What Is Martial Law and How Could Trump Declare It
If someone has declared martial law, they’re essentially saying that they are the law.
Two days ago, on December 18, Donald Trump openly talked about imposing martial law in a White House meeting that, reportedly, left some his aides befuddled.
What we’re all thinking is summarised in the title of this piece by the Atlantic: Trump is losing his mind. The problem is that he is still in charge for another month, and in the meantime, he can do a lot of damage. Donald lame-duck Trump isn’t funny anymore, he’s unhinged, and he’s becoming more dangerous than he’s ever been.
For weeks now, his supporters have been calling for “marshal law” to be declared. That they would so strongly desire something they can’t even spell, and properly know nothing about, tells us a lot about them.
The main consequence of martial law is the suspension of civil liberties.
Now that Trump is seriously considering this course of action too, we need to look at how it would play out. What does he have to do to declare martial law, and what would the consequences be?
To begin with, martial law isn’t described in the Constitution. Declaring it is a prerogative, on a Federal level, of the President and Congress, but there isn’t much more to go with. Its specifics aren’t outlined anywhere. Quoting a Syracuse Law professor, “If someone has declared martial law, they’re essentially saying that they are the law.”
Martial law is intended to replace failed civilian institutions. In dire moments, when the very fabric of civil society is collapsing, when civilian jurisdictions cannot administer justice, martial law can be declared to provide the country with a structure and ensure its continuity.
Trump keeps on suing, and he keeps on losing. Why?
Martial law has been declared at least 68 times in American history. Whether to enforce Federal laws against local resistance (in the South after the Civil Rights Act), to restore peace after riots, or to ensure the safety of cities having been ravaged by natural disasters, the applications of martial law are broad but have always been geographically limited. Never has a state of Federal martial law been declared.
The main consequence of martial law is the suspension of civil liberties. Under such a regime, “the right to be free from unreasonable searches and seizures, freedom of associations, and freedom of movement” can all be suspended. Most importantly, the writ of habeas corpus can be suspended too. This means that there would be no more legal recourse against wrongful imprisonment. Whoever declares martial law is free to arrest and detain anybody for any reason.
Martial law has some limitations. The Posse Comitatus Act prevents federal troops from enforcing domestic law. A major exception to note is that National Guard units are exempt from the Posse Comitatus Act because they take their orders from the state governors.
The Insurrection Act, however, provides for a loophole that allows the use of troops for federal law enforcement in cases when “rebellion against the authority of the U.S. makes it impracticable to enforce the laws of the U.S. by the ordinary course of judicial proceedings.”
The Insurrection Act isn’t martial law. While they appear similar, they are two very different mechanisms. The Insurrection Act is designed to allow military enforcement of civilian laws and jurisdiction, not to replace them entirely.
Martial law operates in a very grey area. To quote the Syracuse Law professor again, “One of the problems, of course, is that there’s nothing to prevent the president or a military commander from declaring martial law. They can do it. It’s not sanctioned by law.”
A few people are key to prevent martial law. Chief among them is the Defense Secretary. Until recently, this was Mark Esper, who was quoted in a memo to the troops as saying:
As citizens, we exercise our right to vote and participate in government. However, as public servants who have taken an oath to defend these principles, we uphold DoD’s longstanding tradition of remaining apolitical as we carry out our official responsibilities.
We don’t swear an oath of allegiance to an individual, a king, a queen, a president or anything else. We don’t swear an oath of allegiance to a country, for that matter. We don’t swear an oath of allegiance to a flag, a tribe, a religion or any of that. We swear an oath to an idea, or a set of ideas and values, that are embedded in our Constitution.
Reading this, you might think that Donald Trump talking about martial law is nothing more than posturing to appeal to his supporter base. There are a few scenarios, however, where he could end up justifying such a declaration. Here they are.
Scenario 1: Pence invalidates the Electoral College votes leading to protests and potential riots. It falls on the President of the Senate to receive the EC votes and present them to Congress. This will happen on January 6, 2021. As I have outlined in another article, Pence would be in a position to “ascertain the validity of the Electoral College votes he had received, even though this is not his prerogative. The issue might then be settled in the Supreme Court.”
Should Pence decide to go against the Electors’ wish and invalidate their votes, we can expect riots to erupt around the country. Trump has been claiming his victory against all evidence since Election Day. In his logic, it would only be natural to quell an insurrection against a legally elected official. He might have trouble doing it on a federal level, but a loyal governor could do it in their state, starting a domino effect across the nation.
Scenario 2: Trump claims his continuous legal losses are proof that civilian jurisdiction cannot administer justice properly. He keeps on suing, and he keeps on losing. Why? Beyond the obvious grift, continually asking his supporters for more donations, he might be motivated by a more nefarious purpose. He could use his losses as proof that the judicial system as a whole is failing because it didn’t address the “largest election fraud in history.”
Scenario 3: Trump’s supporters act violently, sparking street fights. After the “Million MAGA March” (talk about a name…) where multiple people were stabbed, it isn’t far-fetched to imagine a situation where a Trump demonstration degenerates into deadly violence. Trump himself told his Proud Boys supporters to “stand back and stand by.”
Trump would use the civil unrest that is certain to follow as a basis for military intervention on US soil, a step that could easily lead to martial law should any institutional opposition arise. Once again, he would claim that civilian jurisdictions are derelict in their duties and call for their replacement.
These scenarios might sound like science-fiction to you. You might believe I’m crazy. You may think I am but an alarmist, an anti-Trump doomsayer.
But ask yourself: when has Trump ever followed tradition, decorum, and protocol. When has Trump ever abided by the rules? Did you ever imagine a White House lawyer claiming in a press briefing that a dead dictator was orchestrating the largest election fraud in history?
If four years of Trump have taught us anything, it is that the man will go to any length, never to be proven wrong. He cannot stand the idea of admitting he isn’t right. How could he ever admit he lost?