.

Like It Or Not, The Feds Have Lots Of Control Over Police In D.C.

U.S. Park Police in downtown D.C. on Monday evening. Tyrone Turner/WAMU hide caption

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Tyrone Turner/WAMU

If you've lived in D.C. long enough, you're probably aware of the alphabet soup of police agencies that operate within city limits. From the better-known Metropolitan Police Department and U.S. Park Police to the lesser-known Bureau of Engraving and Printing Police and Smithsonian Police, if there's a government agency or institution of any size or consequence, it probably has its own cops.

Much of that police power is federally controlled, and there's growing evidence that it's being deployed to help quell what has been three days of peaceful and destructive protests alike against police violence.

While the Secret Service, Park Police, and D.C. National Guard have taken the lead in fending off protesters in Lafayette Park over the last three days, additional agencies including the DEA, the U.S. Bureau of Prisons, and Customs and Border Patrol are adding law enforcement personnel across the city ahead of protests this week.

And that seems to be coming at the behest of President Trump himself, who on Monday called for a much more muscular response to protests across the country.

"In D.C., we're going to do something that people haven't seen before," said Trump during a phone call with governors. "Washington was under very good control, but we are going to have it under much more control. We are going to pull in thousands of people."

Whether it's a wise decision is certainly in dispute, but what's not in dispute is his broad legal authority to do so in the nation's capital. And that starts with the D.C. National Guard.

"Unlike state guards, where there's often a complicated interplay between the governor and the president, the D.C. Guard has a unified command," says University of Texas Law Professor Stephen Vladeck. "The mayor can ask, but the president and Secretary of Defense are the only authorities who can formally activate the Guard. So the D.C. Guard is basically 'always federal' in ways that aren't necessarily true for states' guards."

There are also reports that military police from Fort Bragg in North Carolina have been deployed to D.C. Now, the Posse Comitatus Act prohibits active-duty military from assisting in domestic law enforcement activities, with only a few exceptions. This work usually falls to the National Guard. If the president were to bring in troops from neighboring active duty bases, they would need an exemption to the act — and one exemption is the Insurrection Act.

"The Insurrection Act remains the most likely and legally 'clean' method for introducing military units — whether active duty or National Guard — into the current unrest in order to reestablish order in a uniform manner," said D.C.-based national security attorney Bradley Moss.

A similarly complex situation even extends to D.C.'s own police force, the Metropolitan Police Department. Under a relatively obscure provision of D.C. law, any president can "direct the Mayor to provide him, and the Mayor shall provide, such services of the Metropolitan Police force as the President may deem necessary and appropriate" during an emergency.

The only existing safeguard is that a president could only commandeer MPD for 48 hours before they'd have to formally notify Congress.

"I don't think it's ever been invoked, but that gives the president pretty broad authority to require MPD where he declares an emergency to answer to his direction," says Walter Smith, director of the D.C. Appleseed Center for Law & Justice.

Smith says he understands the genesis of the provision — there are lots of federal interests within D.C., after all. He also doubts it would ever be invoked, but concedes that if there were ever a time, it would be now.

"I think we're in uncharted territory with this president as to what he might do, and the statute is broadly worded," he says.

All of this has raised concerns that were gingerly expressed by D.C. officials at a press conference on Monday afternoon, just two hours shy of the imposition of the 7 p.m. curfew.

"I appreciate the work the Metropolitan Police Department has done. They've had many years of experiences of working with crowds ... so they are a calming influence," said D.C. Council Chairman Phil Mendelson, citing MPD's training in handling large-scale demonstrations. "I am hopeful that will continue as we see there are additional [police] assets in the city."

Mendelson went a step further after Trump said during an evening press conference that he would increase the number of federal police in the city. "Unleashing the military on this city, protestors, and residents is unacceptable and unnecessary," he said.

Mayor Muriel Bowser largely echoed Mendelson's point from the press conference. "I know the values of MPD, I know that our officers know our expectations of them, and they know how to work with our community, and they know they are accountable to the chief and to me. We can't always say those same things about other entities."

She did say there was value to having more police on the ground — whether or not she has actual control over all of them. But she added that she would like to see their use limited.

"Federal [police] can be helpful for federal assets and memorials," she said.

But Ward 6 councilmember Charles Allen had a more critical take. "They're not keeping DC safe; they're putting D.C. lives at risk rather than de-escalating," he tweeted about the use of federal police. "Pictures like this, glorifying threats of violence, is only intended for an audience of one. He's holed up & afraid — thinking this is all a game."

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