In the late 2020 news, it was said that then still-president Trump could have invoked martial law in order to help him overturn the 2020 election (CNN, Business Insider)
Flynn had suggested earlier this week that Trump could invoke martial law as part of his efforts to overturn the election that he lost to President-elect Joe Biden
In what way would that have helped him?
Mobilizing the army to change the outcome of an election is an established practice that has a long history across the world. It is called a coup.
During a coup it is common practice to "modify" the courts, which subsequently rule that the actions were indeed legal.
At this point there is a 0% chance of success of such a coup, and about a 0% chance of it being attempted. Because the accusations of election fraud are transparent lies*, and some of the elections in question were run by Republicans, attempting to overthrow the election with a military coup would likely spilt the Republicans into multiple factions, at which point they would be far too weak to succeed at taking and maintaining power by force. And to revisit the question of legality: Coups that fail are ruled illegal by courts.
Instead, the threat of a military coup, worded in a way that still allows for plausible deniability, serves to further polarize the country, which is in line with many similar such actions throughout Trump's term in office.
*The accusations of widespread voter fraud to steal the election from Trump and give it to Biden have been established as false by a multitude of fact checkers, courts and the government of the United States of America. If you know that this is incorrect, don't write a comment just claiming that evidence exists. Please provide a link to the actual evidence of widespread voter fraud to steal the election. Then send it to the White House because they are desperately looking for evidence to support their claims. Related: Russel's teapot.
This was addressed in an open letter to General Milley, Secretary of the Joints Chiefs of Staff published on August 20th in Defense One by John Nagl, a retired army officer and a veteran of both Iraq wars and by Paul Yingling, a retired US army lieutenant colonel who served three army tours in Iraq, another in Bosnia and also served in Desert Storm.
They wrote:
As Chairman of the Joint Chiefs of Staff, you are well aware of your duties in ordinary times: to serve as principal military advisor to the President of the United States, and to transmit the lawful orders of the President and the Secretary of Defense to combatant commanders. In ordinary times, these duties are entirely consistent with your oath, "to support and defend the Constitution of the United States against all enemies, foreign and domestic ..."
We do not live in ordinary times. The President of the United States is actively subverting our electoral system, threatening to remain in office in defiance of our Constitution. In a few months time, you may have to choose between defying a lawless President or betraying your Constitutional Oath. We write to you in assist you in thinking clearly about that choice. If Donald Trump refuses to leave office by the end of his constitutional term, the United States military must remove him by force, and you must give that order.
Due to a dangerous confluence of circumstances, the once unthinkable scenario of authoritarian rule in the United States is now a very real possibility. First, as Mr. Trump faces near certain electoral defeat, he is vigorously undermining public confidence in our elections. Second, Mr. Trump's defeat would result in his facing not merely political ignominy, but also criminal charges. Third, Mr. Trump is assembling a private army capable of thwarting not only the will of the electorate but also the capacities of ordinary law enforcement. When these forces collide on January 20th, 2021, the US military will be the only institution capable of upholding our Constitutional order.
They add
Mr Trump is following the playbook of dictators throughout history. He is building a private army answerable only to him. The Presidents use of militarized Homeland Security agents against domestic political demonstrations constitutes the creation of a paramilitary force unaccountable to the public. The members of this private army, often lacking public insignia or other identification, exist not to enforce the law, but to intimidate the President's political opponents ...
More,
America's political and legal institutions have so atrophied that they are ill-prepared for this moment. Senate Republicans, already reduced to supplicant status, will remain silent and inert, as much to obscure their complicity as to retain their majority ...
And then they expand upon what they first say:
As the senior military officer of the United States, the choice between these two options lies with you. In the constitutional crisis described above, your duty is to give unambiguous orders directing the US military forces to support the constitutional transfer of power. Should you remain silent you will be complicit in a coup d'état.
They then quote the oath of office taken by the Mark Milley on ascending to this office, and end on:
The fate of our Republic may well depend upon your adherence to your oath.
Given this warning by two army officers, veterans of both Iraq wars, for Trump to issue a call for martial law now, after a defeat in the elections and which he refused to concede and which the Republicans contested in the courts (with over fifty cases thrown out) would be a further step in transforming the USA from a democracy to dictatorship. As they advise this requires resistance at all levels.
Those of us who have lived our lives in (more or less) stable democratic regimes have a difficult time wrapping our heads around this kind of maneuver, so allow me to make a couple of difficult points clear:
Martial law is by definition the application of state violence to suppress opposition
A regime imposes martial law when it is incapable of achieving some domestic goal through normal political or legal channels. Martial law uses physical force to smother the legal rights, privileges, and freedoms of the citizenry as a whole so that the regime can achieve some goal it cannot otherwise achieve. In democratic nations the idea of martial law is sometimes floated — always by far-Right voices — when there is a potential for widespread violence (riots, putative insurrections, authority-vacuums caused by natural disasters, etc), but it is rarely implemented as policy.
Martial law automatically creates a crisis of legitimacy, because it is expressly and invariably used to suppress opposition to the standing regime. Even dictatorial and autocratic regimes use it sparingly because they want (as much as possible) to give an outward appearance of legitimate governance.
Martial law is by definition extra-legal
As noted above, martial law is only invoked when normal political or legal channels fail to produce the outcome the regime desires. As a result, it has no a priori 'legal' standing, only ex post facto standing. In other words:
Martial law is one of those gambits where the victor (ostensibly) gets to write history. It isn't meant to be moral or legitimate as an act; it's more in line with the old saw that it's "easier to ask for forgiveness than permission."
Martial law, by definition, is anti-democratic
A democratic regime invests power in written documents (constitutions, laws) and established institutions (practices like voting, institutions like congresses, habits like the smooth transfer of power, etc). It does this explicitly to prevent power from being invested in individuals or groups, because investing power in individuals or groups leads toward autocracy. Martial law undercuts written law and established institutions to serve the interests of a single individual or group. The moment martial law is put on the table we should stop thinking about fine democratic niceties like "is it legal?", "is it legitimate?", or "is it a successful strategy?". We have left the realm of democratic governance, and entered a world where political issues are decided by fiat and raw force. The rules of democracy no longer apply. The only question we have left to ask is whether we will allow the regime to get away with it.
In short no.
The "theory" of martial law is that the President is charged with upholding the constitution and executing the legislation passed by Congress in accordance with the Constitution. Normally this is done by actions such as executive orders, or by directing various agencies of the federal government to spend their money in a particular way.
In extreme times, the President can use the federal army as a tool to uphold the Constitution and execute legislation passed by Congress. So, for example, if there were a major Earthquake in L.A. it might be impossible for the regular emergency services to provide 911 services. The President could order the Army take a role in ensuring that the citizens and emergency workers were safe. This is all legal and proper providing there is Congressional support (ie an act of Congress explicitly authorising it).
The important legislation is the Posse Comitatus act, that prevents peacetime domestic deployment of the army without Congressional approval.
So I suppose IF Congress approved, the president could order the Army to detain those Governors and others who have "faked" the election and bring them for federal trial, since the diverse States don't seem able to do this themselves... But honestly this is too far fetched even for fiction.
There is no way that the Congress is going to vote for a coup.
So such an order would be illegal.
In no way could Trump try to use the military to alter the outcome of the election.
Our military swears allegiance, not to the president, but to the US Constitution. There is no provision in the US constitution for a president to alter the outcome of an election.
Every serving soldier knows this. They are reminded of this on a regular basis.
Any such attempt would be rejected as an illegal order.
(Since my comment was deleted, presumably because it was an answer): in practical terms, given the current (respect for democracy) culture in the US army, it seems highly implausible such a maneuver could succeed, even if it were legal somehow (which it probably isn't, but I don't want to delve on the legality of something implausible):
Secretary of the Army Ryan McCarthy and Army Chief of Staff Gen. James McConville didn't single out Flynn directly, but did decry his actions with a Friday statement. "There is no role for the U.S. military in determining the outcome of an American election," the leaders affirmed.
Gen. Mark Milley, chairman of the Joint Chiefs of Staff, made a similar point last week. "We have established a very long 240-year tradition of an apolitical military that does not get involved in domestic politics," Milley told NPR amid right-wing calls for the military to overturn the election.
I mean, sure, Flynn is himself former army brass, but it seems unlikely there are "enough Flynns" in the army, or that enough could be found on short notice to support such an approach that is by most accounts a coup.
N.B. to give the veneer of legality, apparently:
Trump, in any case, would need congressional approval to invoke martial law, according to a study earlier this year by the Brennan Center for Justice.
I couldn't find that exact study, but a CRS report on the Posse Comitatus Act notes that while the act itself has quite a few vague areas (e.g. it doesn't explicitly apply to the Marine Corps or to the National Guard) and there's not much jurisprudence on it, these issues have been supplemented by numerous DoD internal regulations, so the unreserved participation of the latter seems necessary for such actions to succeed.
The first step is to declare the election fraudulent. The second step is to demand a "re-do". What next comes next depends on just how the election is re-done.
The Republican party can be classified as being in four main camps. There's the ones who are actively upholding the rule of law and opposing Trump. There are the ones who are not saying anything, and perhaps participating in Trump's agenda somewhat, out of fear of the consequences for standing up to him. There are those who have been bought into Trump's propaganda and honestly believe that the election was stolen. And there are those who are fully aware this is a scam, but are willingly going along with it because they see it as an opportunity to advance their interests.
How a "re-do" of the election proceeds depends on how much influence each of these groups have on it. The fourth group will be pushing voter suppression to the extreme, and if that's not enough to swing the election their way, they quite possibly will simply engage in fraud. The third group will largely go along with anything the fourth group can frame as fighting fraud. Much of voter suppression will fall in that category, and even creating fraud by Republicans can in many cases be twisted into fighting fraud by Democrats. The third group will be faced with a lot of cognitive dissonance, which in many cases they will have to resolve by either moving to the first or fourth group. If the fourth group can sideline the first group, cow the second group into going along, and manipulate the third group into serving their agenda, they may be able get the election to give the "correct" result, allowing Trump a patina of legitimacy.
On the other hand, if the third group are the ones running the show, they may buy into the fourth group's propaganda so much that they honestly believe that if they simply run the election in a completely "fair" manner, then Trump will win, and be surprised to find that Trump still loses. If the first group can take control of the re-do and assure the second group that they can act with integrity without too much risk, then they may be able to keep the election result from changing.
Where martial law comes in is that it allows Trump to sidestep what he calls the "deep state" and other people call "basic democratic institutions" and replace it with a top-down structure largely dictated by him. The top would be largely the fourth group, the middle the third group, and the bottom the second group. The first group would be declared incompetent/corrupt/treasonous and removed from their positions. If it comes to that, whether it succeeds depends on how much Trump can establish that hierarchy. Trump has exhibited incompetence in a wide range of fields, and there's little reason to think that pulling off a coup would be an exception.
There's also the question of how far non-Republicans and the first group will go to oppose this. They seem to have rolled over on the grabbing people off the street in Portland. The courts would almost certainly declare this illegal, but if Trump sends federal officers to carry out his orders, injunctions won't do anything unless anyone stands up to enforce them.
Also, it's not clear how much of Trump's campaign against the election results is actually directed towards overturning it, and how much of it is motivated by other concerns, such as radicalizing the base for Georgia's run-off, scamming more money from the third group (Trump has raised millions of dollars off of this), or just feeding Trump's ego.
As for legality, it would violate standard legal principles, but it is generally accepted that legal principles can be ignored in "special" cases. The Japanese internment camps, the draft, and "ceremonial deism" are all examples of the letter of the law has been ignored in favor of the alleged "spirit". And as Peter points out, if Trump succeeds in destroying the current democratic infrastructure, he can have it retroactively declared legal.
The power of any and all law is underpinned by and derived from the force with which it is enforced - predominantly the police and prison system.
Martial law means direct military control. Since the army is better equipped than the police, it usurps the capacity of the police to enforce the law, thereby usurping authority of the courts to enforce law. Once in place, this gives power to whomever controls the army to issue whatever edicts they may dictate, knowing all such commands may be enforced by the full power of the army. So is it legal? Well, one might say once it happens the old law is no longer the law - it's the new law now, and by that law, yes, it's 100% legal.
But this only holds, provided the military have the appetite to use (probably lethal) force to wrest power away from the police. This appetite, requires both a chain of command, and troops on the ground, willing to execute the dictator's commands. The chain of command (generals etc.) may choose not to transmit the orders down to troops, and troops may elect not to execute same orders by shooting, beating, capturing & imprisoning protestors, police, judges who stand up against them. Their reluctance may arise out of allegiance to the prior regime (e.g. democracy) or out of fear of the dictatorship losing power, leading to their trial for treason.
This reluctance of the military to execute their orders played out on June 5th 1989 in Tianenmen square, where tank man famously stopped a column of tanks. But the Chinese leadership made the astute move of drafting in Chinese troops from remote rural regions knowing they were from different ethnic groups to most in Beijing and would be less sympathetic to the protestors' cause. SO while there was some dissent from soldiers, sufficiently many had no quarms shooting protestors that the pro-democracy protests were put down.
If we now ask whether a president of the USA would be likely to succeed in this endeavour: This will depend upon
a) the allegiances of the troops and their commanders when called upon to do so, and
b) the will of the electorate to sustain deaths in resisting it.
I don't know enough about the precise allegiances of the US armed forces to comment on this, but it's plain that the electorate is sufficiently divided that, especially with so many guns in the country, there would be civil war. On this basis, it seems reasonable to speculate that the vast majority of army commanders would not want to be responsible for triggering civil war and would therefore put their heads together and find a way to support the status quo, i.e. of the courts and police remaining in control of the law.
There are several states where he alleges election fraud, as well as illegal election processes (court ordered election changes that violate election laws of those states).
Martial law could in theory be used to force revotes in those states, that would then be considered legal.
But at the moment it is really just political theater, no different from the security theater that is the TSA or the political theater that was the objection to voting for/against a Supreme Court nominee before an election, it’s just something done to make a political point.
But what makes it (suggesting that he will declare martial law) really terrible in my opinion is that it’s too late for martial law to be useful either in itself (martial law and a revote in the states that violated state laws, would have have to have happened immediately, preferably before the voting was finished to be worthwhile) or as political capital for some goal. Unless that goal is to get Congress to demonstrate their power, it’s simply too late for it to have any effect, as he will be out of office. Which means that suggesting he is going to do so fear mongering, and not mere political vilification.
