Yes, Stephen Miller Said Trump Had ‘Plenary Authority’ In A CNN Interview
An odd thing happened on cable news this week.
Stephen Miller, one of President Donald Trump’s closest advisers, asserted during a Monday CNN interview that his boss had “plenary authority” — a legal term meaning total and absolute power — as he answered a question about Trump’s desire to send National Guard troops into Portland, Oregon.
“Under Title 10 of the U.S. Code, the president has plenary authority,” Miller stated.
“Has —” he began.
Then, abruptly, he clammed up, blinking mutely before the camera.
Host Boris Sanchez asked if Miller could hear him before chalking up his silence to a technical glitch and breaking to commercial.
Once he returned, Sanchez repeated his question, asking Miller whether Trump planned to abide by a federal judge’s expanded ruling that bars him from ordering troops from any state into Portland.
This time, Miller did not use the phrase “plenary authority.”
“I was making the point that under federal law, Section, uh, Title 10 of the U.S. Code, the president has the authority, anytime he believes federal resources are insufficient, to federalize the National Guard to carry out a mission necessary for public safety,” Miller said, sidestepping the term. Title 10 is a portion of federal law covering the military.
When CNN clipped the interview with Miller to post on the network’s YouTube page, it did not include the “plenary authority” remark at all, leading to criticism in some corners of the internet.
A spokesperson for the network confirmed that there had been a technical glitch during the broadcast.
What appeared to happen was this: Miller’s earpiece started to play a conflicting audio feed, CNN broke to a commercial to sort it out, and the network shared a cleaner, tidier version of the interview to its social media channels.
Sanchez, however, did not ask Miller to explain why he used the phrase “plenary authority,” a term he has rarely or never used in public before when discussing the powers of the president. He opted instead to go after Miller’s false claim about the level of violence seen on the streets of Portland over the last several months. (The clear lack of widespread violence underpinned the federal judge’s decision to block Trump from sending in the guard.) Later, he pressed Miller to explain why he thinks Trump has the authority to send in troops to Democrat-run cities.
Miller has, of course, long been a brash advocate for executive power.
In this case, he is misguided.
“The president does not have plenary authority over the National Guard,” University of Michigan law professor Richard Primus told HuffPost.
Trump has authority over the guard to the extent that Congress permits it. Under federal law, a president can only deploy troops around the U.S. if the country is under attack, if there is a rebellion or danger of rebellion, or if the president is unable to execute laws with the assistance of regular law enforcement agencies. Federal judges have said that Trump has misused the guard in the case of Los Angeles and Portland because none of those conditions applied.
“The president can’t just lie his way to the authority to mobilize the National Guard,” Primus said.
Brian Frazelle, deputy chief counsel of the Constitutional Accountability Center, pointed out that the Constitution and federal law do give the president certain plenary powers — including plenary power involving the National Guard. That power is simply very narrow, relating to the number of troops that may be sent to carry out a mission.
“There wouldn’t be much sense in Congress establishing conditions like that in the statute if a president could completely ignore them without any check by the courts,” Frazelle said.
“It certainly does concern me,” he said of Miller’s use of the term. “I won’t say it surprises me, though, based on the arguments that the administration has been making in court.”
“Unlike some of the things that you hear from administration officials, this one doesn’t come completely out of left field. Nevertheless, it’s still flat wrong, and there’s no judicial precedent to back up this assertion.”
White House spokesperson Abigail Jackson told HuffPost, “The facts haven’t changed: President Trump exercised his lawful authority to protect federal assets and personnel in Portland and Chicago following violent riots and attacks on law enforcement.”