Elected leaders are challenging the erasure of documents that questioned the legality of the presence and authority of the National Guard in Memphis.
According to the Tennessee Senate Democratic Caucus, two recent opinions from the Attorney General’s office have been deleted. Officials said these opinions raised “serious concerns about the constitutionality of Gov. Lee’s Trump-inspired guard mission.”
Sen. Jeff Yarbro (D-Nashville) held a press conference today at the Cordell Hull Office Building to discuss this issue.
According to Yarbro, the Attorney General’s office published legal opinions in 2021 and 2024 that instructed state leaders on how to act in their official capacity. The senator said that there is now a blank page for where these opinions were previously.
“There’s no date about when this change was made, there’s no rationale for why it was made – it’s just gone,”Yarbro said.
The senator’s office provided the following text summaries of the opinions in question:
2021 Attorney General’s Opinion
Opinion 21-05, published in May 2021 by former Attorney General Herbert Slatery, raised serious doubts about the legality of using the Guard for police missions. Slatery wrote the opinion at the request of Sen. Rusty Crowe who wanted legal clarity about the governor’s power to mobilize the National Guard in response to civil unrest. That opinion has since been deleted and replaced with a blank page on the AG’s website.
2024 Attorney General’s Opinion
Opinion 24-01, published in January 2024 by Skrmetti’s office, affirmed the 2021 opinion, acknowledging that the National Guard constituted a militia bound by state constitutional limits. It has since been rewritten — without public announcement, legal rationale or date of revision — to cast doubt on whether those limits apply.
Yarbro went on to say that the attorney general did not issue a different opinion that said there is “constitutional validity” to deploying troops such as the National Guard. His office seemingly withdrew their previous guidance.
“The reason that Americans are not used to seeing troops in combat fatigues patrolling American cities is not because nobody’s ever thought of it before — it’s because it’s illegal,” Yarbro said. “For 150 years the federal government clearly prohibited that — and in Tennessee that prohibition goes back even longer.
Whether or not the Guard’s presence is constitutional has been a point of concern for many. Shelby County Mayor Lee Harris claimed that Tennessee Gov. Bill Lee did not have the constitutional right to send National Guard troops into Tennessee Communities.
“Here’s what the Tennessee Constitution says about a Tennessee Governor sending National Guard troops into Tennessee communities this week,” Harris said on social media. “Let me summarize: He can’t do it. #FreeTennessee.”
Tennessee’s constitution says that the military should only be called in cases of “rebellion or invasion”, and that the General Assembly should decide if “public safety requires it.”
Yarbro referenced an opinion that was written in 2024 that originally said the Tennessee National Guard “was a militia for the purposes of the constitution.” He said the opinion was revised to say that guard was a militia “only for purposes of federal law.”
“Elected officials and government officials do not get to pick and choose which parts of the constitution to read, which ones to apply, and which ones to follow,” Yarbro said. “It’s a pretty basic principle of what it means to be American.’
Yarbro said a letter was delivered to Attorney General Jonathan Skrmetti noting “revisions” in the opinion, and requesting “legal justification” for these decisions. He also asked for a list of other opinions “that have been withdrawn or modified by Skrmetti’s office.”
A statement from Skrmetti said that Attorney General responses “are not legally binding.
“The opinion was withdrawn on April 19, 2024, because it did not accurately reflect the state of the law. The office withdraws opinions when it determines the state of the law has changed or the analysis was incorrect.
“The incorrect reasoning of the withdrawn opinion that these legislators want to rely on would ban the National Guard from helping with disaster relief efforts in Tennessee.
“If the folks at the press conference are insinuating my office withdrew the opinion six months before the election to pave the way for Trump policies a year and a half later, they have bigger problems than this legal question. If I could see the future like that, I’d be neck deep in Bitcoin and Pokémon cards.”