'Courts would not be afraid to recognize this as reason to strike down acts pretending to martial law authority,' Olson said, just as they haven't been afraid to smack down specious election challenges. The courts are open now, which means any declaration of martial law - including in the six states Flynn targeted - would be illegal. There must be a state of invasion or insurrection such that ground is actually contested, and resort to conventional civil courts and authority must have collapsed.' Absent those conditions, the court said in Milligan, martial law is 'a gross usurpation of power,' and in fact 'can never exist where the courts are open.' It means 'the president cannot simply declare martial law at his whim. This ruling is 'key' to understanding the president's martial law powers today, Olson said. But in Ex parte Milligan(1866), the Supreme Court ruled Lincoln had overstepped his legitimate bounds. That single occasion was President Abraham Lincoln's suspension of habeas corpus rights to suppress dissent during the Civil War. (Most instances on the list were limited to a single city or county and often concerned local labor disputes or rioting.) Under martial law, he summarized, 'civil liberties are suspended,' so 'military commanders can issue orders to civilians' as well as 'arrest and mete out punishment based on tactical needs of war rather than the civilian law on the books.' Martial law has been declared 68 times in the United States, per a recent tally by the Brennan Center for Justice, and only on one occasion has it happened on a national scale. There are really two topics at issue here, Olson told me: martial law and the Insurrection Act of 1807. Moreover, Trump's other advisers in the Friday meeting reportedly opposed the plan in forceful terms, and a statement from Army leadership the same day made clear the military would take no role 'in determining the outcome of an American election.' streets, scooping up voting machines and tossing anyone who objects before a military tribunal. The president reportedly expressed interest in Flynn's idea.Ĭould this actually happen? Though it may simply be normalcy bias at work, I can't really imagine federal troops marching through U.S. And then there's Trump himself, who met with Flynn and other allies in the Oval Office this past Friday. Lin Wood, an attorney who sued to prevent the certification of the Georgia presidential election results, tweeted Saturday that 'atriots are praying' Trump will 'impose martial law in disputed states.' Commenters at TheDonald.win, an online forum for supporters of the president, thrilled at the idea of a 'mostly peaceful martial law declaration' but wondered, absurdly, whether it would accommodate their teenagers' travel home from college or their wives' scheduled c-sections.

Flynn isn't alone in his open enthusiasm for precisely the military junta scenario the president's supporters have spent four years dismissing as a fever dream of Trump Derangement Syndrome.

Did trump declare martial law