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TRANSCRIPT

Jane Coaston: It’s Tuesday, October 7th, I’m Jane Coaston, and this is What a Day, the show that would like to congratulate French Prime Minister Sébastien Lecornu on no longer being the Prime Minister of France. He was appointed to the job less than a month ago, he formed a cabinet on Sunday, and on Monday, he quit. The French really take not wanting to do terrible jobs seriously. [music break] On today’s show, President Donald Trump says he’s going to, quote, “take a look at a pardon for a convicted child sex trafficker.” And he’s got the time as the federal government shutdown continues with no end in sight. But let’s start with the National Guard, specifically Trump’s efforts to federalize the National guard and send troops to cities that oppose his policies. Cities like Portland, Oregon, for example. Here’s Trump on Monday, again responding to a judge he appointed who blocked his effort to send the National Guard to Portland in response to protests against immigration and customs enforcement. 

[clip of President Donald Trump] I believe that the Portland people are scared. You look at what’s happened with Portland over the years. It’s it’s a burning hellhole. And then you have a judge that lost her way that tries to pretend that, like, there’s no problem. 

Jane Coaston: On Sunday night, that same judge also stopped the Trump administration from sending National Guard troops from California to Portland. And of course, we can’t forget about Chicago! 

[clip of President Donald Trump] The people of Chicago, so you have Black women with MAGA hats on in Chicago, all over the place. They want the guard to come in, or they don’t care who comes in. They just want to be safe. 

Jane Coaston: Let’s stay with Chicago for a second. On Monday, a federal judge declined to stop the Trump administration from deploying members of the Texas National Guard to the Midwestern city over the express objections of Illinois Democratic Governor J.B. Pritzker, who called the move a, quote, “unconstitutional invasion.” But according to Trump, the National Guard is necessary because Pritzker and Chicago Mayor Brandon Johnson are just terrified of something. 

[clip of President Donald Trump] I believe that Pritzker and this mayor of Chicago that like to say about, we have it under, they don’t have it under control. Uh. Not only is it not under control, it’s the opposite. And I believe they’re afraid, they’re scared for their lives. 

Jane Coaston: But Crooked Media’s Matt Berg spoke to Mayor Johnson on Monday. Here’s Johnson’s response as to whether or not he’s, quote, “scared for his life by his own city.” 

[clip of Chicago Mayor Brandon Johnson] I’m not intimidated, I’m going to cower, I am not going to bend or break. My position has been clear from the very beginning. In fact, if you go back and look at footage from a couple of years ago, I warned people that President Trump and the extreme right in this country have not accepted the results of the civil war. And they have desperately wanted a rematch. And they have clearly declared war on the people of Chicago and we’re going to stand up and resist this authoritarian authoritatian rule. 

Jane Coaston: I think we can agree that all of this is absolutely fucking bonkers. The President of the United States wants to send the National Guard to US cities to fight quote, “crime,” while arguing that he knows those cities better than their own leadership and that their own leaders must be scared. So to talk more about the legality, or lack of said, and context for sending the military into our own cities, I spoke to Elizabeth Goitein. She’s a Senior Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU Law. Elizabeth, welcome to What a Day. 

Elizabeth Goitein: Thanks so much for having me. 

Jane Coaston: Since June, the president has activated the National Guard in multiple cities across the US, Los Angeles, Washington DC, Memphis, Portland, Chicago, and soon potentially New Orleans. Now, can you give me a quick overview of what a National Guard deployment looks like in practice? How is this different from local policing? What can the National Guard do that police can’t do and vice versa? 

Elizabeth Goitein: Such a good question. Ordinarily, the guard is a state entity that operates under the governor’s command and control and can be called into state active duty status. That is the normal sort of state of affairs for the National Guard. So when the National Guard is called into federal service, it is subject to the Posse Comitatus Act. And that is a law that prohibits federal armed forces from participating in law enforcement activities. As a general matter, subject to statutory exceptions. Law enforcement activities has been defined fairly broadly by the courts to include any sort of exercise of power over civilians that is compulsory in nature to sort of put a finer point on it. It’s been interpreted to include things like crowd control or even traffic control. So basically a lot of what the National Guard was doing in Los Angeles as a district court judge there held was a violation of the Posse Comitatus Act. Now, when the National Guard has not been federalized, it is not subject to the Posse Comitatus Act. However, it is still extremely unusual for states to use them for law enforcement purposes in the sense of sort of routine crime control. They are occasionally activated by the governor to respond to extreme forms of civil unrest. But what we’re seeing in terms of governors deploying their National Guard forces at the request of the president for crime control really is unprecedented. In the past nine presidencies, not including Trump one, the presidents have deployed the military for this purpose of either quelling civil unrest or enforcing the law, a grand total of two times. And we’ve now had President Trump either deploying or authorizing the deployment or requesting the deployment of troops five times and counting in the less than nine months that he’s been in office. So this is wildly out of step with American traditions and principles. 

Jane Coaston: So, just to go back, what can the National Guard do that cops can’t do, and what can cops do that the National guard can’t do? 

Elizabeth Goitein: Really this is trying to fit a square peg into a round hole in the sense that national guard forces are not trained in municipal policing so they’re being asked to do something that they’re not qualified to do so they are not going to do it as well and it’s going to be a lot more expensive. 

Jane Coaston: So right now, President Trump is activating the National Guard in states against those states’ governor’s wishes, which is why we’ve seen so many lawsuits coming out of these deployments. Have we ever seen that before? 

Elizabeth Goitein: We have seen that, for example, during the civil rights era, in cases where the state itself was obstructing federal law, federal civil rights law, federal court orders, or was refusing to protect civil rights marchers and African-Americans against violence. However, outside of civil rights era reconstruction, where the where the State itself was really the bad actor when the guard has been federalized or when active duty forces have been deployed in these kinds of civil unrest situations. It’s been a situation where state and local law enforcement were completely overwhelmed, acknowledged they were overwhelmed, and the state asked for help. 

Jane Coaston: So going to that point, just yesterday, Press Secretary Karoline Leavitt said, quote, “the president has the right to call up the National Guard in cases where he deems it appropriate.” 

Elizabeth Goitein: Nope. 

Jane Coaston: Is that true? Okay.

Elizabeth Goitein: No, no, he has to have statutory authority to call up the National Guard. He can’t just snap his fingers and do it because he wants to. And the statutes that permit federalization of the National guard have requirements that need to be met. And what the judge found in Oregon, for example, was that the criteria for deploying the guard under the law that President Trump was relying on, which is 10 USC 12406, I wish it had a catchy name, but it doesn’t. Um. He had to show, the administration had to show that the president was unable with the regular forces, basically with civilian authorities to execute the laws of the United States. And what the judge found was even giving a lot of deference to the president’s judgment and assessments here. His determination that he had to deploy the National Guard to execute the law was untethered to the facts. 

Jane Coaston: Now, the governors of Tennessee and Louisiana are working with the Trump administration to deploy the National Guard. But I still feel very concerned about this because, again, these are two red states dealing with two blue cities. This still feels as if the National guard is being deployed against a populace that doesn’t agree with the state’s politics. 

Elizabeth Goitein: Yeah, I mean, it’s differently concerning. Um.

Jane Coaston: Right. 

Elizabeth Goitein: But it’s concerning for the reasons that you say. It’s concerning because even though the Posse Comitatus Act doesn’t technically apply, it is a violation of the principles underlying the Posse Comitatus Act, which is that the military should not be used as a domestic police force. And also in Tennessee, there are some real issues with state law because state law in Tennessee limits the deployment of the National Guard for these kinds of purposes. Law enforcement purposes, basically, to certain emergencies, and there is a very strong case to be made that the use of the National Guard for crime control in Memphis is not permitted under state law. So there are legal questions as well as just, you know, concerns about the precedent of a governor using National Guard forces, using the state’s military to police citizens in a city that hasn’t asked for it and doesn’t want it.

Jane Coaston:  I have a broader question for you. I’m curious, what is the history of government officials using crime as a reason to deploy the military to police their own countries? Because I’m thinking about El Salvador. 

Elizabeth Goitein: Yeah yeah. 

Jane Coaston: I’m think about the Philippines, but it just seems like something where–

Elizabeth Goitein: China? 

Jane Coaston: China, absolutely. 

Elizabeth Goitein: Yup. 

Jane Coaston: Like this is something we’ve seen in authoritarian regimes across the world. 

Elizabeth Goitein: Absolutely, absolutely. 

Jane Coaston: But more broadly, what do you think is the attraction of doing so? Because I remember when Duterte first came into power in the Philippines, and there were a host of people who were kind of like, well, the gangs are gone. And you see the same thing in El Salvador, people are like, well, the crime rate has dropped precipitously. So I know this seems kind of obvious, but can you lay out the concerns here? 

Elizabeth Goitein: Well, I don’t think any of us would want to live in El Salvador right now. 

Jane Coaston: No. 

Elizabeth Goitein: Yeah. Maybe the gangs are gone, but you have no constitutional rights anymore because the Constitution has effectively been suspended and that is the risk, that is the danger, that deployment of the military can be used either to actually suppress the rights of the people or just to chill the exercise of those rights, and that effect is real. That is why in DC, you are seeing lower restaurant attendance, less tourism in DC because people actually feel less safe on the streets now rather than more safe. And yes, authoritarian countries around the world have used crime as an excuse. And I would say excuse rather than pretext because in El Salvador, for instance, yes, there was so much worse of a crime problem there than in DC or Chicago. It was real, but it was nonetheless used as an excuse to consolidate all power, or almost all power in President Bukele, and to override the protections of the law and the rights that that the people have.

Jane Coaston: So what should people living in cities where the National Guard is being deployed do and what can the rest of us who aren’t in those cities do to support those folks? 

Elizabeth Goitein: I mean, I think the most obvious thing that comes to mind is if you’re going to protest and people absolutely should exercise their First Amendment rights and not be intimidated or dissuaded from exercising their First amendment rights, they need to do it peacefully in order to not give the administration any excuse, any pretext to actually deploy the military. Now, the fact that some protesters might act in ways that are not legal, um engage in acts of violence at the fringes of a protest. That does not deprive the entire protest of First Amendment protection. That is the kind of thing that has happened throughout our country’s history and that has been handled by civilian authorities. It is the responsibility of civilian, state, and local law enforcement in the first instance to deal with civil unrest of that kind. That said, when you see these images of confrontations, and believe me, I know that not all the confrontations are being started by the protesters, but you see those images, it does provide fodder, whether it’s in court or declarations in court or whether it is the way the public feels about this. So people should, as they always should for any reason, they should act peacefully and lawfully. Um. The other thing they should do is bear witness. I think it’s important to monitor what’s happening on the ground so that there is some kind of factual basis to push back if the administration is claiming that a city is war ravaged or besieged when it clearly isn’t or situations where a confrontation has been started by federal agents themselves. 

Jane Coaston: So we’re seeing all sorts of legal challenges here in many places. What do you expect to come out of these challenges? 

Elizabeth Goitein: I think eventually, if the president keeps pushing the use of military the military in American cities, and that certainly seems to be a priority for him, this is going to go up to the Supreme Court. And it’s going to be up to the court to decide whether we are going to continue to have this vital norm that protects democracy and individual liberty against using the military against the citizens of this country. That’s how this ends, most likely. 

Jane Coaston: Elizabeth, thank you so much for joining me. 

Elizabeth Goitein: My pleasure. 

Jane Coaston: That was my conversation with Elizabeth Goitein, Senior Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU Law. We’ll get to more of the news in a moment, but if you like the show, make sure to subscribe, leave a five-star review on Apple podcasts, watch us on YouTube, and share with your friends. More to come after some ads. [music break]

[AD BREAK]

Jane Coaston: Here’s what else we’re following today. 

[sung] Headlines. 

[clip of President Donald Trump] And now we have a negotiation going on right now with the Democrats that could lead to very good things. [indistinct in background] And I’m talking about good things with regard to health care. 

Jane Coaston: Trump spoke from the Oval Office Monday suggesting he’d be open to striking a deal with Democrats on the health care subsidies central to the government shutdown fight. But this is Trump. So obviously, he changed his tune quickly after, writing on Truth Social, quote, “I am happy to work with the Democrats on their failed health care policies or anything else, but first they must allow our government to reopen. In fact, they should open our government tonight.” There have been few signs of meaningful negotiations between lawmakers to open the government again. In fact, the Senate struck down partisan bills once again Monday evening. All this chaos distracts from how the shutdown is affecting real people. Experts say one food aid program, the Special Supplemental Nutrition Program for Women, Infants and Children, also known as WIC, will run out of federal money within two weeks unless the shutdown ends. WIC helps more than six million low-income mothers and young children. If federal dollars run out, states would be forced to use their own money to keep it afloat or risk it closing. 

[clip of Karoline Leavitt] The president wants to see a ceasefire. He wants to see the hostages released. And the technical teams are discussing that as we speak to ensure that the environment is perfect to release those hostages. 

Jane Coaston: White House Press Secretary Karoline Leavitt addressed reporters as negotiations for a ceasefire between Israel and Hamas began in Egypt. The talk started Monday. Today marks the two-year anniversary of the October 7th Hamas attacks on Israel. Over the weekend, Trump presented a 20-point peace plan and gave Hamas a Sunday deadline to respond. The militant group agreed to parts of the plan before the deadline, saying they’d negotiate the rest this week in Egypt. As of now, the plan includes agreements that all hostilities would end immediately. And Hamas would release all hostages, living or dead, within 72 hours. In return, Israel would free Palestinian prisoners. As for establishing a long-term peace, Hamas would disarm, Israeli troops would withdraw from Gaza, aid would be allowed into the territory, and Hamas would begin the process of handing over political control. Trump’s plan has received broad international support, though the timing of implementing it all is still up in the air. Trump told reporters Monday the negotiations are off to a good start. 

[clip of President Donald Trump] I mean, you see in Israel tens of thousands of people. They really want the hostages back, and they really want things to end. And I think Hamas now has been uh all I can say is they’ve been fine. They’ve been fine. I hope it’s going to continue that way. I think it will. 

Jane Coaston: Breaking news, Hamas is fine. The Supreme Court rejected an appeal from convicted child sex trafficker and Jeffrey Epstein collaborator Ghislaine Maxwell on Monday, the first day of its new term. Maxwell’s lawyers say she shouldn’t have been tried or convicted in the first place for her role in helping Epstein, the financier and convicted sex offender. She’s currently serving a 20-year sentence for sex trafficking and conspiring to sexually abuse minors, among other charges. The Supreme court justices don’t usually explain why they turn down cases, but Trump’s DOJ had urged them not to take the case. The administration has faced criticism over its refusal to publicly release more investigative files from Epstein’s case. With appeal no longer an option, Maxwell’s only hope for avoiding prison time is a presidential pardon. And when Trump was asked about her by a reporter Monday, he wouldn’t give a clear answer on whether he’d grant her clemency. 

[clip of President Donald Trump] I say, well, I’ll take a look at it. I’ll speak to I will speak to the DOJ. I wouldn’t consider it or not consider it. I don’t know anything about it, so but I’ll speak I will speak to the DOJ. [indistinct question from reporter] I don’t know. I mean, I’d have to speak to the DOJ. I’ll look at it. I’ll, I have a lot of people have asked me for pardons. I call him Puff Daddy has asked me for a pardon. 

[clip of unnamed news reporter] But she was convicted of child sex trafficking. 

[clip of President Donald Trump] Yeah, I mean I’m going to have to take a look at and I have to ask the DOJ, I didn’t know they rejected it. I didn’t know she was even asking for it. 

Jane Coaston: I really think convicted child sex trafficker should be an automatic no for a pardon, but I’m not Donald Trump. Social Security Administration Commissioner, Frank Bisignano, just got promoted to a newly created role, CEO of the Internal Revenue Service. CEO, IRS, WTF? This puts Bisignano in charge of America’s retirement system and its revenue collection agency, making him the first living embodiment of both death and taxes. As IRS CEO, Bisignano will report to Treasury Secretary Scott Bessent. Who said in a statement that the IRS and SSA, quote, “share many of the same technological and customer service goals.” He’s right, which is why we should just give him a new cabinet post, Secretary of the Department of Hold Music. With two day jobs, Bisignano joins a number of other Trump administration officials to head multiple government agencies at once, including Bessent, Secretary of State Marco Rubio, and Secretary of Transportation Sean Duffy. Social Security advocates worry that he’s stretched too thin, noting that the SSA faces multiple challenges as a result of the Trump administration cutting thousands of jobs at the agency earlier this year. It is unclear whether Bisignano’s newly created role at the IRS will require Senate confirmation, because honestly, it sounds made up. And that’s the news. [music break] One more thing. MAGA is mad. Really, really mad. Sure, Republicans have control of Congress, the White House, arguably the Supreme Court, the governor’s mansions of 27 states, and they hold the trifecta in 23 states. But MAGA is mad. Why? Well, Bad Bunny is going to perform the Super Bowl halftime show, where, according to Georgia Republican Representative Marjorie Taylor Greene, he is expected to force Americans to experience, quote, “demonic sexual performances.” And they’re mad that a canceled Netflix show called Dead End Paranormal Park had a trans character. Elon Musk, the richest person on the face of the earth, is especially furious about this, demanding that Americans cancel their Netflix accounts for hosting a show that was canceled. As I said, the GOP controls the federal government and has total control of nearly half of America’s state governments. So it feels to me like the MAGA Anger Industrial Complex lacks something critical to an anger industrial complex. Anything real to be mad about. This isn’t new, I mean. Who can forget the time then Fox News host Tucker Carlson detailed our greatest crisis back in 2022. The lady M&Ms just weren’t sexy anymore. 

[clip of Tucker Carlson] The other big change is that the brown M&M has, quote, “transitioned” from high stilettos to lower block heels. Also less sexy. That’s progress. M&Ms will not be satisfied until every last cartoon character is deeply unappealing and totally androgynous until the moment you wouldn’t want to have a drink with any one of them. That’s the goal. 

Jane Coaston: I have never wanted to have a drink with an M&M, but I’m a liberal. But seriously, think about the biggest musicians in the world right now. Of those people, can you name one who could do the Super Bowl halftime show without MAGA getting furious for some reason or another? Kid Rock doesn’t count. In 2024, MAGA was furious at Taylor Swift, with some right-wing influencers even inventing a conspiracy theory about how the Super Bowl would be rigged with Swift’s help to assist then President Joe Biden’s campaign. Yes, this was a real thing they really thought or performed thinking for reasons. The MAGA Anger Industrial Complex relies entirely on its adherents being mad and just wanting to find something to be mad about. A pop superstar who sings in Spanish, M&Ms not being sexy, Cracker Barrel changing its logo, all fuel for the MAGA Anger Industrial complex. While many of the people within that complex argue that it’s liberals who are mad all the time. I mean, yeah I’d say I’m pretty miffed at the whole wielding the violence of the state against the most vulnerable thing. And the, we care so much about stopping sexual abuse until you ask about that famous sexual abuser Trump was friends with and then you’re not allowed to talk about it anymore thing. And the deporting people whose takes on another country made us mad thing. But I can say honestly, here and now, I have never gotten this mad about the Super halftime show. [music break]. 

[AD BREAK]

Jane Coaston: That’s all for today. If you like the show, make sure you subscribe, leave a review, congratulate American Airlines on getting rid of bag sizers for carry-ons at the gate in a decision that will definitely not confuse anyone and tell your friends to listen. And if you’re into reading, and not just about how American Airlines has gotten rid of their carry-on bag sizers at the gate, but hasn’t changed its actual carry-on bag policies, like me, What a Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Jane Coaston and I can’t wait to find out which deranged items folks try to carry on to American Airlines fights now. My guess? Full grown hippopotamus. [music break] What a Day is a production of Crooked Media. It’s recorded and mixed by Desmond Taylor. Our associate producers are Emily Fohr and Chris Alport. Our video editor is Joseph Dutra. Our video producer is Johanna Case. We had production help today from Greg Walters, Matt Berg, Sean Allee, Gina Pollack, and Caitlin Plummer. Our senior producer is Erica Morrison, and our senior vice president of news and politics is Adriene Hill. We had help today from the Associated Press. Our theme music is by Colin Gilliard and Kashaka. Our production staff is proudly unionized with the Writers Guild of America East. [music break] [AD BREAK]