The Trump administration has sent dozens of military lawyers to prosecute civilians in three major American cities in the past year, as part of a streak of overwhelming federal law enforcement crackdowns across the country.
The decision to detail those members of the Judge Advocate General’s Corps (JAGs), who ordinarily advise military officials on the legality of orders and defend or prosecute service members in courts-martial, has little precedent in American history and has caused former JAGs and civil liberties advocates to worry about the blurring of traditional boundaries between everyday law enforcement and the military. Democratic lawmakers tried to limit the use of JAGs in this summer’s negotiations over the must-pass defense appropriations bill, arguing they were distracting from “critical military work,” but saw those provisions axed by the GOP.
One of the biggest examples of using military lawyers in purely civilian contexts has been in Memphis, Tennessee, where a swarm of federal agents and soldiers have been deployed since last October through an executive order issued by President Trump. The sweeping intervention in the city has involved the federalization of Tennessee state troopers, who now often ride alongside agents from Homeland Security Investigations, the investigative arm of Immigration and Customs Enforcement (ICE), as well as the deployment of agents from the U.S. Marshals, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the FBI, the Drug Enforcement Administration, the Diplomatic Security Service—a law enforcement wing of the State Department—and National Guard troops, after the state’s Republican governor agreed to the president’s demands to call them up.
Those disparate law enforcement offices now work under the umbrella of the Memphis Safe Task Force, which Trump created last September, apparently at the insistence of Union Pacific Railroad CEO Jim Vena. During a White House visit, Vena made an offhand comment about crime in the city while lobbying the president to back his company’s $85 billion merger bid with Norfolk Southern.
In Memphis, a swarm of federal agents and soldiers have been deployed since last October through an executive order issued by President Trump.
The bulk of the task force’s work has come through aggressive traffic stops (which totaled 35,000 in its first two months), around-the-clock foot patrols, and mass immigration-related sweeps, which, according to a recent ProPublica analysis, have rarely turned up violent offenders. The feds stood up the task force in the same month that the city had recorded a 25-year low in overall crime. Task force members, meanwhile, fatally shot four people between May and July of this year.
The militarization of Memphis’s streets has carried over to the federal district court that covers the city, where prosecutors have been working with military lawyers to issue hefty charges for crimes investigated by multiple federal agencies. Those charges have been filed under statutes involving impeding or assaulting federal law enforcement, interstate commerce regulations for gun possession, and street-level drug dealing.
“We’ve had a bright line between the military and civilian sphere,” said Eugene Fidell, a former JAG who now teaches military law at Yale Law School. “We are told endlessly that the military is a specialized society. Well, the government can’t be saying that when it’s convenient to argue that you need special rules for the military, and then when it feels like it … suddenly changes its tune.”
The U.S. Attorney’s Office for the Western District of Tennessee, which covers Memphis and has housed at least 20 detailed JAGs, did not respond to questions about how the office is ensuring the separation of military and civilian affairs, and about the necessity or wisdom of calling up military lawyers to prosecute street crime. The office wrote in a statement only that it is “proud of and thankful for the coordination and personnel-sharing between the Department of Justice and the Department of War.”
Courts thus far have not balked at the effort. Earlier this year, a magistrate judge in Minnesota ruled that the federal government was within its rights to call up JAGs under an exception to the Posse Comitatus Act, which curtails the use of the military for domestic law enforcement.
Announcing the call-up back in January, the U.S. attorney in Memphis, D. Michael Dunavant, said his office needed the military lawyers to help churn through “increased court dockets” as the feds have taken over a large swath of law enforcement responsibilities in the city, seeking “aggressive prosecution, complex investigations, financial enforcement, and large-scale saturation of besieged neighborhoods.” Even with the reassigned JAGs, the U.S. Attorney’s Office has still been hiring more civilian prosecutors. In February, the office publicized five new assistant U.S. attorney hires.
The JAGs occasionally lead cases themselves, but according to a review of court records, they are more often co-counsel with staff prosecutors in the office.
“The military lawyers, the manner that I have seen them deployed because of their experience, I’m sure it helps the U.S. Attorney’s Office, but what I have seen them doing is very routine, first-year, second-year lawyer type stuff, and there’s always an assistant U.S. attorney from the office with them,” said Michael Stengel, a criminal defense attorney in Memphis. “It’s almost like they’re carrying a bag.”
That hasn’t stopped JAGs from getting pulled into the office’s self-described “aggressive” work. One of Stengel’s former clients wound up being prosecuted twice for the same alleged crime––threatening to assault a federal law enforcement officer––by a JAG assigned to the office: first by criminal complaint, which was dismissed thanks to lack of probable cause, then by indictment in front of a grand jury, which, after viewing video evidence, found Stengel’s former client not guilty.
The former client, Stengel says, had been intoxicated one night and shouting outside of a liquor store, before being asked to leave the area by National Guard troops, whom he then verbally taunted from across the street. “Frankly, if it wasn’t for this task force, in my opinion, he would have been charged with public drunkenness and probably released the following morning, after spending the night at 201 [the county jail].”
The military lawyer assigned to the case had charged Stengel’s client under a criminal statute that had been used only twice in Memphis in the 21st century before the second Trump administration, according to records reviewed by the Prospect. Since the beginning of Trump’s second term, the U.S. Attorney’s Office in Memphis has used that statute three times. The U.S. Attorney’s Office did not answer questions about why it pursued an indictment of Stengel’s client after its initial criminal complaint had failed, or how it had decided to assign a military lawyer to lead the case, which also included an appearance by a staff assistant U.S. attorney.
“The military has a phrase, ‘mission creep,’” said former JAG Fidell. “This is the mother of all mission creeps.”
