Appeals court hands Trump a win over D.C. National Guard deployment

An appeals court signaled Wednesday that it may find the National Guard deployment in D.C. to be lawful, disagreeing with a lower-court judge’s opinion and issuing an order that will allow troops to stay in the city while litigation continues.

A three-judge panel – with two Trump appointees and one Obama appointee – wrote that the Trump administration is likely to succeed in its appeal of that lower-court ruling. The panel’s unanimous order on Wednesday was not a determination of the deployment’s legality and functioned only to allow the troops to remain pending final rulings, likely to come next year.

“Because the District of Columbia is a federal district created by Congress, rather than a constitutionally sovereign entity like the fifty States, the Defendants appear on this early record likely to prevail on the merits of their argument that the President possesses a unique power within the District – the seat of the federal government – to mobilize the Guard,” wrote the panel from the U.S. Court of Appeals for the District of Columbia Circuit.

President Donald Trump deployed the National Guard to D.C. streets in August. Trump declared a “crime emergency” in the District, ramping up federal law enforcement and immigration enforcement, temporarily seizing control of the police department, and ordering a deployment of troops that has since swelled to about 2,600 National Guard members from D.C. and 10 states with Republican governors.

D.C. Attorney General Brian Schwalb, a Democrat, sued the Trump administration over the deployment in September, arguing that it was an illegal incursion on the city’s autonomy and alleging that the troops were improperly engaged in law enforcement. In addition to asking for the deployment to be stopped entirely, Schwalb asked a judge to halt the deployment as litigation continued.

A U.S. District Court judge has not issued an opinion on the underlying lawsuit but in November gave D.C. a preliminary legal win, ordering the Trump administration to halt the deployment by Dec. 11 as the case continued. That order set off another flurry of litigation; the Trump administration asked an appeals court to block the order from going into effect.

On Dec. 4, the appeals court said the Guard could stay in the city as the judges continued to weigh the Trump administration’s requests – and on Wednesday, they granted the administration’s motion for stay pending appeal, meaning the Guard can remain in the District for now.

The appeals court judges said their order was preliminary and their assessment was “hurried.” They also noted that they did not address some of Schwalb’s central arguments - whether the Guard units were engaged in law enforcement in violation of federal law and whether the Guard troops from other states were improperly under federal command.

However, the judges wrote, the stay pending appeal is an “extraordinary remedy” that required the Trump administration to show that it was likely to prevail in its appeal of the lower-court ruling.

“The Defendants have demonstrated on this preliminary record that they will likely succeed in showing that the guard deployments are lawful” under federal and local law, they said.

Gabe Shoglow-Rubenstein, a spokesperson for Schwalb, said the appeals court ruling was preliminary and does not address D.C.’s core arguments in the case.

“This is a preliminary ruling that doesn’t resolve the merits, and we look forward to continuing our case in both the district and appellate courts,” he said.