It appears that the President was listening because on the day after Flynn’s manifesto and the related WTPC ad were released, his 46 minute Facebook rant included a call for a re-vote. While Flynn’s manifesto is ludicrous on its face because it amounts to incitement of a coup against the Constitution, the President has demonstrated in the weeks since he lost the election that he is becoming increasingly unhinged such that it is not inconceivable that he could take Flynn’s call-out seriously.

That begs the question of what would happen if President Trump were to actually adopt Flynn’s position and declare a suspension of the Constitution and attempt to impose martial law. Because of the President’s fragile mental state and desperation to overturn his loss of the election, this question needs to be considered so that we know what the range of outcomes would be and what to expect.

If the President were to decide to act on Flynn’s proposal, he would first issue an order to declare martial law, to suspend the Constitution, to declare the recent election void as to the office of President, and to order a new election. He would then have to give orders to the military leadership to implement martial law and to undertake organization and administration of the election. By decapitating the civilian leadership of the Pentagon in early November, including Secretary of Defense Esper and the leadership layer immediately below him, and replacing them with totally incompetent, but personally loyal, operatives, Trump has assured that he will get no pushback against such orders from the civilian level.

The same cannot be said of the military leadership, both at the Joint Chiefs level and at the level of operational commands. Military leaders and the Judge Advocate officers who support them tend to take their oath of appointment to “support and defend the Constitution” very seriously. The Chairman of the Joint Chiefs, General Mark Milley, is the leading case in point. In August of this year, in responding to questions from members of the House Armed Services Committee about how he would respond to an order from the President to use the military for political gain, he said forcefully, “I will not follow an unlawful order.”

More specifically with respect to the possibility of an order to have the military intervene in the electoral process, he said, “I foresee no role for the U.S. armed forces in this process.” At the levels of command below the Joint Chiefs, a commander who receives an order that is of questionable legality will automatically consult with his or her Judge Advocates, who will assess the legality of the order. If it is determined that the order is unlawful, the commander is obligated not to obey it. The question of whether President Trump’s order to implement martial law will be implemented by the military, then, comes down to whether it is determined by the military leadership, with the support of their Judge Advocates, to be lawful.

There are two possible ways in which the President could order the military to implement martial law. One might be called “martial law lite” because it is not true martial law, but rather the use of the armed forces as a “posse comitatus,” i.e. as a law enforcement body to carry out the President’s directives. The other is actual martial law, whereby civil authority is suspended and military authority is imposed in its place, i.e. the military takes control of all law enforcement and judiciary functions pursuant to a suspension of the Constitution and existing laws. The military leadership and their Judge Advocates would have to determine the lawfulness of whichever of these two forms they were ordered to implement, as follows:

– Posse comitatus – Federal law, specifically the Posse Comitatus Act, 18 U.S. Code Sec. 1385, prohibits the use of the armed forces as a posse comitatus, i.e. in civilian law enforcement, except as “expressly authorized by the Constitution or Act of Congress. . . .” There is nothing in the Constitution that authorizes use of the armed forces as a posse comitatus. The only statutory provision to which the President could potentially point for such authority is the Insurrection Act, 10 U.S. Code Sec. 252, which is supplemented by the provisions in 10 U.S. Code Sections 332 through 334. Sections 252 and 332 both provide that if the President finds “that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings,” he may call the National Guard of the state to active duty or use the active duty armed forces “to enforce those laws or to suppress the rebellion.” [Emphasis added.] The scope of the Insurrection Act is, then, limited to specific cases of unlawful actions or rebellion against federal authority. Further, it may be invoked only against actions within a state, not across the entirety of the United States. It is clear, then, that a Presidential order to suspend the Constitution for the purpose of holding a new election under military control, purportedly under the authority of the Insurrection Act, would not be lawful. First, there are no ongoing actions that could reasonably be deemed to be an “unlawful obstructions, combinations, or assemblages, or rebellion. . . .” Second, there is no way that conducting a new election could be framed as a response to such actions, even if they existed. And third, such an order would apply to the entire country, not a state. Therefore, an order to the military based on the Insurrection Act would on its face be unlawful, and therefore would not be obeyed by the military.

– Martial law – The imposition of full-blown martial law whereby all of the existing law enforcement and judicial functions are displaced by military law and structures pursuant to suspension of the Constitution is nowhere permitted by the Constitution, so would be unlawful on its face. The only provision for suspension of any legal protection in the Constitution is the provision in Article I, Section 9, paragraph 2, which provides that, “. . . Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Note that this limited provision is in Article I, which governs the Legislative branch, so it is not available to the Executive branch. Flynn’s manifesto and the related WTPC ad cite President Lincoln’s invocation of martial law, which required the suspension of Habaus Corpus, as precedent supporting a President’s power to suspend the Constitution in its entirety and to impose martial law. Aside from the fact that Lincoln’s suspension of Habeas Corpus would in no way serve as precedent for wholesale suspension of the entire Constitution, as Flynn and WTPC suggest, Flynn and WTPC totally overlook the fact that the Supreme Court held Lincoln’s action to be unconstitutional in the case of ex parte Milligan (71 US 2 [1866]). The Court in Milligan closely limited the circumstances in which martial law is permissible in saying, “If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority. . . .” The Court went on to say, “Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.” There is no “actual war” going on inside the United States, nor are the civilian courts “actually closed.” It could not be clearer that imposition of martial law under a suspension of the Constitution is absolutely impermissible, and any order given by the President in such case is on its face unlawful. Such an order would not, therefore, be obeyed by the military.

The conclusion is that the military, from GEN Milley down through the operational commands, would not obey an order to enforce martial law and to administer a new election. The question remains as to what would follow the military’s refusal. The simplest answer is that nothing would have to happen – civil authority would go on until the problem is resolved on January 20 when Donald Trump leaves the White House, either voluntarily or kicking and screaming at the hands of the Secret Service under the direction of President Biden. But it is likely that there would also be litigation that could reach the Supreme Court on an expedited basis, which should change nothing – not even the Republican-packed Court could find a way to make President Trump’s action lawful.

There is a question whether such an action by the President, as well as the contributing actions of Flynn, WTPC and others who advocated for the action, could be charged under 18 U.S. Code Sec. 2385, which makes it a crime to advocate overthrow of the government. But that can be addressed at a later time, if it becomes ripe.

In closing, I will add a comment that is personal to me as a retired military officer. Michael Flynn is a retired U.S. Army Lieutenant General. When he was commissioned many years ago, he swore to “support and defend the Constitution of the United States against all enemies, foreign and domestic; [and to] bear true faith and allegiance to the same.” That oath does not lapse. His call to suspend that Constitution, to forcibly implement martial law, and to conduct an election in violation of the Constitution, stains the uniform which all of us who are or were members of the armed forces wore. Even if he never faces legal consequences for his blatant violation of his sacred oath, he will forever bear the shame of it.

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Bonus Video added by Informed Comment:

The Young Turks: “Trump Urged To Declare Martial Law”

The children who were forcibly separated from their parents were held in literal cages, forced to sleep on concrete floors with only foil blankets for comfort. They had no social or emotional support, inflicting grave mental trauma on them. Hundreds of them have now been held in such conditions for over three years, with no prospect of being reunited with their families. Such conditions appear to fall within the provisions of all four of the items listed below. That is, the children were deprived of their physical liberty without due process per item (e), suffered intentional mental (and perhaps physical) suffering per item (f), were intentionally deprived of their fundamental rights (i.e. to be cared for by their parents) by reason of their group identity (i.e. Latin immigrants), and endured great suffering and serious injury to their mental health per item (k).

The women who were forcibly sterilized or forced to undergo invasive and unnecessary internal exams clearly were subject to torture per item (f), persecution per item (h) and inhumane acts that caused them great suffering due to both serious physical injury to their bodies and damage to their mental and physical health per item (k). Depending on the length and conditions of their detention, they may also have been deprived of their physical liberty per item (f) below.

Even though the United States is not a state party to the treaty, there is a unique connection of the Rome Statute’s standards to American conduct. The Rome Statute’s Article 7, which is the provision that addresses crimes against humanity, is directly descended from Article 6 of the Nuremberg Charter, which was the framework that governed the Nuremberg Tribunal. The principal architect of the Charter was Supreme Court Justice Robert H. Jackson, who was at the time acting in his role as the lead American prosecutor for the Tribunal. In essence, then, the law governing crimes against humanity comes from an American source of highest repute.

The Rome Statute’s Article 7, paragraph 1, says that a “’crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population. . . ,” which paragraph 1 elaborates as meaning “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy. . . .” The relevant listed acts under paragraph 1 include items:

• (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
• (f) Torture (which paragraph 2 elaborates as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused”);
• (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law (which paragraph 2 elaborates as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”); and
• (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

While the refusal of the United States to become a state party to the treaty adopting the Rome Statute may give President Trump and his minions impunity for these crimes against humanity, they are no less guilty. That these crimes were committed in the name of the United States government taints us Americans with collective shame and dishonors the legacy of Justice Jackson, who was America’s greatest moral authority on international humanitarian law. Our country should be much better than that, and we must ensure that the perpetrators of these crimes are removed from power.

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Bonus Video added by Informed Comment:

CNBC: “Lawyers can’t find parents of 545 migrant children separated by the Trump administration”

First is his attack on the Postal Service (USPS). He withheld CARES Act funds for USPS losses caused by the pandemic, leaving it short of funds to operate. He also appointed as Postmaster General an unqualified campaign donor with an 8-figure investment in private USPS competitors. Louis DeJoy set about destroying the USPS by instituting rules and processes to slow delivery of mail, by firing or pushing aside top professional managers, and most recently by removing mail sorting machines from processing centers without explanation, which immediately cause massive backups. These measures have greatly diminished the capacity of the USPS to deliver mail in a timely manner.

There are two reasons for Trump’s assault on the USPS. First, he has long wanted to privatize its functions. More importantly, he purveys the lie that absentee voting does not work, setting up an argument for himself in case he loses the election due to late-counted, but valid, absentee votes. By damaging the USPS’ capacity to timely deliver ballots to voters and return them to polling centers, he will increase chaos and delays to cast doubt on his loss of the election, particularly if lost by votes counted after election day. This creates a risk that he will cling to office by invalidating ballots or by unsubstantiated claims of voter fraud.

There is time to prevent this undemocratic outcome, but only if Congress acts. This includes Republicans in Congress who care more about the Constitution than staying in the good graces of a wannabe authoritarian leader. Because the Barr DOJ will not pursue violations of law by the administration, it is left to Congress to act on DeJoy’s slow-downs of mail service and gutting of leadership of the USPS. Not only are the slowdowns and destruction of leadership contrary to his remit to manage the USPS properly, but they violate federal law, specifically 18 USC Sec. 208(a), which makes it a crime for DeJoy to act in his government capacity to benefit his own financial interest, i.e. his investments in USPS competitors. His degradation of USPS’ performance gives competitive advantage to those entities, so works to his personal financial advantage, which is prohibited by federal law. Congress should act expeditiously to remove DeJoy from office pursuant to Article II, Section 4, of the Constitution.

The second assault is upon the census mandated by Article I, Section 2, clause 3, of the Constitution. It is critical to accurately count all people. The most important reasons are that (1) apportionment of House seats and presidential electors among the states, and (2) disbursement of federal benefits among the states, are determined by the census.

After the disruptive effects of the pandemic became clear, the Census Bureau extended the deadline to October 31 to ensure an accurate count. Then, on August 3, the Trump administration announced that the deadline would be moved up to September 30. This came when the 40% of the population who are most difficult to count had not yet been contacted. The consequence will be an undercount. The Constitution mandates the count of all people, so Trump’s action to cut the census short is contrary to Constitutional intent. Because time is of the essence, and the interests at stake (apportionment and state benefits) belong to the states, one or more states should bring an original action before the Supreme Court as permitted by Article III, Section 2, of the Constitution.

Action against assaults on the USPS and undercutting of the census must be taken without delay. Nothing less than the survival of our Constitutional government is at stake.

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Bonus Video added by Informed Comment:

Trump Weaponizes Postal Service To Hurt Americans Voting By Mail | Rachel Maddow | MSNBC