In his increasingly desperate bid to hang on to the White House, President Trump is reportedly contemplating invoking martial law to force the invalidation of the results of the election in four swing states, apparently inspired by remarks of the former and recently-pardoned National Security Advisor Michael Flynn. While we deem the chances that Trump will actually follow through with the attempt to spark a military coup between now and January 20th extremely low, Acting Attorney General Jeffrey Rosen should be prepared for such a contingency and play out the legal and enforcement implications in advance. Shocking and unprecedented though it would be, Rosen should be ready to go so far as to order federal law enforcement officers to arrest anyone, including if necessary the president, who has conspired to carry out this illegal plan. Short of those steps, the Justice and Defense Departments should be ready to issue internal and public statements that the law clearly prohibits any such actions.
Senior U.S. Army officials felt the apparent need to issue a joint statement last week saying “there is no role for the U.S. military in determining the outcome of an American election.” This shows the dangerous place our country has reached due, in no small part, to extreme and erroneous views of the president’s Article II powers and immunity from criminal law.
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Following Flynn’s public remarks, the idea of a military coup took shape in earnest last Friday, when the president met with Flynn and Flynn’s (and the Trump campaign’s) former lawyer, Sidney Powell, as well as with executive branch staff, to discuss various methods for overturning the results of the election, including the use of martial law. Trump reportedly asked Flynn to spell out his proposal during the meeting.
The legal vehicle the president would likely hope to use is the Insurrection Act, an 1807 law that allows the president to federalize the national guard in order to “suppress” an insurrection.
Last used in 1992 in response to unrest sparked by the Rodney King verdict, the Insurrection Act has never been invoked to overturn an election or to intervene in peaceful political events of any kind. Indeed, it has never been used in any context other than suppressing civil unrest. It was invoked in 1968 in response to the unrest following the death of Martin Luther King, and in 1957, 1962 and 1963 to help enforce civil rights laws in the face of local opposition to federal court orders requiring school integration. Ulysses S. Grant used it in 1871 to suppress the Ku Klux Klan, and it was used during the Civil War to impose a blockage of the ports of seven southern states. Only in rare instances has it been used against the wishes, and without the consent of, state and local officials. It has never been used to deny federal and state rights, such as the right to vote.
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Any attempt to deploy the military to overturn the results of the 2020 election would violate multiple federal laws. First, it would violate the Posse Comitatus Act, an 1878 law codifying the longstanding principle that the military may not engage in domestic law enforcement (18 U.S. Code 1385). The Insurrection Act is understood to provide a rare exception to posse comitatus, based on a civil emergency that requires the immediate restoration of law and order, conditions that would simply not be satisfied here, even if Trump’s allegations of election fraud were true. There are also specific laws designed to criminalize election interference by the military. Members of the Armed Forces, for example, who assist with the overthrow of a lawful election can be held criminally liable under 18 U.S. Code 593 and sentenced for up to five years imprisonment.
More significantly, a series of criminal provisions in federal law prohibits attempts to overthrow the lawful authority of federal and state government. These laws could subject Donald Trump, Michael Flynn, or others involved in such a plan to criminal charges much in the way that the 1861 firing on Fort Sumter by confederate forces after the election of Abraham Lincoln was criminal. 18 U.S. Code 2383 criminalizes “rebellion or insurrection against the authority of the United States or the laws thereof.” 18 U.S. Code 2384 criminalizes “Seditious Conspiracy,” which prohibits two or more individuals by force “to prevent, hinder, or delay the execution of any law of the United States,” and 18 U.S. Code 2385 makes it a crime to “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State … by force or violence,” with additional penalties for conspiring to do the same with another person. The participation of multiple individuals in such a plan would constitute a conspiracy under federal law, thus enhancing the penalties for any of the above acts performed in conjunction with others, with the exception of the crime of “seditious conspiracy,” which is already a collective offense. Several of these provisions not only provide for jail time but also preclude employment in the federal government following conviction, which among other things would prevent Trump from running for president again in 2024 and anyone who assisted him from holding any federal office.
But do “seditious conspiracy” and similar offenses apply to a sitting president? There is no telling what President Trump’s informal advisors apparently suggested. One can imagine that they would try to claim that sedition is not a crime if it is ordered by the president under his extensive Article II powers. And since he is Commander-in-Chief of the Armed Forces, the military would be bound to obey.
This is wrong on all counts and, indeed, White House Counsel Pat A. Cipollone reportedly tried to push back by telling the president that proposals raised during the Friday meeting were not within his constitutional authority. But this is not simply about constitutional authority. It also involves military and criminal law.
First, all well-trained military personnel understand that the duty to follow orders is limited to legal orders. Under Article 90 of the Uniform Code of Military Justice (UCMJ), the duty of obedience to the chain of command does not apply to orders the recipient knows to be illegal Thus even if Donald Trump were to issue an illegal order to overturn a lawful election, that order could not be obeyed by the officers and enlisted men and women, whose primary duty is to defend and uphold the Constitution. Second, active duty as well as retired military officers would be subject to the UCMJ, and as such they could be held criminally liable for “mutiny” or “sedition” under 10 U.S. Code 894, a provision that is broader than its civilian counterpart. This would apply to Michael Flynn, who, as a retired officer, could be charged and subject to court martial under this provision. What is more, civilians could be held liable (under 10 U.S. Code 2) for aiding and abetting Flynn’s violation of the UCMJ.
But second, not even the president would have immunity under Article II from criminal prosecution were he to attempt to overthrow the results of the election. Under Trump v. Vance, decided by the Supreme Court in July of 2020, Trump was unable to assert presidential immunity to repel a criminal subpoena for financial records of the Trump organization sought by Manhattan District Attorney Cyrus Vance. At oral argument in the Second Circuit, the president’s lawyers had presented one of the most extreme interpretations of presidential powers ever offered in a court of law, namely that under his Article II constitutional authority, the president could shoot someone on Fifth Avenue without being either investigated or indicted until after he had left office.
Following the Second Circuit’s rejection of this extreme appeal to immunity, the Supreme Court had no difficulty agreeing that the president would not be immune to criminal process, including investigations and subpoenas. The Court thereby sent the powerful message that no president is above the law. Like ordinary citizens, the president is subject to generally applicable criminal laws, both state and federal. Although the Supreme Court did not address whether a sitting president can be indicted, even the Office of Legal Counsel’s (OLC) opinions that a president should not be indicted while in office accept that he could be indicted and prosecuted immediately following the end of his term. Existing OLC opinions also recognize that a sitting president can be criminally investigated by the Justice Department. Indeed, that is precisely what Robert Mueller did. There are some extreme scenarios that surely would cause even the OLC to rethink its own preference for deferred prosecution; for example, if the president is in the course of carrying out an ongoing violent crime (shooting people on Fifth Avenue) or a military coup, he should be subject to arrest.
Still, an expansive vision of presidential powers under Article II has made dangerous inroads on our constitutional democracy, fueled by a legal fiction known as the theory of the “unitary executive.” This theory was originally a thesis about the president’s power to remove upper level executive branch officials, but it has broadened over the years to justify virtually limitless use of presidential power. As President Trump once put it, “I have an Article II, where I have to the right to do whatever I want as president.”
Law Professor John Yoo and other Justice Department lawyers used unitary executive theory during the Bush Administration to justify torture in the face of federal criminal statutes and international treaties forbidding torture. William Barr, as a private lawyer before he became Trump’s Attorney General, auditioned for the job with a 19-page memo in 2018 arguing that the president is constitutionally incapable of committing the crime of obstruction of justice under Article II if he fires an FBI Director or federal prosecutor specifically in order to impede an ongoing criminal investigation, even one investigating himself. Special Counsel Robert Mueller took the opposite stance in Part II of the Mueller Report, where he provided a roadmap for a possible indictment of President Trump for obstruction of justice in the Russia investigation after he leaves office, though Mueller acknowledged that he was bound by the prevailing DOJ practice forbidding indictment of a sitting president.
In 2020, Trump called upon John Yoo for advice on how he could use his power as president under Article II to skirt Congress and impose his own policies on matters such as DACA, healthcare, tax policy, and criminal justice. The same thinking may have helped devise the convoluted legal excuse that nominally allowed the Attorney General to send federal agents into Portland to protect federal courthouses and monuments against protestors seeking to exercise their right to free speech under the First Amendment. One of us wrote against the invocation of the Insurrection Act then; still more does the idea shock and trouble us now. Clearly it is time for the Justice Department to rethink its policy prohibiting indictment of a sitting president. An overly expansive interpretation of presidential powers under Article II has misled one administration after another into thinking that the president is above the law, and our democracy has increasingly paid the price. Having reached the point that a sitting president is seriously contemplating using the military to overturn an election, it should be clear that we need to rethink our approach to presidential power. The Court’s decision in Trump v. Vance, which tells us that no president is above the law, shows us where to begin.