Gavin Howe
There have been concerns that former US President Donald Trump could declare martial law to steal an election. Trump's impeachment defense counsel, Alan Dershowitz, argued that there is no constitutional bar to a president declaring martial law. However, national security and election law experts have asserted that there is no legal or political precedent for a president to declare martial law and that such actions would face significant legal challenges and political backlash. Trump himself has denied the possibility of declaring martial law, calling it fake news. The idea of invoking the Insurrection Act of 1803 or 1807 to deploy military force and potentially interfere with election processes has also been discussed, but experts emphasize that it does not provide a basis for a president to remain in power after losing an election.
| Characteristics | Values |
|---|---|
| Can Trump declare martial law? | Trump cannot declare martial law, according to national security and election law experts. |
| Can Trump steal the election? | Trump cannot steal the election, according to national security and election law experts. |
| Can Trump seize voting machines? | No, Trump cannot seize voting machines. |
| Can Trump use force to overturn the election results? | No, Trump cannot use force to overturn the election results. |
| Can Trump rerun the election? | No, Trump cannot rerun the election. |
| Can Trump stop members of Congress from certifying election results? | No, Trump cannot stop members of Congress from certifying election results. |
| Can Trump halt the U.S. democratic process? | Trump's threat of disregarding election laws is very real, according to Democratic strategist James Carville. |
| Can Trump invoke the Insurrection Act of 1803/1807? | No, according to Republican strategist Karl Rove. |
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What You'll Learn
- Trump's impeachment counsel argued that there is no constitutional bar to declaring martial law
- Experts say there is no legal or political precedent for martial law
- Trump's supporters suggest he should be able to run again
- Trump's good faith in office is in doubt
- Trump's actions could face legal challenges and political blowback
Trump's impeachment counsel argued that there is no constitutional bar to declaring martial law
Trump's impeachment counsel, Alan Dershowitz, argued that there is no constitutional bar to a president declaring martial law. This argument is based on the Constitution's enumerated war powers, which give both Congress and the president the power to declare martial law. Articles I and II of the Constitution grant each branch some control over the US military forces.
Dershowitz's argument is further supported by the fact that Congress has entrusted the president with a large and poorly bounded set of "emergency powers." Additionally, some, including Trump, assert that the president possesses additional secret powers and 'total authority' by virtue of his inherent executive authority in Article 2 of the Constitution.
However, it is important to note that the Insurrection Act of 1807, which allows the president to deploy the US military or National Guard forces domestically, does not authorize martial law. The act generally permits the military to assist civilian authorities, not take their place.
The potential consequences of declaring martial law are significant. Constitutional rights such as freedom of assembly, speech, and due process may be suspended, and civilian courts could be replaced by military tribunals. This could have a chilling effect on the poll and orderly counting of ballots during an election.
While there were rumors and speculation that Trump would declare martial law on April 20, 2025, there was no credible evidence or reporting to support these claims. The discussion around martial law appeared to be triggered by a signed executive order that directed the Department of Defense and the Department of Homeland Security to submit a report assessing the situation at the southern border and recommending whether to invoke the Insurrection Act.
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Experts say there is no legal or political precedent for martial law
While some of former President Donald Trump's allies have suggested that he could declare martial law, national security and election law experts have asserted that there is no legal or political precedent for such an action.
According to Adav Noti, an election law expert with the Campaign Legal Center, the president invading Congress is not a possibility. Governors have the power to declare martial law in their states, but the president does not. This view is supported by the Brennan Center for Justice, which states that while the president can invoke the Insurrection Act of 1807, there is no precedent for declaring martial law.
The idea of Trump declaring martial law stems from concerns about his authoritarian tendencies and his disregard for election laws. Trump himself has predicted mass-scale voter fraud and foreign interference in elections, and has even suggested that he might not accept the results of an election. His son-in-law has also questioned whether an election would be held on schedule due to a crisis or the pandemic.
Trump has discussed the idea of declaring martial law to rerun an election he lost, and his former national security adviser, Michael T. Flynn, has suggested that the military could force states to rerun elections. However, experts argue that declaring martial law would not change the votes, and that states are not going to redo elections. Even if Congress were unable to certify the results, the political, legal, and military establishments would almost certainly recognize the elected president.
Trump's impeachment defense counsel, Alan Dershowitz, has argued that there is no constitutional bar to a president declaring martial law. However, legal and political commentators have warned that Congress has entrusted the president with a large and poorly bounded set of "emergency powers." The potential for Trump to abuse these powers is a cause for concern, especially given his affinity for authoritarianism and his criticism of the country's laws and Constitution.
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Trump's supporters suggest he should be able to run again
While Donald Trump has not explicitly declared that he will run for president again, he has hinted at the possibility. In his final farewell speech, he told supporters, "We will be back in some form". In August 2020, he told supporters, "We are going to win four more years. And then after that, we'll go for another four years." In May 2024, he again mused about a third term, saying, "I suspect I won't be running again unless you say, 'He's so good we've got to figure something out.'"
Trump supporters suggest that there is a loophole in the constitution, which is untested in court. They argue that the 22nd Amendment only explicitly bans someone from being "elected" to more than two presidential terms and says nothing of "succession". Under this theory, Trump could be the vice-presidential running mate to another candidate in the 2028 election. If they win, the candidate could resign, allowing Trump to take over by succession.
However, constitutional law experts have dismissed this theory. Jeremy Paul, a constitutional law professor at Northeastern University, said there were "no credible legal arguments" for a third term. Despite this, Trump supporters continue to speculate about his potential return to the White House.
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Trump's good faith in office is in doubt
Trump has demonstrated authoritarian tendencies and a disregard for the Constitution, signing several executive orders deemed unconstitutional by Democratic representatives. He has also expressed a willingness to overturn the constitutional limit on presidential terms, with his allies suggesting that he should be able to run again since his two terms were not consecutive. Trump himself has stated that there are "methods" to achieve this. This indicates a concerning willingness to subvert democratic principles and norms.
Trump has also made baseless claims of mass-scale voter fraud and foreign interference in the election, even suggesting that he might not accept the election results. His prediction of voter fraud and his refusal to commit to a peaceful transfer of power have raised concerns about his intentions and the potential for social unrest. Trump's impeachment defense counsel, Alan Dershowitz, has argued that there is no constitutional bar to a president declaring martial law, and Trump himself has asserted that he possesses 'total authority' under Article 2 of the Constitution. This has alarmed legal and political commentators, who warn that Congress has granted the president a large and poorly bounded set of "emergency powers".
Trump's consideration of declaring martial law to "rerun" the election he lost further underscores his questionable faith in office. While experts note that there is no legal or political precedent for such an action, the mere discussion of these options in Oval Office meetings is dangerous and risks normalizing extrajudicial actions. Trump's affinity for authoritarianism and his disregard for democratic norms and the Constitution have justifiably raised concerns about his commitment to acting in good faith and preserving the integrity of the electoral process.
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Trump's actions could face legal challenges and political blowback
Trump's actions, if he were to declare martial law, could face legal challenges and political blowback. The president's oath of office includes a promise to "preserve, protect and defend the Constitution of the United States". However, Trump's good faith in office has been called into question, and there is little confidence that he would take a restrained view of his powers.
Trump's impeachment defense counsel, Alan Dershowitz, has argued that there is no constitutional bar to a president declaring martial law. This assertion has been echoed by a number of legal and political commentators, who point to the broad set of "emergency powers" that Congress has entrusted to the president.
However, any use of presidential or executive emergency power must yield to the fundamental rights of the people, as summarized in the famous phrase from Justice Arthur Goldberg that the Constitution "is not a suicide pact".
In addition, there is no legal or political precedent for a president to declare martial law. Governors have the power to declare martial law in their states, but the president does not. Military leaders have also expressed disinterest in entertaining Trump's ideas, and it is unlikely that declaring martial law would change the election results.
Trump's actions, therefore, could face legal challenges on the basis of overstepping presidential powers and infringing on the fundamental rights of citizens. Politically, such actions could be seen as a dangerous normalization of extrajudicial actions, undermining the democratic process and the rule of law.
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Frequently asked questions
Trump cannot declare martial law, according to various national security and election law experts. Governors have the power to declare martial law in their states, but the president does not.
Declaring martial law would implement and enforce curfews, keeping people in their homes. It could also stop members of Congress from coming to work.
The outlook for a free and fair national election is cloudy, as Trump has predicted mass-scale voter fraud and even suggested that he might not accept the election results. His good faith in office is in doubt, and there is little confidence that he will take a restrained view of his powers.
It is important for elected and appointed officials to act responsibly and in good faith. The principled core of the balanced constitutional architecture must be preserved against extreme assertions by the government or individual citizens.
