October 9, 2025 • 8 mins
Senior Editor at The Dispatch Sarah Isgur joins to break down President Trump’s comments on using the National Guard, the constitutional implications of deploying troops domestically, and the latest developments following former FBI Director James Comey’s arraignment.
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Speaker 1 (00:00):
And right now, let's go to the hotline and bring
in senior editor at The Dispatch and host of the
Advisory Opinions podcast, Sarah Isker is back with us. You
can find all of our work in a whole lot
more at The Dispatch dot com and you can follow
her on x at Wig Newton's. So, Sarah feels like
there's no shortage of legal issues tied to the Trump
administration to talk about these days. Want to focus on
(00:22):
the troop deployments that we're seeing in places like Oregon
in Illinois. How much room does a president have to
maneuver on something like that before we get into constitutionally
shaky ground.
Speaker 2 (00:37):
Then, so you ask if you ask the president, he's
got a lot of power.
Speaker 3 (00:41):
If you ask the federal courts, they're a little more
mixed on that question. Now, basically, you've got the Constitution itself.
You know, the president's there to execute the law. So
there's probably some inherent authority of the president to make
sure that you can execute the laws. But Congress has
also given the president power specifically to bring the National
(01:02):
Guard in or even bring the regular military in in
two different statutes. You hear the most about the Insurrection Act.
That is sort of your like nuclear bomb of presidential power.
It's very deferential basically, like if the president is finding
it hard to execute the laws, then he can bring
in the military to do civilian law enforcements. Now the president,
(01:27):
President Trump, has not invoked the Insurrection Act.
Speaker 2 (01:29):
He said he can, he might maybe, but he hasn't
done that yet.
Speaker 3 (01:34):
He's been relying on a different statute that says if
you are unable to execute federal laws, if there is
a rebellion, if the States aren't helping you, you can
federalize the National Guard to get that done. That's what
we saw in Los Angeles, for instance, when there was
all that violence in and around immigration enforcement. That's what
(01:54):
they've tried to do. In Portland, a judge, a.
Speaker 2 (01:57):
Trump appointee, by the way, said, you know what, the president.
Speaker 3 (02:01):
Does get a lot of deference to decide this, but
there's just no good faith reading of the situation in
Portland that there is a rebellion going on and that
he's unable to enforce immigration law. Now, legal scholars will
tell you like maybe, but it kind of depends. If
you're looking just at like this month.
Speaker 2 (02:21):
That seems right.
Speaker 3 (02:22):
But for three weeks this summer, the ICE Office was
closed because of violence and protests that had damaged the
buildings so badly they had to just shut the whole
thing down. Does the President have to wait until that
is happening in order to bring in the National Guard,
or can he say, look, it happened, it could happen again.
Speaker 2 (02:39):
At this point, we just need to get the laws enforced.
This was done, of course, during the civil rights movement.
Speaker 3 (02:44):
To desegregate schools, when southern governors were refusing and in
fact preventing the desegregation of their schools. So it's not
the first time a president has said I'm going to
come in here and I'm going to enforce federal law,
and by god, we're getting this done.
Speaker 1 (02:58):
We're joined by sor editor at The Dispatch and host
of the Advisory Opinions podcast, Sarah Esker. How much of
a difference is there between President Trump sending in the
National Guard to protect an ICE facility or to protect
ICE agents conducting immigration enforcement operations, and President Trump sending
(03:19):
in the National Guard into, say Chicago, to deal with
crime there.
Speaker 3 (03:25):
Yeah, there's a big difference legally if you are basically
think of that as the difference between defense and offense.
Defense is pretty easy to argue. For you're protecting the building,
so like you're standing in front of a federal building,
you're protecting federal officers. If local police are overwhelmed, for instance,
by protests or violence, like thumbs up on that. For
(03:48):
the most part, if you're having members of the military
act as police doing civilian law enforcement, you run into
something called the Posse commas Hottis Act, where Congress very
explicitly said the military can't be arresting people. That's tyranny.
Speaker 2 (04:06):
But again, that Insurrection Act is an exception of the
Posse Comitatus Act. It's incredibly broad.
Speaker 3 (04:12):
Trump talked about the Insurrection Act in his first term
quite a bit. A bunch of us raised our hands, screaming, hey, guys,
has anyone looked at the statute.
Speaker 2 (04:19):
It's kind of insane.
Speaker 3 (04:21):
A president shouldn't have this much power in this much discretion.
Of course, Joe Biden gets elected, Democrats control Congress. They
don't do anything to repeal or diminish the powers in
the Insurrection Act because everyone likes having this power. And
yet it's a huge problem when the other guy gets
(04:41):
into office.
Speaker 1 (04:42):
How about when there's an invitation from the state, like
what we're seeing in Louisiana and Tennessee with Memphis, how
does that change the equation?
Speaker 3 (04:54):
Oh, think of that like a presidential double bounce. You're
in very good shape if the has asked you to
come in and help again, like all the more so
if you're doing the defensive work, if you're doing the
offensive work, you're still in pretty good shape because the
governor alone could do quite a bit of that himself.
When you're looking at the National Guard, now here's the
(05:15):
big difference national Guard.
Speaker 2 (05:16):
I think national Guard is like a half measure.
Speaker 3 (05:19):
When like the US Marines jump into your state and
our arrest people. No, that's that's the insurrection Act side.
That's the posse comma tatis problem. We've as Americans been
very very hesitant since those Red Coats were running around
shooting people in Boston to allow the military, yeah, to
(05:40):
do law.
Speaker 1 (05:41):
Enforcement, and for good reason. We're joined by a senior
editor at The Dispatch, host of the Advisory Opinions podcast,
Sarah Isker Let's switch Gears. Former FBI Director James Comey
a reigned in federal court yesterday. I have not seen
any legal analyst whom I trust to call balls and
strikes on this stuff, say, the Department of Justice has
(06:02):
a strong case here, What is your take on what
you've seen so far?
Speaker 2 (06:07):
I think even legal analysts that you might not trust
are going to have a hard time saying there's a.
Speaker 3 (06:11):
Strong case here. The facts are just what they are,
which is, you know, they went to a grand jury
with you know, twenty three people and only fourteen even
signed off on this indictment. And it looks like despite
the Department's requirement to tell the grand jury exculpatory information,
(06:31):
meaning stuff that maybe would make them think the defendant
was not guilty, that they did not do that. So
even in their best case, where they provided no negative
information about their case, they barely got this indictment. Nobody
thinks this is a strong case. The question is it
goes to like this question of DOJ philosophy, if you will.
Speaker 2 (06:54):
That I struggled with when I was at the Department
of Justice.
Speaker 3 (06:58):
Do you bring the cases that you should ring because
someone broke the law, or do you only bring.
Speaker 2 (07:03):
The cases that you think you can win?
Speaker 3 (07:05):
And the Department of Justice has had a long held
policy of only bringing cases they can win. So even
if you think someone's guilty, even if you think you
know they should be punished for that. If you don't
have the evidence to do it, to convince a jury
beyond a reasonable doubt, DOJ doesn't.
Speaker 2 (07:23):
Bring the case.
Speaker 3 (07:24):
This is where I think you'll see a difference in
sort of the partisanship of legal pundits. They're legal pundits
who think, yeah, maybe it's not a strong case, but
gosh darn it, it's worth a shot because Comy. You know,
we think Comy lied to Congress, even if we can't
prove it. Yeah, I think you have the vast majority
that are like, if you can't prove it, then you
shouldn't bring.
Speaker 1 (07:43):
The case, right, And especially when it comes to things
that are this politically charged, I think I think.
Speaker 2 (07:49):
You're with the peloton here, you know.
Speaker 1 (07:51):
Yeah, yeah, all right. Sarah Ask your senior editor at
The Dispatch and host of the Advisory Opinions podcast. You
could check out all of our work in a whole
lot more at The Dispatch dot com and you can
follow her on x at wig Newton's Sarah really appreciate
time and insight. Thanks so much.
Speaker 3 (08:06):
Thank you.
Speaker 1 (08:07):
The Ryan Gorman Show five to nine every weekday morning
on news radio w u fla
And right now, let's go to the hotline and bring
in senior editor at The Dispatch and host of the
Advisory Opinions podcast, Sarah Isker is back with us. You
can find all of our work in a whole lot
more at The Dispatch dot com and you can follow
her on x at Wig Newton's. So, Sarah feels like
there's no shortage of legal issues tied to the Trump
administration to talk about these days. Want to focus on
(00:22):
the troop deployments that we're seeing in places like Oregon
in Illinois. How much room does a president have to
maneuver on something like that before we get into constitutionally
shaky ground.
Speaker 2 (00:37):
Then, so you ask if you ask the president, he's
got a lot of power.
Speaker 3 (00:41):
If you ask the federal courts, they're a little more
mixed on that question. Now, basically, you've got the Constitution itself.
You know, the president's there to execute the law. So
there's probably some inherent authority of the president to make
sure that you can execute the laws. But Congress has
also given the president power specifically to bring the National
(01:02):
Guard in or even bring the regular military in in
two different statutes. You hear the most about the Insurrection Act.
That is sort of your like nuclear bomb of presidential power.
It's very deferential basically, like if the president is finding
it hard to execute the laws, then he can bring
in the military to do civilian law enforcements. Now the president,
(01:27):
President Trump, has not invoked the Insurrection Act.
Speaker 2 (01:29):
He said he can, he might maybe, but he hasn't
done that yet.
Speaker 3 (01:34):
He's been relying on a different statute that says if
you are unable to execute federal laws, if there is
a rebellion, if the States aren't helping you, you can
federalize the National Guard to get that done. That's what
we saw in Los Angeles, for instance, when there was
all that violence in and around immigration enforcement. That's what
(01:54):
they've tried to do. In Portland, a judge, a.
Speaker 2 (01:57):
Trump appointee, by the way, said, you know what, the president.
Speaker 3 (02:01):
Does get a lot of deference to decide this, but
there's just no good faith reading of the situation in
Portland that there is a rebellion going on and that
he's unable to enforce immigration law. Now, legal scholars will
tell you like maybe, but it kind of depends. If
you're looking just at like this month.
Speaker 2 (02:21):
That seems right.
Speaker 3 (02:22):
But for three weeks this summer, the ICE Office was
closed because of violence and protests that had damaged the
buildings so badly they had to just shut the whole
thing down. Does the President have to wait until that
is happening in order to bring in the National Guard,
or can he say, look, it happened, it could happen again.
Speaker 2 (02:39):
At this point, we just need to get the laws enforced.
This was done, of course, during the civil rights movement.
Speaker 3 (02:44):
To desegregate schools, when southern governors were refusing and in
fact preventing the desegregation of their schools. So it's not
the first time a president has said I'm going to
come in here and I'm going to enforce federal law,
and by god, we're getting this done.
Speaker 1 (02:58):
We're joined by sor editor at The Dispatch and host
of the Advisory Opinions podcast, Sarah Esker. How much of
a difference is there between President Trump sending in the
National Guard to protect an ICE facility or to protect
ICE agents conducting immigration enforcement operations, and President Trump sending
(03:19):
in the National Guard into, say Chicago, to deal with
crime there.
Speaker 3 (03:25):
Yeah, there's a big difference legally if you are basically
think of that as the difference between defense and offense.
Defense is pretty easy to argue. For you're protecting the building,
so like you're standing in front of a federal building,
you're protecting federal officers. If local police are overwhelmed, for instance,
by protests or violence, like thumbs up on that. For
(03:48):
the most part, if you're having members of the military
act as police doing civilian law enforcement, you run into
something called the Posse commas Hottis Act, where Congress very
explicitly said the military can't be arresting people. That's tyranny.
Speaker 2 (04:06):
But again, that Insurrection Act is an exception of the
Posse Comitatus Act. It's incredibly broad.
Speaker 3 (04:12):
Trump talked about the Insurrection Act in his first term
quite a bit. A bunch of us raised our hands, screaming, hey, guys,
has anyone looked at the statute.
Speaker 2 (04:19):
It's kind of insane.
Speaker 3 (04:21):
A president shouldn't have this much power in this much discretion.
Of course, Joe Biden gets elected, Democrats control Congress. They
don't do anything to repeal or diminish the powers in
the Insurrection Act because everyone likes having this power. And
yet it's a huge problem when the other guy gets
(04:41):
into office.
Speaker 1 (04:42):
How about when there's an invitation from the state, like
what we're seeing in Louisiana and Tennessee with Memphis, how
does that change the equation?
Speaker 3 (04:54):
Oh, think of that like a presidential double bounce. You're
in very good shape if the has asked you to
come in and help again, like all the more so
if you're doing the defensive work, if you're doing the
offensive work, you're still in pretty good shape because the
governor alone could do quite a bit of that himself.
When you're looking at the National Guard, now here's the
(05:15):
big difference national Guard.
Speaker 2 (05:16):
I think national Guard is like a half measure.
Speaker 3 (05:19):
When like the US Marines jump into your state and
our arrest people. No, that's that's the insurrection Act side.
That's the posse comma tatis problem. We've as Americans been
very very hesitant since those Red Coats were running around
shooting people in Boston to allow the military, yeah, to
(05:40):
do law.
Speaker 1 (05:41):
Enforcement, and for good reason. We're joined by a senior
editor at The Dispatch, host of the Advisory Opinions podcast,
Sarah Isker Let's switch Gears. Former FBI Director James Comey
a reigned in federal court yesterday. I have not seen
any legal analyst whom I trust to call balls and
strikes on this stuff, say, the Department of Justice has
(06:02):
a strong case here, What is your take on what
you've seen so far?
Speaker 2 (06:07):
I think even legal analysts that you might not trust
are going to have a hard time saying there's a.
Speaker 3 (06:11):
Strong case here. The facts are just what they are,
which is, you know, they went to a grand jury
with you know, twenty three people and only fourteen even
signed off on this indictment. And it looks like despite
the Department's requirement to tell the grand jury exculpatory information,
(06:31):
meaning stuff that maybe would make them think the defendant
was not guilty, that they did not do that. So
even in their best case, where they provided no negative
information about their case, they barely got this indictment. Nobody
thinks this is a strong case. The question is it
goes to like this question of DOJ philosophy, if you will.
Speaker 2 (06:54):
That I struggled with when I was at the Department
of Justice.
Speaker 3 (06:58):
Do you bring the cases that you should ring because
someone broke the law, or do you only bring.
Speaker 2 (07:03):
The cases that you think you can win?
Speaker 3 (07:05):
And the Department of Justice has had a long held
policy of only bringing cases they can win. So even
if you think someone's guilty, even if you think you
know they should be punished for that. If you don't
have the evidence to do it, to convince a jury
beyond a reasonable doubt, DOJ doesn't.
Speaker 2 (07:23):
Bring the case.
Speaker 3 (07:24):
This is where I think you'll see a difference in
sort of the partisanship of legal pundits. They're legal pundits
who think, yeah, maybe it's not a strong case, but
gosh darn it, it's worth a shot because Comy. You know,
we think Comy lied to Congress, even if we can't
prove it. Yeah, I think you have the vast majority
that are like, if you can't prove it, then you
shouldn't bring.
Speaker 1 (07:43):
The case, right, And especially when it comes to things
that are this politically charged, I think I think.
Speaker 2 (07:49):
You're with the peloton here, you know.
Speaker 1 (07:51):
Yeah, yeah, all right. Sarah Ask your senior editor at
The Dispatch and host of the Advisory Opinions podcast. You
could check out all of our work in a whole
lot more at The Dispatch dot com and you can
follow her on x at wig Newton's Sarah really appreciate
time and insight. Thanks so much.
Speaker 3 (08:06):
Thank you.
Speaker 1 (08:07):
The Ryan Gorman Show five to nine every weekday morning
on news radio w u fla
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