President Trump and key supporters with direct access to the White House have denied a
New York Times report that the President conducted an Oval Office meeting wherein he favorably discussed the idea of invoking martial law to in essence overturn the 2020 presidential election.
The Times reported Saturday that Trump asked during a White House meeting that also involved Flynn’s lawyer Sidney Powell about a recommendation his former aide had made on the conservative Newsmax TV to “rerun” the 2020 election under military supervision.
While it was not clear if Trump endorsed the idea, White House chief of staff Mark Meadows and White House counsel Pat Cipollone sharply pushed back on it, according to the newspaper.
Meadows and Cipollone also reportedly shot down the idea of appointing Powell as a special counsel to investigate claims of widespread voter fraud. Trump’s personal attorney Rudy Giuliani also pushed back against this idea, according to the newspaper.
President Trump in an early morning tweet dismissed the New York Times report that he had entertained the alleged proposal to declare martial law.
“Martial law = Fake News. Just more knowingly bad reporting!” Trump tweeted Sunday.
What’s more, Sidney Powell, who was purportedly at the meeting tweeted, “There was/is no discussion of a #militarycoup by @realDonaldTrump or anyone on his behalf.”
In short, other than the usual anonymous and regularly wrong sources, there’s no evidence that what the New York Times and other outlets actually took place as reported.
The genesis of this latest fake news seems to be an interview Georgia attorney Lin Wood gave to NewsMax TV program "The Count" wherein he discussed how a declaration of martial law could be used to in essence re-run the election.
"If the Supreme Court does not act, I think the president should declare some extent of Martial law, and he should hold off and stay the electoral college.
"Because we cannot have in this country, an election of our leader, where you have massive evidence of fraud and illegality. This country has to have a vote that has integrity. And the electoral college does not need to meet and vote until we have resolved these issues."
The concept has also been explored by LTG Mike Flynn who told NewsMax's "Greg Kelly Reports" about "military capabilities":
"He could immediately on his order seize every single one of these machines around the country on his order. He could also order, within the swing states, if he wanted to, he could take military capabilities and he could place them in those states and basically rerun an election in each of those states. It's not unprecedented.
"I mean, these people are out there talking about martial law like it's something that we've never done. Martial law has been instituted 64 times."
We watched the Mike Flynn interview a couple of times just to make sure we were getting it right and concluded General Flynn was not advocating a declaration of martial law, rather, he was explaining that the capability and precedent exist – both of which are true.
However, a declaration of martial law would require more than a tweet to bring it into effect, as attorney Lin Wood should well know. And since the Civil War courts have been very careful to constrain the President’s power to make such a declaration.
The Supreme Court in Ex parte Milligan, 71 U.S. 2 (1866), [an appeal from a military tribunal death sentence] is instructive on the limits of the military jurisdiction over civil life, here are a few of key points from that case:
Neither the President nor Congress nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus.
The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances.
The Federal authority having been unopposed in the State of Indiana, and the Federal courts open for the trial of offences and the redress of grievances, the usages of war could not, under the Constitution, afford any sanction for the trial there of a citizen in civil life not connected with the military or naval service, by a military tribunal, for any offence whatever.
Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.
Associate Justice David Davis, writing for the Supreme Court majority put it this way:
Those great and good men [the Framers of the Constitution] foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.
Bottom line: As the Supreme Court made clear over 150 years ago, the correct method of addressing the issue of the voting machines and their clearly demonstrated role in producing fraudulent election results is for the Department of Justice to subpoena them and for the FBI or US Marshall Service to seize them and for federal authorities to conduct the necessary computer forensics on the machines.
A declaration of martial law, without a clear finding that a given state is in a state of war, rebellion or civil unrest, would amount to violating the Constitution in order to save it, a course of action no clear-thinking conservative should support.
New York Times story