UPDATES: San Francisco federal trial over Trump's National Guard deployment to LA

The third and final day in the Newsom vs. Trump trial over National Guard deployment to LA is about to kick off Wednesday.

U.S. District Judge Charles Breyer said Tuesday that he wants to hear more about the "legal issues" from parties today.

Eric Hamilton, Deputy Assistant AG with the U.S. DOJ is starting Wednesday/ "California is asking this court to do something that no court has ever done before...the statute authorizes the president to deploy guardsmen, but under their interpretation, that violates the Posse Comitatus Act."

National Guard troops repeatedly rehearsed their role in an operation at a Los Angeles park intended as a show of force against undocumented people and those protesting the Trump administration's immigration crackdown, a deputy commanding general testified Tuesday.

Maj. Gen. Scott Sherman, who commanded Guard troops in Los Angeles, was testifying at a trial to determine whether the Trump administration violated the Posse Comitatus Act when it deployed the soldiers and U.S. Marines to Southern California this summer. The 1878 law generally prohibits a president from using the military to police domestic affairs.

Sherman said the deployment of federal agents on horseback and on foot to MacArthur Park in a neighborhood with a large immigrant population was initially planned for Father's Day, June 15. But the operation was moved to July 7 after he raised concerns the park could be crowded, he said.

"We assessed that there could be a large amount of people in the park (on Father's Day), which could quickly overwhelm Border Patrol," Sherman testified.

Sherman said the decision to shift the timing of the operation came after discussion among the National Guard, the U.S. Northern Command, the Border Patrol, Department of Defense Secretary Peter Hegseth and Department of Homeland Security Kristi Noem.

The Guard troops were deployed to protect the perimeter and were instructed only to exit their vehicles if there was a direct threat to federal agents, he said.

All troops remained in their vehicles during the brief but mighty show of force. Sherman said the operation took just 20 minutes because it had been rehearsed multiple times. The Department of Homeland Security hasn't said if anyone was arrested.

Sherman testified that he also raised concerns that military vehicles would be stationed along Wilshire Boulevard, which traverses the park, instead of staying in the perimeter during the so-called "Operation Excalibur."

After he raised his concerns, Gregory Bovino, the Border Patrol's El Centro sector chief in charge of the immigration crackdown in Los Angeles, questioned his loyalty, Sherman told the court Monday.

On July 7, federal agents, many of them in tactical gear, walked and rode their horses around the park, which was nearly empty because word had spread of a potential raid.

LA Mayor Karen Bass and Gov. Gavin Newsom called it a political stunt and spectacle meant to intimidate the city's immigrant communities.

Read more here.

As closing arguments began, the California DOJ gave historical context about the Posse Comitatus Act, which dates back to 1878. It prohibits the use of military to execute U.S. laws, without authorization of Congress or by the Constitution.

California noted the 8th Circuit has called PCA "the embodiment of a long tradition of suspicion and hostility of military force for domestic purposes."

CA DOJ: "Occupation of a civilian city by nearly 5,000 troops for 60 days will have and has had a prescriptive effect on that population. That is exactly the kind of standing army the founding fathers feared. Each of the incidents is a PCA violation."

CA DOJ goes back to the Trump administration's key defense, that the military deployment was solely for protection of federal property and personnel. Photographs were again shown of troops in a blockade line and interacting with a protestor. "Defendants cannot wordsmith their way around the law. Calling it 'security' doesn't make it any less illegal."

The CA DOJ concluded closing arguments asking for a permanent injunction to "bring a halt to the unlawful military crusade across this state."

Before US DOJ started closing arguments, Judge Breyer asked Eric Hamilton (US deputy asst AG) this: "Is there any limitation to use of the military in an operation which is being conducted by federal agents? For example, one, does there have to be a threat? Two, does there have to be some evaluation for threat in terms of consequences of the threat? Three, is there anything, I haven't seen any evidence in this case, as to the adequacy or inadequacy of local law enforcement addressing that threat?"

Hamilton says there isn't anything in Posse Comitatus Act that requires some pre-operation threat assessment. The "National Guard was federalized in early June because of violent protests in the LA area and we have seen at trial evidence of violence that persisted in July."

Judge Breyer continued with many questions for Hamilton (US DOJ) in quite impassioned tone. "Unless military is the first line of defense...it's usually local law enforcement that is the first line of defense. But there is no evidence in these situations...that they were unable or unwilling to enforce the law... Is that a correct analysis?"

Then Hamilton got into his closing arguments, also starting with the Posse Comitatus Act. He highlighted 9th Circuit cases that mention military being used as "backup security." Quote from Kahn (9th Circuit. 1994): "The district court concluded that the Navy provided only logistical support and backup security...therefore did not violate the law."

Now as to POTUS authority to federalize National Guard (see 10 USC 12406), Hamilton mentions the rebellion clause saying, "It's a rebellion because (Trump) says it's a rebellion." Judge Breyer does not seem satisfied with that answer and continued Q&A.

Hamilton referred back to witness statements, including Monday testimony from Army Deputy Chief of Staff William Harrington, who said the Guard had no interactions with civilians in reference to a July 7 MacArthur Park operation which took "20 minutes." Harrington testified that they did not engage in law enforcement activities.

Note: These were only closing arguments for the evidentiary portion of the trial. Judge Breyer said he's expecting arguments on "legal issues" Wednesday.

Court has resumed for Day 2 of the Newsom v. Trump bench trial in U.S. District Judge Charles Breyer's San Francisco courtroom. Maj. Gen. Scott Sherman is back on the witness stand first thing this morning. He commands Task Force 51, the Guard contingent that Trump admin sent to LA in June.

DOJ lawyer is questioning Sherman about a June 23 memo from Sec. Hegseth about the LA mission, reading: "Service members may not perform direct law enforcement activities such as searches, seizures, evidence collection or arrest." Sherman testifies troops did not violate that."

Sherman says he wants the public to know "we were doing exactly what we were told to do, exactly in line with federal law, and that we were not conducting law enforcement operations," adding the Guard was in LA to protect federal personnel and property, nothing else.

A U.S. Army North Fifth Army slideshow was shown in court again, which has guidance about "prohibited law enforcement functions" under the Posse Comitatus Act. It was a long list, but these are in red: security patrols, traffic controls, crowd control, riot control.

Sherman says his understanding, according to Trump and Hegseth memos, is those functions are red because the Guard can legally do under certain circumstances. Judge Breyer had a series of follow-up questions, asking why would those be listed as prohibited if soldiers can perform those duties.

Then came California Department of Justice Deputy AG Jane Reilley for the cross-examination. It was about a half-hour or so questioning from both parties largely about specifics of the Department of Defense's request for Guard assistance in LA.

Reilley asked Sherman if the DoD asked the Guard to set up perimeters, would he grant the request? He says without an identified imminent threat, it would have "never gone past our legal review."

The DOJ then showed a clip from President Trump's press conference Monday where he announced he is deploying the National Guard in D.C.

It was this quote from President Trump: "We have other cities also that are bad, very bad. You look at Chicago, how bad it is. You look at Los Angeles, how bad it is. We have other cities that are very bad. New York has a problem, and then you have, of course, Baltimore and Oakland. We're not going to lose our cities over this...we're going to clean up D.C. real quick."

The CA DOJ asks Sherman if he has received any word or request for sending more National Guard troops to other California cities (like Oakland, as Trump mentioned Monday). Sherman said no.

With no further questioning, he was dismissed as a witness.