legal expert

There are few laws President Trump name-checks more frequently than the Insurrection Act.

A 200-year-old constellation of statutes, the act grants emergency powers to thrust active-duty soldiers into civilian police duty, something otherwise barred by federal law.

Trump and his team have threatened to invoke it almost daily for weeks — most recently on Monday, after a reporter pressed the president about his escalating efforts to dispatch federalized troops to Democrat-led cities.

“Insurrection Act — yeah, I mean, I could do that,” Trump said. “Many presidents have.”

Roughly a third of U.S. presidents have called on the statutes at some point — but history also shows the law has been used only in moments of extraordinary crisis and political upheaval.

The Insurrection Act was Abraham Lincoln’s sword against secessionists and Dwight D. Eisenhower’s shield around the Little Rock Nine, the young Black students who were the first to desegregate schools in Arkansas.

Ulysses S. Grant invoked it more than half a dozen times to thwart statehouse coups, stem race massacres and smother the Ku Klux Klan in its South Carolina cradle.

But it has just as often been wielded to crush labor strikes and strangle protest movements. The last time it was invoked, Defense Secretary Pete Hegseth was in elementary school and most U.S. soldiers had not yet been born.

Now, many fear Trump could call on the law to quell opposition to his agenda.

“The Democrats were fools not to amend the Insurrection Act in 2021,” said Kevin Carroll, former senior counsel in the Department of Homeland Security during Trump’s first term. “It gives the president almost untrammeled power.”

It also precludes most judicial review.

“It can’t even be challenged,” Trump boasted Monday. “I don’t have to go there yet, because I’m winning on appeal.”

If that winning streak cools, as legal experts say it soon could, some fear the Insurrection Act would be the administration’s next move.

“The Insurrection Act is very broadly worded, but there is a history of even the executive branch interpreting it narrowly,” said John C. Dehn, an associate professor at Loyola University Chicago School of Law.

The president first floated using the Insurrection Act against protesters in the summer of 2020. But members of his Cabinet and military advisors blocked the move, as they did efforts to use the National Guard for immigration enforcement and the military to patrol the border.

“They have this real fixation on using the military domestically,” Carroll said. “It’s sinister.”

In his second term, Trump has instead relied on an obscure subsection of the U.S. code to surge federalized soldiers into blue cities, claiming it confers many of the same powers as the Insurrection Act.

Federal judges disagreed. Challenges to deployments in Los Angeles, Portland, Ore., and Chicago have since clogged the appellate courts, with three West Coast cases before the U.S. 9th Circuit Court of Appeals and one pending in the 7th Circuit, which has jurisdiction over Illinois.

The result is a growing knot of litigation that experts say will fall to the Supreme Court to unwind.

As of Wednesday, troops in Oregon and Illinois are activated but can’t be deployed. The Oregon case is further complicated by precedent from California, where federalized soldiers have patrolled the streets since June with the 9th Circuit’s blessing. That ruling is set to be reheard by the circuit on Oct. 22 and could be reversed.

Meanwhile, what California soldiers are legally allowed to do while they’re federalized is also under review, meaning even if Trump retains the authority to call up troops, he might not be able to use them.

Scholars are split over how the Supreme Court might rule on any of those issues.

“At this point, no court … has expressed any sympathy to these arguments, because they’re so weak,” said Harold Hongju Koh, a professor at Yale Law School.

Koh listed the high court’s most conservative members, Clarence Thomas and Samuel A. Alito Jr., as unlikely to push back against the president’s authority to invoke the Insurrection Act, but said even some of Trump’s appointees — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — might be skeptical, along with Chief Justice John G. Roberts Jr.

“I don’t think Thomas and Alito are going to stand up to Trump, but I’m not sure that Gorsuch, Kavanaugh, Barrett and Roberts can read this statute to give him [those] powers.”

The Insurrection Act sidesteps those fights almost entirely.

It “would change not only the legal state of play, but fundamentally change the facts we have on the ground, because what the military would be authorized to do would be so much broader,” said Christopher Mirasola, an assistant professor at the University of Houston Law Center.

Congress created the Insurrection Act as a fail-safe in response to armed mobs attacking their neighbors and organized militias seeking to overthrow elected officials. But experts caution that the military is not trained to keep law and order, and that the country has a strong tradition against domestic deployments dating to the Revolutionary War.

“The uniformed military leadership in general does not like getting involved in the domestic law enforcement issue at all,” Carroll said. “The only similarities between police and military is that they have uniforms and guns.”

Today, the commander in chief can invoke the law in response to a call for help from state leaders, as George H.W. Bush did to quell the 1992 Rodney King uprising in L.A.

The statute can also be used to make an end-run around elected officials who refuse to enforce the law, or mobs who make it impossible — something Eisenhower and John F. Kennedy Jr. did in defense of school integration.

Still, modern presidents have generally shied from using the Insurrection Act even in circumstances with strong legal justification. George W. Bush weighed invoking the law after Hurricane Katrina created chaos in New Orleans but ultimately declined over fears it would intensify the already bitter power struggle between the state and federal government.

“There are any number of Justice Department internal opinions where attorneys general like Robert Kennedy or Nicholas Katzenbach said, ‘We cannot invoke the Insurrection Act because the courts are open,’” Koh said.

Despite its extraordinary power, Koh and other experts said the law has guardrails that may make it more difficult for the president to invoke it in the face of naked bicyclists or protesters in inflatable frog suits, whom federal forces have faced down recently in Portland.

“There are still statutory requirements that have to be met,” said Dehn, the Loyola professor. “The problem the Trump administration would have in invoking [the law] is that very practically, they are able to arrest people who break the law and prosecute people who break the law.”

That may be why Trump and his administration have yet to invoke the act.

“It reminds me of the run-up to Jan. 6,” Carroll said. “It’s a similar feeling that people have, a sense that an illegal or immoral and unwise order is about to be given.”

He and others say an invocation of the Insurrection Act would shift widespread concern about military policing of American streets into existential territory.

“If there’s a bad faith invocation of the Insurrection Act to send federal troops to go beat up anti-ICE protesters, there should be a general strike in the United States,” Carroll said. “It’s a real break-the-glass moment.”

At that point, the best defense may come from the military.

“If a really unwise and immoral order comes out … 17-year generals need to say no,” Carroll said. “They have to have the guts to put their stars on the table.”

At its core, a civil suit is about money. Nobody pleads guilty. Nobody goes to prison. Somebody either pays somebody else or doesn’t.

That’s why roughly 95% of civil suits nationwide reach a settlement ahead of or during trial, legal experts say. Pretrial discovery is usually comprehensive and mediation can produce agreements. Trials are costly, and plaintiffs and defendants alike overwhelmingly prefer to eliminate the risk of an all-or-nothing jury verdict by agreeing on a compromise dollar figure.

That’s also why the case brought by the family of deceased Angels pitcher Tyler Skaggs against the Angels has surprised some legal experts. A recent one-day settlement conference between lawyers went nowhere, and both sides are focused on a trial, which begins Monday in Orange County Superior Court with opening statements and witness testimony.

Skaggs was found dead in his hotel room in Southlake, Texas, on July 1, 2019, before the Angels were scheduled to start a series against the Texas Rangers. The Tarrant County medical examiner conducted an autopsy and found that in addition to the opioids, Skaggs had a blood-alcohol level of 0.12. The autopsy determined he died from asphyxia after aspirating his own vomit, and that his death was accidental.

Former Angels communications director Eric Kay was sentenced to 22 years in federal prison Tuesday after being convicted of providing the counterfeit oxycodone pills laced with fentanyl that led to the Skaggs’ overdose.

Prosecutors alleged Kay sold opioids to Skaggs and at least five other professional baseball players from 2017 to 2019. Several players testified during the trial about obtaining illicit oxycodone pills from Kay.

The Skaggs family filed their lawsuit in June 2021, alleging the Angels knew, or should have known, that Kay was supplying drugs to Skaggs and other players. Testimony established that Kay was also a longtime user of oxycodone and that the Angels knew it.

The Angels responded by saying that a former federal prosecutor the team hired to conduct an independent investigation into the circumstances that led to Skaggs’ death determined no team executives were aware or informed of any employee providing opioids to any player.

“The lawsuits are entirely without merit and the allegations are baseless and irresponsible,” the Angels said in a statement shortly after the lawsuit was filed. “The Angels organization strongly disagrees with the claims made by the Skaggs family and we will vigorously defend these lawsuits in court.”

The team has not budged from that position even after years of discovery that included more than 50 depositions, a pretrial ruling by the judge that Kay’s conviction cannot be questioned during the civil trial and Judge H. Shaina Colover denying the Angels’ motion for summary judgment by saying, “There is evidence that … Angels baseball had knowledge that Kay was distributing drugs to players and failed to take measures to get him to stop.”

The settlement conference held between lawyers for the Angels and the plaintiffs — which include Skaggs’ widow Carli, mother Debra Hetman and father Darrell Skaggs — merely underscored that the two sides see the case very differently, according to people close to the negotiations not authorized to speak publicly about the case.

Settlement conferences are confidential and the California Evidence Code protects statements and conduct during conferences from being used to prove liability. However, legal experts said it is clear the two sides remain far apart in assessing the value of the case.

“They definitely could have been talking settlement all along,” said Edson K. McClellan, an Irvine lawyer who specializes in high-stakes civil and employment litigation. “I would be surprised if they haven’t engaged in some settlement negotiations.”

Damages sought by the Skaggs family include his projected future earnings and compensation for the pain and anguish the family suffered.

Lawyers for the Skaggs family originally said they were seeking $210 million, although that number has risen during four years of pretrial litigation. A claim by Angels lawyer Todd Theodora in a hearing this summer that the plaintiffs were asking for $1 billion was shot down last week by a person in the Skaggs camp who said “we are not asking anywhere remotely close to that. My god, the whole world would turn upside down.”

Skaggs had unquestionable earning potential. The left-handed former first-round draft pick was only 27 and an established member of the Angels starting rotation when he died. He was making $3.7 million in 2019 and likely would have made at least $5 million in his final year of arbitration before becoming a free agent after the 2020 season.

Although Skaggs posted average statistics — his earned-run average was over 4.00 in each of his seven seasons and his career won-loss record was 28-38 — free-agent contracts for starters under 30 range from three to six years for $15,000 to $25,000 a year. And he could have merited another contract in his mid-30s.

Assuming he remained healthy — Skaggs missed the 2015 season because of Tommy John surgery and had other injuries during his career — experts said a reasonable prediction of future earnings could exceed $100 million. However, his established history of drug use could dampen the projections.

“Speculative projections, making the assumption that he played another 10 years, push an award into nine figures, but honestly, looking at the level of drug abuse, jurors could have doubts,” said Lauren Johnson-Norris, an Orange County-based defense lawyer.

Pain, suffering and mental anguish damages could add to an award either by jury verdict or settlement. Legal experts expect Skaggs’ lawyers — who include nationally renowned Rusty Hardin and Shawn Holley — to point out that losing a husband or a son that your life centered around is worth an award.

Opening statements this week should illustrate why the two sides aren’t close to a settlement.

Skaggs’ lawyers will say the Angels are responsible for his death because they knew Kay was a habitual drug user that procured opioids for players, pointing to evidence that Angels team physician Craig Milhouse prescribed Kay with hydrocodone 15 times from 2009 to 2012.

Also likely to be mentioned will be Angels star Mike Trout who, according to the deposition of former Angels clubhouse attendant Kris Constanti, offered to pay for Kay’s drug rehabilitation in 2018.

The Angels will counter by telling the jury that prosecutors in Kay’s criminal trial concluded he was not acting as an employee when he gave Skaggs the fentanyl-laced oxycodone. Kay was charged and convicted, not the team.

Skaggs and Kay, the Angels will contend, were two men engaging in criminal misconduct on their own time and they concealed it from the team. The Angels lawyers will tell the jury that taking opioids prescribed by a physician during recovery from surgery is vastly different than Skaggs chopping up and snorting counterfeit pills that were not prescribed for him.

Witness testimony will begin after the opening statements, and current and former Angels executives Tim Mead, Tom Taylor and John Carpino are expected to be the first called.

And as the lawyers make their best arguments and witnesses provide testimony in a trial expected to take more than two months, both sides will be silently evaluating whether pursuing a settlement is in their best interest.

An agreement could be reached at any time, abruptly ending court proceedings.

“Sometimes what triggers a settlement is a court ruling or a witness performing well or poorly,” McClellan said. “As the trial unfolds and evidence is actually coming in, risk is brought into focus and makes plaintiffs and defendants evaluate their case in a more clear light.”