The following is a lightly edited transcript of the October 7 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.President Donald Trump lost a big one in court over the weekend when a federal judge blocked him from deploying the National Guard in Portland. After the state of Oregon sued, the judge found that Oregon was likely to prevail on the merits and issued a temporary restraining order. The ruling also barred Trump from deploying the California National Guard to Oregon. Interestingly, the judge cited one of Trump’s own tweets—in which he described Portland as “war ravaged”—as evidence of bad faith. The court concluded that the president does not have absolute authority to invent “facts on the ground” as a pretext to justify any military deployment he wants. In other words, Trump’s bad faith worked against him. Today we’re discussing what this ruling really means with Oregon Attorney General Dan Rayfield. Attorney General, thanks so much for coming on.Attorney General Dan Rayfield: Absolutely. Well, thanks for having me.Sargent: So, Trump moved to take over the Oregon National Guard and sent several hundred of them into Portland to defend ICE facilities from protesters. You went into court, and Judge Karen Immergut awarded you a temporary restraining order. Then Trump tried to federalize the California National Guard and send it into Portland. California joined you and got that stopped as well. The court ruled, AG, that Trump exceeded his statutory authority with these orders. Can you explain the ruling and bring us up to date on where we are?Rayfield: Yeah, I mean, it’s pretty simple. If you think about it just as Americans—we don’t see the United States military in our cities, and there’s a reason for that, right? We have laws that prevent that, except under extreme circumstances.
And the president was saying, Hey, these extreme circumstances exist in the city of Portland. And we said, absolutely not. We presented real facts in the courtroom. The lawyers for the federal government presented Truth Social facts in the courtroom.
And it’s pretty obvious to see why the judge sided with us. When you talk about real facts, the question becomes really easy—and it is that those extreme circumstances don’t exist for the military to be walking the streets of our city.
Sargent: Well, to go into the guts of that, by law, Trump can only federalize the National Guard if there’s an invasion by a foreign nation, a rebellion, or if the laws can’t be executed with regular forces. The crucial thing though is that while the president has a fair amount of deference in determining whether those things are happening, you can’t just make it up whole cloth. The judge cited a few examples of violence but said it doesn’t come close to reaching those conditions. Can you talk about the importance of that aspect of the ruling?
Rayfield: Yeah, and I think it’s important for all of us to be grounded. We actually do want a rational president to have deference in being able to determine when there’s an emergency that might necessitate the military, right? You wouldn’t want to second-guess a president—is this an invasion or is this not? You want to give them a ton of deference to react immediately.
What made this very unique is that, right now, it’s not even a close call. You can give all the deference you want to the president, and still—none of those circumstances exist.
And I often joke, the only rebellion going on in Oregon right now is when I try to feed my son a vegetable. So it’s just a very strange dynamic. The president is really just fixated on social media gossip, which is incredibly reckless to rely upon when you’re deploying the United States military.
Sargent: Well, I want to try to get at Trump’s bad faith in all this. The judge cited a tweet from Trump after a period of really minimal activity outside the Portland ICE facility. Trump tweeted that he’s directed the defense secretary to protect, quote, “war-ravaged Portland and any of our ICE facilities under siege from attack by Antifa and other domestic terrorists.”
The judge looked at that and said Trump can’t just make up “facts on the ground”—said Trump was “untethered from the facts.” So, AG, didn’t Trump’s bad faith work against him here?
Rayfield: Unquestionably, right? But that’s what’s so amazing about our court system in the United States. It’s a place where we get to go in and talk about truth. We get to talk about facts. And we have a judge—no matter where they come from in life—who gets to evaluate the circumstances on the ground and make these decisions.
It doesn’t matter what the president says. You can say whatever you want, but you still have to be able to back it up with real facts. And to be able to push back against the president and say, Hey, no, this is unacceptable, is incredibly important.
I always kind of take these things back to raising a child, right? You have to set boundaries for your child, and you have to set boundaries for your president. That’s the Constitution and the laws of our country. Those boundaries are incredibly important. If you don’t enforce those boundaries, you’re going to have a child that’s going to run amok—or you’re going to have a president that going to run amok. And that’s what the founders of our Constitution did not want: too much power in the executive branch.
Sargent: Right. And that brings me to Stephen Miller, because that’s exactly what he does want. Stephen Miller erupted in fury a couple of times on Twitter over this and other related stuff. He essentially said that the judge was an insurrectionist. Isn’t the upshot of that basically that Miller wants the president to have absolute and unlimited deference to simply declare that something is an emergency—or whatever the trigger is—in order to bring in the military whenever he wants, for whatever purpose he wants?
Rayfield: Yeah. I mean, what Stephen Miller says is incredibly inflammatory, and it’s incredibly short-sighted, because if you start expanding the power of the executive branch, those powers will be expanded for the next Democratic president. And they need to recognize the problem with that. It’s not just a problem with a Republican president—it’s a problem with a Democratic president. We have coequal branches of government for a reason, and we don’t want to start expanding that. And so I think this is the absurdity that Miller brings with him as he starts kind of going forward—incredibly short-sighted.
Sargent: Well, for sure. I want to ask, though, Attorney General—it seems to me that California joining your lawsuit suggests a kind of new direction all this could take, in which states really start banding together to fight back against what appears to be this administration’s strategy of pitting states against one another. You probably saw, obviously, that the Texas governor essentially said, We’re happy to send the National Guard to any blue area. That’s not exactly how he put it, but that was the essence of it.Are there discussions underway among attorneys general from states like yours about where this is all going, and what to do about it in a more collaborative way?
Rayfield: As Democratic attorneys general, we talk all the time. We talk about being ready and making sure that we are in a position to defend the rule of law immediately. It’s why we had our lawsuit filed in less than six hours of having formal notice that he was trying to federalize the Oregon National Guard.
The reason we brought California in is now the president added a new element—he added in the California National Guard. It was really important to have AG Rob Bonta in our case, working with us and bringing forth some of these arguments.
It’s a weird place in this world where we start start pitting conservative states against Democratic states and talk about using the military of one state—dragging them into another state—and the sovereignty of each state in our country. So it’s a really new dynamic that we’re experiencing together right now. And I think it’s incredibly important that when we’re talking, we’re speaking with one voice as Democratic attorneys general—about enforcing that rule of law and reminding people why the Constitution put these boundaries in place in the first place.
Sargent: Well, do you expect this to go beyond California? I expect the president to try and do this more with other blue state national guards. Are you discussing with other attorneys general beyond California scenarios like that? What might they look like?
Rayfield: Yeah. I mean, we’re ready for everything. What I would tell people is to really start hearing the president—hear what the president is saying right now. At every rally he goes to—yesterday, at the 250th anniversary of the Navy—what he’s talking about is using the United States military as police in our communities, a police force within our communities to reduce crime. That is unlawful. That is un-American. And that is not the America that any of us grew up in. That is not the America that any of us were taught about in grade school.
Right now it’s, “Hey, I’m just trying to protect a building.” But what he’s saying in court is vastly different from what he’s saying at his rallies. And he’s beginning this process of normalizing the use of the American military in our cities. That can never be normal. We have to fight to make sure it’s never normal.
He started in California, D.C., Memphis. He’s doing it in Illinois, Oregon. He’s talking about it increasingly—and that’s absurd. We should be talking about the health care they’re trying to strip away. We should be talking about the food benefits. All of a sudden, all this is going on and we’re not talking about the Epstein files anymore. It draws attention away.
I used to want to be a magician when I was a kid, and misdirection was always a key thing we talked about when you wanted to be a magician. This is pure misdirection—in a way that is an abuse of our Constitution and our laws.
Sargent: Well, and in addition, it’s actually going even further than just using the military as police. He’s essentially talking about turning the military loose against Americans of the other party. In one of his speeches the other day, he said it straight out. He was talking to service members, and he said, I have a gnat on my shoulder—you know, the Democrats who supposedly want to let in the “illegals.” He said that to members of the armed forces. So isn’t he really talking here about turning the military loose against fellow Americans?
Rayfield: I mean, it is not beyond reason that that could be what he’s thinking about—which is scary, that that’s even a possibility of the intent of the president of the United States. That’s absurd. But you’ve got to remember, look again at the totality of how this man leads. He leads through fear. He’s talking about rigging our elections to maintain power in Congress. He has been threatening the free press in the United States—again, through fear. This is who this man is. This is not who America is.
And that’s why, again, we have to continue to push back against this. And ask: What is this vision for America? Because that’s not my vision. I don’t want to live in a world where we’re using tariffs as a regressive tax on Americans, or where we’re stripping people of essential benefits—health care, food assistance—that they desperately need.
That’s not the America any of us were raised in. And he’s going in a very different direction. We have to wake up to that reality.
Sargent: Well, I wonder whether, given all this, we could be hearing a little more from national Democrats about what’s happening. Would you like to see something like a joint statement from congressional leadership—the party leadership—essentially saying the entire party is united, and inviting any Republicans who want to join, saying: We are all united against Trump’s efforts to turn the military loose in American cities? Maybe something expressing more urgency from the party as a whole. Would you like to see that?
Rayfield: Yeah, I think we all have to say that. I think Republicans have to say that. It has to be unified—from Democrats and Republicans—and it has to be unified in community. This is something that, frankly, seems so absurd. I mean, I can’t even believe that we’re talking about this. That’s how absurd this is, because it’s so far-fetched.
I don’t think people are really grasping the reality of what’s going on in America right now because it is so absurd. And I’m hopeful that a year from now we’re not talking about this. But remember—we’re not even one year into this man’s presidency. And he’s just beginning.
Sargent: Absolutely. I would point out, though, the Republican Party is all in with Donald Trump. So it is unfortunately left to the Democratic Party to communicate this. And to your point about how it’s all so far-fetched, that maybe people will have trouble internalizing it or accepting what’s happening—maybe we do need to hear more from the national Democratic Party precisely for that reason, to drive home to people what’s actually happening. What do you think of that?
Rayfield: Unquestionably. But let’s also not forget some of the real positive things coming from some Republicans. So I do want to throw some optimism into the world. Earlier this year, we had Supreme Court justices pushing back against the president as he was really attacking the independence of the judiciary. That’s a good sign.
Now, that doesn’t mean I agree with all their decisions as they’re going through what are a lot of procedural decisions, because I absolutely don’t. And it doesn’t mean that I don’t think the Court is politicized, and I don’t think there are problems with it, because I do. But that’s still a really good sign.
A couple of weeks ago, who came out of the blue to defend the free press? Senator Ted Cruz. That’s not a bad thing to have in your back pocket, right? So when we really start stretching the bounds of our democracy, we’re seeing some of these red flags pop up—cautionary signs—that give me hope that you have actually elected officials who aren’t too fearful of President Trump. Because they absolutely are afraid of him. And they won’t stand up to him. But we also have Republicans in our cities and our communities who really know, deep down, this is not okay. And we can’t allow this to continue.
Sargent: Do you talk to Republicans about trying to get them to come out and say something about how unacceptable turning the American military loose in U.S. cities is?
Rayfield: Oh, absolutely. My dad’s a Republican. And when this first started to happen—he was in the military, this man has served more than 30 years—he sends me text messages talking about, Oh my gosh, Posse Comitatus Act, right? This is real common-sense stuff. But it is things I think we’ve taken for granted in society, because we’ve had the fortune—the privilege—living in the United States where having the military on our streets just hasn’t been a reality for us.
It’s not the same when you go to a third-world country. Anyone who’s traveled through an airport and seen the visual presence of what it’s like to live in an authoritarian country knows it’s a very different existence. And that can never become a reality for us.
Sargent: Certainly seems like that’s something Donald Trump and Stephen Miller want to acclimate people to, don’t you think?
Rayfield: It certainly feels that way. I really want to believe that that is not the case. But every day that goes by—every press conference that goes by—the things that stick out to me in the last week is really the accumulation of all those moments where the president actively talks about using the military for purposes that are expressly prohibited.
And then, moreover, saying—boldly, to all of the top brass in our United States military—talks about how he wants to train them in our cities. Just imagine if any Democratic president had ever said that. We would all lose our minds.
Sargent: So right now we’re waiting on an appeals court to render a judgment, right? What do you expect from the appeals court exactly?
Rayfield: Yeah, so right now—for those who haven’t really been tracking it—you get a temporary restraining order, that’s this immediate thing where you get in front of a judge to kind of pause the action and preserve the status quo, if you will. And that’s what we have in place.
We have two temporary restraining orders effectively telling the president, hey, you don’t get to bring the National Guard into Oregon—you haven’t met those conditions. The federal government is trying to take those temporary restraining orders, elevate them to the Ninth Circuit, and then place a pause on those orders—what we would call a stay—which would allow the president to continue with moving the National Guard into Oregon.
So we expect in the next, you know, probably 24 to 48 hours, the ruling will say whether or not we’re going to move forward with that stay. The federal government has asked for that to happen by the end of, I believe it s today. So we’re hopeful to hear back that no, we’re not going to move forward, and they will not grant the federal government’s motions.
And then we’ll continue with the typical legal process—moving toward an ultimate decision on the merits of the case. Again, this was a temporary, quick order to allow the court to really process the full facts on the ground and make a fully informed decision to what we believe is a ruling that will pause the president’s actions trying to mobilize the military in Oregon.
Sargent: Now to be clear though, even if the government were to get a stay on the temporary restraining order, you guys still will have won that first round in court because the court, the judge did say that they expect you to prevail in the long run, correct?
Rayfield: That’s right. And the wonky thing is to get a temporary restraining order, get a preliminary injunction, these are kind of these early motions. That’s an incredibly high bar to get that. You have to show the likelihood of prevailing on the merits of the case. You have to show irreparable harm. Two really high burdens to prove in a court. And we’ve done that twice now, twice in one week. So the likelihood of us moving forward again, presenting more facts, I expect the outcome to remain the same over the long term.
Sargent: Just to wrap this up, the judge also issued a strong denunciation of Trump that I’d like to quote: “This is a nation of constitutional law, not martial law.” AG, that’s what’s at stake here, I think. Do you expect this to go to the Supreme Court and how do you predict the Supreme Court will handle the underlying issues?
Rayfield: You know, the optimist in me says, hey, there’s nothing to see here, and the Supreme Court will sit there and say, hey, the lower-court judge got it right. And I really do believe the lower court judge got it right. She’s very thoughtful, was in the weeds, understands what’s at stake.
I think the Supreme Court—even if it makes it to them—will understand what’s at stake here in America. And again, sometimes even having the Supreme Court rule in our favor might be what this country needs to see to really know that even this conservative court—even a judge appointed by Trump—sees it differently.
We shouldn’t need that in society right now, but because we’re so polarized, because we have politicians on both sides who continue to push the polarization, it’s tough for people to know really who to trust. So to have some of these validators—to have a judge who’s more conservative, appointed by Trump, rule in favor and talk, not just philosophically but practically, about what our democracy means—is incredibly important right now in these times. I just wish more people would listen.
Sargent: I hope you’re right. I just want to ask, though—do you think the Supreme Court sees it the way we see it? Do the Supreme Court’s conservatives, the majority, think we’re at a precipice moment where things like this are required?
Rayfield: I believe all nine of those justices believe that. I believe all nine of those justices understand the reality of where we are in America right now. I don’t think you can walk through, read, pick up a newspaper, and have any other opinion. So I really do believe that when some of these really significant cases get to them, they’re going to take a strong look at them—and they’re going to do what’s right, ultimately. I can’t believe they don’t see what all of us are seeing right now. They’re incredibly well-educated, smart judges.
Sargent: Attorney General, really hope you’re right. Thank you so much for coming on with us today. We really appreciate it.
Rayfield: Thank you. Take care.
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