Trump, the Military, and the Insurrection Act

Last spring, students at colleges and universities around the country erected tent encampments on their campuses to protest the slaughter of Palestinians in Gaza and calling for divestment in companies supplying arms to Israel. In a few cases, university administrators negotiated with the protesters and agreed to reconsider those investments, but in most they called on the police to clear the encampments and arrest the protesters. Hundreds of students were arrested at Columbia, Northeastern, Washington University, USC, UCLA, UMass Amherst, UNC Chapel Hill, UT Austin, and many others—resulting in as many as 3,200 student arrests, according to one estimate.

Although most of those arrests occurred in a relatively peaceful manner, with students surrendering in a nonviolent manner, some reportedly involved excessive violence on the part of the police. At UMass Amherst, for example, police reportedly beat protesters, zip-tied them, and detained them for many hours in unventilated enclosures. Police also used pepper spray to clear student protests at several campuses, including George Washington University and UT Austin. So far as I can tell, however, no firearms were employed in these encounters and protesters were never threatened with lethal force. Nor was the National Guard called up to supplement police units in quelling the protests, as occurred at Kent State University in 1970, when soldiers from the Ohio National Guard fired on anti–Vietnam War protesters, killing four of them. More significantly, President Biden specifically ruled out the use of Guard forces to suppress this spring’s campus demonstrations, saying “no” when asked by a reporter on May 2 if he thought the National Guard should “intervene” in the protests.

Now, take a deep breath, and ask yourself: What would Donald Trump do in response to protests like these if elected to a second term as president?

This question deserves our close attention, because it is almost certain that the policies he would implement on day one in the White House will provoke protests of one sort or another in cities and at campuses across the United States. Many observers have noted that members of his entourage, in close association with right-wing think tanks like the Heritage Foundation and the Center for Renewing America, have prepared detailed plans for immediate action on such issues as immigration, education, abortion, climate change, and trans people’s rights—all bound to provoke strong and immediate opposition from various sectors of civil society.

Recall, for example, Trump’s Executive Order 13769 (aka the “Muslim Travel Ban”) of January 27, 2017, restricting entry into the United States of citizens from seven Muslim-majority nations for 90 days, which provoked mass anti-Trump protests at airports in the United States and around the world. When confronted with the travel ban protests in January 2017, Trump was new to the Oval Office and largely unprepared to address mass public discord on this scale. But that will not be the case in January 2025, should he secure a second term. Not only have his allies prepared detailed plans for suppressing dissent, but Trump himself became more familiar with the tools of repression during his four years in office and is clearly primed to employ them.

In particular, Trump has become an ardent student of the Insurrection Act of 1807, which allows the president to suspend the Posse Comitatus Act (which prohibits the use of federal forces in domestic law enforcement) and to employ the National Guard or active-duty troops in suppressing a domestic rebellion if requested by state officials or, in some cases, without state authorization. The act has been invoked rarely, given the nation’s historic aversion to excessive executive. power—methodically embedded in the Constitution—but Trump has expressed a strong inclination to use it against mass public protests.

The George Floyd Protests and Trump’s Response

To best understand Trump’s thinking on the Insurrection Act and mass protests, consider his response to the George Floyd protests of late May 2020 and the subsequent events at Lafayette Square in Washington, DC. When it was learned that Floyd, a 46-year-old unarmed Black man was murdered by Minneapolis police on May 25, protests erupted in cities across the United States, with Black Lives Matter the unifying theme. Most of these protests were peaceful, but some were accompanied by looting, vandalism, and other acts of violence. In some cities, police battled protesters night after night, until National Guard troops were called in to suppress the unrest; as many as 32,000 people were arrested in the ten days following Floyd’s killing.

Like other large American cities, Washington experienced large-scale protests in the wake of George Floyd’s murder. On May 29, protesters stormed Lafayette Square, the small parklike quadrangle opposite the White House, leading to furious clashes with the US Park Police (responsible for law enforcement at national parks, including Lafayette Square) and the Secret Service. Protests continued around the square the next day—most of them peaceful, but some turning violent, with arsonists setting fire to the parish house of Saint John’s Episcopal Church, directly across from the White House. That evening, and into the next morning, DC and Park Police used tear gas, rubber bullets, and other harsh riot-control methods to clear the area.

On the morning of June 1, Donald Trump summoned his two top military leaders—Secretary of Defense Mark T. Esper and Chairman of the Joint Chiefs of Staff Gen. Mark A. Milley—to the Oval Office to discuss his desired response to the DC protests. As recounted by Esper in his memoir, A Sacred Oath, Trump told them that he wanted to invoke the Insurrection Act and order “ten thousand troops in Washington to get control of the streets.” When Esper and Milley demurred, saying the unrest was best handled by civil law enforcement and the DC National Guard, Trump threw a tantrum, calling them “losers” and repeating his desire to send active-duty troops into the city. “Can’t you just shoot them?” he asked Milley, the nation’s highest-ranked uniformed officer. “Just shoot them in the legs or something?”