ARGUMENT: Criminal sedition Invoking Martial Law to Reverse the 2020 Election Could be Criminal Sedition

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. 

Claire O. Finkelstein, the Algernon Biddle professor of law and professor of philosophy at the University of Pennsylvania, and Richard W. Painter, a law professor at the University of Minnesota Law School – from 2005 to 2007y he was Associate Counsel to the President in the White House Counsel’s office – write in Just Security that

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.

They note that 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.” Finkelstein and Painter write that “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.”

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.

Finkelstein and Painter note that any attempt to deploy the military to overturn the results of the 2020 election would violate multiple federal laws. “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,” they write.

An expansive vision of presidential powers under Article II has made dangerous inroads on our constitutional democracy, Finkelstein and Painter write, 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.”

Finkelstein and Painter conclude:

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.