The question is not rhetorical. I am not a lawyer, and I’d really appreciate anybody with legal expertise who can answer the question I’m going to lay out in the comments.
Rachel Maddow broke the news last night that Jeff Sessions’ DOJ had petitioned the Defense Department to provide 21 Judge Advocate Generals, or JAG’s, military lawyers to take 179 day tours to Texas, Arizona, and New Mexico posts to assist in prosecuting illegal immigrants that crossed the border under federal law.
As the words came out of Rachel’s mouth, the first words that tumbled out of my mouth were “Posse Comitatus.” This law prohibits US military personnel from assisting in the enforcement of domestic US law. My understanding is that this is why Governors are required to call out national guard troops to quell unrest as opposed to army or marine troops, the state owns the national guard units.
A former DOJ lawyer gave this example, but I think there’s a flaw to it. The guest said that if an active military service member shoplifts from the PX, he is court martialed, with a JAG prosecuting. If the members wife does the shoplifting, she is arrested and tried in a civilian court, because she’s not in the military. But a JAG could be temporarily deputized as an AUSA to prosecute the case in civil court, since it took place ion a military base. So far that all makes sense.
But in order for that explanation to apply, there has to be some form of military flavor to the crime. In the case above, the crime was committed on a military installation. These undocumented immigrants are not on military installations, and they aren’t breaking military law. They are setting foot on US soil, allegedly illegally, and are being prosecuted under civilian existing federal law.
Can a military lawyer, on active duty with the US Army, being paid by the army, be dragooned into trying civilian cases, on civilian crimes, under civilian law, in civilian court, without crossing the Posse Comitatus line? My every instinct tells me that this is illegal under Posse Comitatus, that if the military is going to be involved in the prosecution, then the military must have either been involved in, or have jurisdiction over the original crime. I can see neither here.
I will be checking the comments regularly to see if there is somebody out there with the knowledge to definitively asnwer this question for me…This is actually of great interest to me, as it seems like just one more Trump government overreach in a desperate attempt to bail themselves out of another mess they’ve gotten into…
