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THIS GUY!!! Judge Breyer Is STILL Trying to Stop Trump From Stopping the LA Rioters (LAWSPLAINING) – Twitchy

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June 21, 2025
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Ya' Don't SAY! Anti-ICE LA Police Chief BACKPEDALS, Admits Riots Escalated BEFORE Trump Acted (Watch) – Twitchy

There’s not taking the hint and then there is whatever this is. 

We’re not sure how closely you guys out there in Internetland are following this court battle over Trump more or less calling out the troops in Los Angeles, so let’s quote our post last night where we reviewed what has happened so far:





Regular readers know that we have had riots in Los Angeles designed to disrupt the enforcement of immigration laws for around two weeks now. Trump federalized the National Guard and brought in the Marines to protect federal property and personnel but notably not to stop the riots themselves. In the midst of all that, Gavin Newsom tried to get a temporary restraining order stopping Trump from doing that, and hoping that Judge Breyer would give him that order without the Trump administration even having a chance to defend themselves in court. We covered Judge Breyer refusing to do that, here, and setting a hearing the following Thursday. If you wanted a deep dive into the legal issues surrounding the case and a discussion of the Government’s Opposition to the motion for a temporary restraining order, go here. Then this author posted about the hearing, and our opinion that Breyer was likely to rule against the [Trump administration], here. Within minutes of that post, our prediction turned out to be true, but also a three-judge panel of the Ninth Circuit stepped in very and issued an administrative stay of that decision, which we talked about here.

To add an update to that background, that stay was a temporary, administrative stay that only served as a placeholder until they could rule on whether or not there would be a longer-term stay. Such administrative stays are not ‘on the merits.’ Last night the same panel granted (on the merits) a long-term stay of that ruling and many people thought that was that. The case was basically over, except for the shouting. You can read about that decision, here.

That brings us to today’s hearing before Breyer, which discussed what they might do going forward. The ‘MVP’ Professor Cleveland listened in on the hearing and gave her play-by-play, and we are here to do some ‘lawsplaining’ to translate from legalese to English and provide some commentary. Here’s what Cleveland said:

For starters, we will also be translating from Typonese to English. One weird upside of this author having dyslexia is that we are awesome at picking up typos and figuring out what the other person probably meant to say. In this case, when she says ‘commander’ we think she meant to type ‘commandeer.’ So that first sentence should probably read:

Recommended

LIVE COVERAGE here of Preliminary Injunction hearing before Judge Breyer on Newsom’s lawsuit to commandeer National Guard from Trump.

Besides the basic tolerance of typos that comes with dyslexia, we would also point out that Cleveland is probably typing quickly while trying to listen at the same time, and it is just Twitter/X after all, so typos are pretty normal under this situation.

Now, this was a preliminary injunction hearing before Breyer. Much like a Temporary Restraining Order, a preliminary injunction is designed to give one side or the other temporary relief while the case is pending—meaning before a final decision on the merits. Normally, if you want an injunction, you have to wait until the end of the case, when the final decision comes down based on the facts, often with a full trial. But sometimes if the court takes that long, the plaintiff will already effectively lose before the case is over.

That is certainly the case, here. We would be surprised if this Court could reach a final decision on the merits within even three months and in three months, the violence might be over. So, if Newsom was right on the merits, he would need some kind of order stopping it sooner, and that is why temporary restraining orders and preliminary injunctions are a thing. (But Newsom is wrong on the merits and therefore, no such order should issue.)

Finally, she notes that the Trump administration had asked for this hearing to be put off (stayed) until the Ninth Circuit rules, but Judge Breyer refused. Why? Well, that comes up in her next post:

She is getting into the how Federal District Court Judges are actually more powerful than you might think. You see, generally speaking, District Court Judges determine the facts and there is very little room to challenge their factual findings on appeal. Rather, the appellate courts tend to look only at whether or not the law is being followed. So, such lower judges can massage the facts to fit the law that they want to invoke.

Thus, this judge felt that the facts on the ground might ‘change,’ giving him the chance to outmaneuver the Ninth Circuit Court of Appeals. As in ‘sure, the Ninth Circuit overruled me based on these facts, but the facts have changed and now it is (D)ifferent! So I can ignore that ruling and slap the Trump administration with another injunction!’ The judge probably didn’t say this in any direct way, but rather she is interpreting his intentions. We happen to trust her analysis, but we wanted to point out the limits of that analysis. This is psychology more than law, and every rational person can understand the limits in a person’s ability to guess what another person is thinking.





We are going to skip several steps in her coverage, talking about issues that don’t relate to the substance of the hearing, like lawyers officially reintroducing themselves to the court. The meat of the hearing comes in here:

The cut off text reads, with a little grammatical clean up.

I’m a district court my decisions are reviewed by 9th [Circuit]. [J]ust as you can’t ignore my decisions I can’t ignore 9th Cir. Issue is precisely ‘how to do that.’ Did not challenge posse [comitatus]…B/f d.ct. [Before the District Court,] Plaintiff argued certain points violate posse [comitatus], 9th cir. said disputes are not before us. It is not clear to me that the 9th Cir. stay divests this court per to grant/modify by posse [comitatus], d.ct. has authority to modify. Asks for briefing on whether to modify injunction under posse [comitatus] by June 23 (I missed that was it ). Depending on what you say, I’ll decide what to do next. 

Me: Holy CRAP he’s going to do posse [comitatus].

First off, if you haven’t figured it out, Professor Cleveland really struggled to spell ‘comitatus’ correctly so we replaced it with the correct spelling each time. And bluntly, this author struggles with that word, too. We had to cut and paste the term every time we used it.

Second, you have this passage from Cleveland’s post:

Court granted TRO and 9th admin. stayed and then stayed pending appeal. In order 9th cir. is an effectively PI and thus it has appellate jurisdiction.

This is something we glossed over last night, but there is a claim that normally you can’t appeal a Temporary Restraining Order (‘TRO’) but they can definitely appeal from a Preliminary Injunction (‘PI’). The Ninth Circuit got around that by saying that the judge treated this so much like a Preliminary Injunction, they were going to treat it a Preliminary Injunction, too.

As a result of all that, it means that the Ninth Circuit still has jurisdiction over everything related to that Temporary Restraining Order. Jurisdiction is essentially the power to decide a case, and when something goes up on appeal, the appellate court typically takes away jurisdiction—the power to decide—away from the lower court, in whole or part, just so that they don’t have to deal with competing rulings in the lower court or the higher court.





Thus Breyer seems to think he has only lost jurisdiction on the issues covered by the case in the Ninth Circuit, but he also seems to think that somehow this posse comitatus issue is not covered by it, so he still has jurisdiction over that issue.

Therefore, that leads to the question: What the heck is posse comitatus? Well, it refers to the Posse Comitatus Act. We touched on this here, but in that article, we didn’t bother to quote the statute, but we are going to do that here. It is codified as 18 U.S. Code § 1385 and the entire law says:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

This actually isn’t very complicated. We summarized it in that prior post by saying that:

unless the Constitution or a statute provides otherwise, the President can’t use the military to carry out law enforcement functions. So, if Trump is using the military in that way, he must find an exception in either the Constitution or a statute.

One thing we left out of that analysis is that there is a real question of whether or not a court could enforce this law by an injunction. It seems to us that the law has an enforcement method: This is a criminal statute, so the enforcement method is prosecution of the person who is doing that. Of course, that would have to mean that the Trump administration would have to prosecute itself—or a subsequent administration would have to prosecute—but that is how Congress wrote the law.

(And before you ask, it is an open question whether or not a President can pardon him or herself. But we think there is a strong argument that even if the President cannot self-pardon, he or she can briefly make the Vice President acting president and be pardoned by that Vice President. Given how much lawfare has been arrayed against Trump, we fully expect Trump to at least attempt to pardon himself. But we would suggest having J.D. Vance also pardon him as acting president just to be sure.)

But back to posse comitatus, it still amounts to this. First you have to determine whether or not this is a law-enforcement function that Trump is doing. If it is, then you have to find an exception in either a statute or the Constitution itself. But outside the potential for prosecution, we don’t really find this very exceptional. The President is never supposed to do anything without legal authorization in either the Constitution or a statute (assuming the statute is not itself unconstitutional).





The cut off text:

Judge: Now that has been converted to PI and so I don’t have jurisdiction over PI, the 9th cir. does. You’re asking what is duration of National Guard. I had understood nationalized for 60 days.

DOJ: 60 day time limit, but with flexibility for that time to change, or at the discretion of Secretary of Defense. 

Newsom Attorney: Because it is renewable, we believe another issue is when it should end. We also want court to issue the duration of the order.

Judge: You can address that in your briefing.

He said sorry to ruin peoples’ weekends so I take it briefing is due on Monday.

We read this exchange as team Newsom trying to say that they think the judge still has jurisdiction over how long the federalization of the National Guard goes on. The judge gives them permission to brief the court on that, but he doesn’t really seem to think he can rule on that question. He believes that is governed by the Ninth Circuit.

Of course, she is clearly guessing based on how the Judge is behaving, so take that with an appropriate grain of salt … but we tend to think she is right.

So, in theory at most Judge Breyer might tell Trump that he can’t use the Marines, but he can still use the National Guard, because the Ninth Circuit clearly said that he could federalize the National Guard. But Breyer really seems to be bound and determined to go off the reservation, so who knows? If prior claims that Breyer is a moderate, and that he follows the law are true, then we think the best explanation for his behavior in this case is Trump Derangement Syndrome. And who knows how far that derangement will go?

Cleveland also posts her thoughts when she has more time to reflect:





We think maybe one could make a narrow, technical claim that the posse comitatus issue is in his hands, but this judge needs to read the room. The Ninth Circuit stayed his decision in under two hours and then unanimously voted to extend the stay indefinitely. Breyer has to know that if he tries to take away the Marines, the same panel will step in immediately and overrule him. 

And as we noted before, there is solid precedent suggesting that yes, the Marines can be used to protect federal personnel while they are trying to do their job, and that authority comes directly from the Constitution itself. That would satisfy the posse comitatus concern.

When we posted on the case last night, a friend of this author’s privately suggested that this case was over, saying ‘it is pining for the fjords.’ Well, against all odds, we actually think the appropriate Monty Python quote for the current case is …

And honestly, we think at this point, they need to consider taking Breyer off the case. And really, with all this judicial madness in the last few months we find ourselves thinking of this classic song parody, about Federal District Court Judges:

We don’t know a single lawyer who doesn’t thoroughly enjoy this song because it is very true to the arrogance of certain trial court judges. Many are great and humble but most lawyers who appear in court have run into at least one judge who is pretty much exactly like that. But, of course, the lyrics saying that an appeal takes forever doesn’t apply so much in this case, does it?

And while we won’t do many reactions, we will share some from fellow lawyer Shipwreckedcrew:

But more substantively he wrote:

Since most of the text is below the fold, we might as well reprint the whole thing:





9th Cir:

‘Yes Judge Breyer — we were actually with you all along but no one in the lower court said the ‘Magic Words’ Posse Comitatus.  

NOW YOU HAVE SOMETHING.  Get back up here as soon as you can so we can fete you with a toast of champagne.’

Seriously, will someone in that courthouse take the judge aside and talk some sense into him? Because if the judge dares to try to stop Trump from using the Marines or the National Guard, and it isn’t stayed before it goes into effect, Trump might just decide to ignore what the court says.

And he might be acting within his power under the Constitution if he does.

In fact, we are working on a VIP piece discussing the legal theory that might allow Trump to ignore such an order. So stay tuned.

RELATED: BREAKING: Ninth Circuit Rules That Trump Can Federalize the National Guard During LA’s Riots … For Now

ANOTHER PLOT TWIST! That Feud Between Trump and Netanyahu? They Faked It As Part of an Intelligence Op

BREAKING: Ninth Circuit Gives Trump Back Control of the California National Guard … for Now

BREAKING: Judge Rules Trump Cannot Use the National Guard to Stop Riots in Los Angeles

LAWSPLAINING: Margot Cleveland Suggests That the FBI Has Systematically Violated Defendants’ Rights

‘First Do No Harm:’ Fisking John Oliver on the Transgender/Sports Issue

The Question Isn’t Whether Trump Can Revoke Biden’s Pardons. It’s Whether They Were Issued at all


Editor’s Note: Radical leftist judges are doing everything they can to hamstring President Trump’s agenda to make America great again.

Help us hold these corrupt judges accountable for their unconstitutional rulings. Join Twitchy VIP and use promo code FIGHT to get 60% off your membership.





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