What A Day - Fed Versus Blue

Episode Date: October 7, 2025

For the past four months, President Donald Trump has been sending the National Guard into cities that protest his policies. First, it was Los Angeles. Then, it was Washington D.C. And now, it’s Portland, Oregon and Chicago. An Oregon federal judge blocked Trump’s deployment of the state’s National Guard on Saturday — and then also stopped the Trump administration from sending California’s National Guard troops to Portland on Sunday night. But not all of these cities are getting help from the courts. On Monday, a federal judge declined to stop the Trump administration from deploying members of the Texas National Guard to Chicago – over the express objections of Illinois Democratic Governor JB Pritzker, who called the move an “unconstitutional invasion.”So to talk more about the legality and context for sending U.S. military into our own cities, we spoke to Elizabeth Goitein. She’s the senior director of the Liberty and National Security Program at the Brennan Center for Justice at NYU Law.And in headlines, the shutdown continues with no end in sight, President Trump says he’s going to “take a look” at a pardon for convicted child sex trafficker Ghislaine Maxwell, and the Social Security Administration Commissioner will also take on the brand new role of CEO of the IRS.Show Notes:Check out Elizabeth's piece – https://tinyurl.com/ypf2w6v8Call Congress – 202-224-3121Subscribe to the What A Day Newsletter – https://tinyurl.com/3kk4nyz8What A Day – YouTube – https://www.youtube.com/@whatadaypodcastFollow us on Instagram – https://www.instagram.com/crookedmedia/For a transcript of this episode, please visit crooked.com/whataday Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

It's Tuesday, October 7th. I'm Jane Koston, and this is what a day. The show that would like to congratulate French Prime Minister, Sebastian the Cornu, 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. 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. I believe that the Portland people are scared. You look at what's happened with Portland over the years. It's a burning hellhole, and then you have a judge that lost away that tries to pretend that like there's no problem. 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.

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. 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. I believe that Pritzker and this mayor of Chicago that like to say about we have it, they don't have it under control. Not only is it not under control, it's the opposite.

And I believe they're afraid, they're scared for their lives. 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. I'm not intimidated. I'm not going to cower. I'm 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 warn 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 rule? 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 U.S. 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 Goitin. 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 today.

Thanks so much for having me. Since June, the president has activated the National Guard in multiple cities across the U.S., Los Angeles, Washington, D.C., 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? 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 Comitatis 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 Commentatus 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, 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. 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? 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're not going to do it as well, and it's going to be a lot more expensive.

So right now, President Trump is activating the National Guard in states against those states' governors' wishes, which is why we've seen so many lawsuits coming out of these deployments. Have we ever seen that before? 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 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 a state and local law enforcement were completely overwhelmed, acknowledged they were overwhelmed, and the state asked for help. So going to that point just yesterday, press secretary Caroline Levitt said, quote, the president has the right to call up the National Guard in cases where he deems it appropriate. Is that true? Okay. 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 U.S.C. 12-406. I wish it had a catchy name, but it doesn't. 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. 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. Yeah, I mean, it's differently concerning. Right. But it's concerning for the reasons that you say. It's concerning because even though the Posse Comitatis Act doesn't technically apply, it is a violation of the principles underlying the Posse Cometatus 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 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. 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. I'm thinking about the Philippines. But it just seems like something where China? China, absolutely. Like, this is something we've seen in authoritarian regimes across the world. Absolutely, absolutely. More broadly, what do you think is the attraction of doing so?

because I remember when Duarte 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? Well, I don't think any of us would want to live in El Salvador right now. No. 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 D.C. you are seeing lower restaurant attendance, less tourism in D.C. 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 D.C. or Chicago, it was real. But it was nonetheless used as an excuse to consolidate all power or almost all power in President Buckelly and to override the protections of the law and the rights that the people have.

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? 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, 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's the way the public feels about this. So people should, as they always should for any reason, they should act peacefully and lawfully. 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 confrontation has been started by federal agents themselves. So we're seeing all sorts of legal challenges here in many places. What do you expect to come out of these challenges? I think eventually if the president keeps pushing the use of 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. Elizabeth, thank you so much for joining me. My pleasure. That was my conversation with Elizabeth Goitin, 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 up a podcast, watch us on YouTube, and share with your friends. More to come after some ads. What Today is brought to you by Nutrifle. If you're dealing with hair issues like thinning or shedding, but feel totally stuck on what to try next, I get it. There are so many products out there, and it's different. just hard to know which ones actually do anything. That's why I gave Nutrafol a closer look. It's not just hype. It's physician formulated, clinically tested, and even recommended by dermatologists. In fact, Nutriful is the number one dermatologist recommended hair growth supplement brand,

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Find out why Nutraful is the best-selling hairgrowth supplement brand at Nutraful.com, spelled N-U-T-R-A-F-O-L-com promo code day. That's neutrofoil.com promo code day. Here's what else we're following today. Head of lines. And now we have a negotiation going on right now with the Democrats. Ted could lead to very good things. And I'm talking about good things with regard to health care.

Trump spoke from the Oval Office Monday, suggesting he'd be open to striking a deal with Democrats on the health care subsidy central to the government shutdown fight. But this is a good. Trump. So, obviously, he changed his tune quickly after. Writing on True 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. Wick helps more than 6 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. 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. White House Press Secretary Caroline Levitt 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 like 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 trips 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.

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, 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. Breaking news. Hamas is fine.

The Supreme Court rejected an appeal from convicted child sex trafficker, and Jeffrey Epstein collaborator, Galane 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. I say, well, I'll take a look at it. I'll speak to the DAJ. I will speak to the DAJ. 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 DAJ. I don't know. I mean, I'd have to speak to the DOJ. I'll look at it. I'll, I'll, I'll, I I have a lot of people who have asked me for pardons.

I call them Puff Daddy has asked me for a pardon. But she was convicted of child sex trafficking. Yeah, I mean, I'm going to have to take a look at it. I have to ask DOJ. I didn't know they rejected it. I didn't know she was even asking for it. 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 Bizzingano just got promoted to a new 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, Visignano 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. 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 Green, 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. 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. 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 Swiss 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 adherence being mad and just wanting to find something to be mad about. A pop superstar who sings in Spanish? Eminem's 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 any more thing. And that 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 Bowl halftime show. Before we go, Votesave America is running a first of its kind pilot program to recruit candidates from Arizona, North Carolina, and Texas. We're talking school board, city council, state legislature, races that shape our communities and build the bench for long-term

democratic power. Even if you're not from those states, they'll connect you with their incredible national partners at the National Democratic Training Committee and run for something to get you set up and ready to run anywhere in the country. We've already had thousands of people sign up over the past couple of months. Vote Save America is hosting a live call today, Tuesday, October 7th at 5 p.m. Pacific, 8 p.m. Eastern Time to welcome new people to the program. Tommy Vitor will be there, along with VotSave America's partners driving this work to break down what it takes to run and how they will support you every step of the way. If you've ever thought about running, this is where to start.

Sign up for the call and learn more at Votesaveamerica.com paid for by Votesave America. Learn more at Votesaveamerica.com. This ad has not been authorized by any candidate or candidates' committee. 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 sizes at the gate, but hasn't changed its actual carry-on bag policies, like me, Water Day is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe. I'm Jane Koston, and I can't wait to find out which deranged items folks try to carry on. to American Airlines flights now. My guess, full-grown hippopotamus. What a day is a production of Crooked Media. It's recorded and mixed by Desmond Taylor.

Our associate producers are Emily Four and Chris Allport. Our video editor is Joseph Dutra. Our video producer is Johanna Case. We had a production help today from Greg Walters, Matt Berg, Sean Ali, Gina Pollack, and Caitlin Plummer. Our senior producer is Erica Morrison, and our senior vice president of news and politics is Adrian Hill. We had helped 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.