Talk of martial law, Insurrection Act draws notice of Jan. 6 committee

The text from Greene (R-Ga.), revealed this week, brought to the fore the chorus of Republicans who were publicly and privately advocating for Trump to try to use the military and defense apparatus of the U.S. government to strong-arm his way past an electoral defeat. Now, discussions involving the Trump White House about using emergency powers have become an important — but little-known — part of the House Jan. 6 committee’s investigation of the 2021 attack on the Capitol.

The Washington Post's investigation of the Jan. 6 insurrection

In subpoenas, document requests and court filings, the panel has demanded information about any Trump administration plans to use presidential emergency powers to invoke martial law or take other steps to overturn the 2020 election.

Interviews with committee members and a review of the panel’s information requests reveals a focus on emergency powers that were being considered by Trump and his allies in several categories: invoking the Insurrection Act, declaring martial law, using presidential powers to justify seizing assets of voting-machine companies, and using the military to require a rerun of the election.

“Trump’s invocation of these emergency powers would have been unprecedented in all of American history,” said J. Michael Luttig, a conservative lawyer and former appeals court judge.

There is no proof Trump ordered any U.S. official to invoke emergency powers, and many of Trump’s advisers and attorneys say privately they would have balked at such a request. An adviser to former vice president Mike Pence said he was never asked to invoke any emergency powers. But several advisers said that Trump was interested in seizing voting machines and that he did at times suggest that the election should be done over.

Some advisers interviewed for this report spoke on the condition of anonymity to discuss sensitive matters. A representative for Trump did not respond to a request for comment.

Trump listened in White House meetings and on phone calls as allies including Sidney Powell, Mike Lindell, Patrick Byrne and Rudy Giuliani stoked baseless conspiracy claims about voting machines and other matters, according to people present for those conversations. At least some of these figures proposed extraordinary measures, and Trump at times seemed to signal his agreement, according to people present.

Trump even suggested Powell should be appointed as special counsel after she proposed some extreme measures, former White House advisers said, and she made several return trips to the building. That notion was eventually scuttled.

“Trump had a lot of emotional people around him,” said Sen. Lindsey O. Graham (R-S.C.), a Trump ally. “You got all these nefarious characters around him pushing him to do things, but it didn’t happen.”

Among the records the panel is examining are memos authored and circulated by Trump allies that centered on using government powers to seize voting machines, as well as text messages showing lawmakers such as Greene and Rep. Scott Perry (R-Pa.) directly lobbying Meadows to invoke extraordinary powers on the basis of false conspiracy claims. As it continues to examine and collect such evidence, the House committee is trying to determine just how seriously Trump considered these proposals, according to a member of the panel.

Meanwhile, the Jan. 6 committee is also looking to suggest changes to emergency-powers statutes that would provide guardrails against abuse going forward.

“I consider it important for us to determine to what extent the president was prepared or preparing to use the Insurrection Act or make use of any other presidential emergency powers,” Rep. Jamie B. Raskin (D-Md.), a member of the committee, told The Washington Post in an interview earlier this year. “We have to look at how the existence of an arsenal of residual presidential emergency powers threatens the traditional peaceful transfer of power in the country.”

The Insurrection Act is an 1807 law that gives a president authority to federalize the National Guard to quell local rebellions, conspiracies and violence, offering a way around legal prohibitions against using military forces to enforce domestic laws.

Some of the president’s backers who were stoking false conspiracy claims presented memos to key members of Congress and other Trump allies, hoping to get Trump’s support. It is unclear whether he ever saw the documents, which included proposals for National Security Agency involvement and extrajudicial control of the government.

“In our private chat with only Members, several are saying the only way to save our Republic is for Trump to call for Marshall law,” Greene texted Meadows on Jan. 17, 2021 — 11 days after the Capitol insurrection. Martial law refers to the temporary military takeover of civilian functions.

The Post confirmed the exchange involving Greene and Meadows, which was first reported by CNN on Monday. Meadows has provided thousands of texts to the Jan. 6 committee.

Representatives for Meadows and the Jan. 6 committee did not respond to a request for comment.

Texting through an insurrection

Testifying publicly under oath last week about the events of Jan. 6, Greene said she could not recall whether or she discussed the invocation of martial law to keep Trump in power.

A representative for Greene did not respond to a request for comment.

Unlike many other countries, the United States does not grant presidents express emergency powers in its Constitution, said Elizabeth Goitein, co-director of the liberty and national security program at New York University Law School’s Brennan Center for Justice.

Instead, presidents rely on several acts of Congress to provide emergency authority. The most sweeping is the National Emergencies Act, a 1976 law that allows a president declare a “national emergency” at will. Trump declared more national emergencies than any president in a four-year period, including one that authorized building a wall along the southern border that Congress had declined to fund.

Trump would often mock advisers or lawyers who told him such moves were illegal. John F. Kelly, the president’s former chief of staff, told other advisers they were wasting their time by telling Trump some of his ideas were against the law. “He doesn’t care,” Kelly said to others, according to a person with direct knowledge of the comments.

These emergency statutes were not intended to allow a president to challenge election results, Goitein said in an interview earlier this year. And the presidential emergency statutes contain fundamental flaws that could lead to abuse, she argued: “It’s important for the January 6 committee to be looking at these things and to be worried about them, because there is room for mischief around an election. You have to worry now about how a president might choose to construe these laws and apply them in a way that takes them even beyond their fairly capacious bounds.”

Goitein also applauded the committee’s interest in looking at discussions of involving martial law.

“Right now, there is no statutory authority for a president to declare martial law, but a president might assert that he or she has an inherent constitutional authority to declare martial law that Congress cannot restrain,” she said.

A week after the Jan. 6 insurrection, a news photographer captured a picture of Lindell, the chief executive of MyPillow, outside the West Wing holding a piece of paper with words including “Insurrection Act now … martial law if necessary.”

Advisers say Trump shrugged off Lindell and sent him to White House lawyers, who were dismissive of Lindell and soon shooed him out of the West Wing. But Lindell has stayed in touch with Trump, and the two have at times discussed Trump’s reinstatement to the presidency, according to advisers.

A committee subpoena to Michael Flynn, who had served as Trump’s national security adviser, requested information about a reported Dec. 18, 2020, meeting in the Oval Office during which “participants discussed seizing voting machines, declaring a national emergency, invoking certain national security emergency powers.”

The subpoena cited an interview Flynn gave to Newsmax the day before in which he talked about “the purported precedent for deploying military troops and declaring martial law to rerun the election.”

Flynn, who appeared before the committee last month and repeatedly cited the Fifth Amendment, did not respond to a request for comment.

Perry, the Pennsylvania Republican, made similar claims in text messages to Meadows, according to records obtained by CNN and independently verified by The Post.

“From an Intel friend: DNI needs to task NSA to immediately seize and begin looking for international far related to Dominion,” Perry wrote to Meadows on Nov. 12, 2020, apparently urging that Director of National Intelligence John Ratcliffe to order the NSA to investigate an unfounded claim that China had hacked into Dominion voting machines.

Perry has declined to cooperate with the House committee’s request for an interview. He told The Post on Wednesday that he was still concerned about election integrity and did not regret sending Meadows those texts.

“I was concerned then as I’m concerned now, as many Americans are, about the integrity of elections, and asking for investigations into claims of fraud is not out of the realm of what’s right for members of Congress to do,” Perry said.

The committee has also focused attention on the Defense Department, from which it sought “all documents and communications relating to the potential use of military power to impede or ensure the peaceful transfer of power between the election and inauguration day,” according to a record requests made by the committee. It also demanded all documents and communications related to “attempts by President Donald Trump to remain in office” after Inauguration Day.

Investigators have interviewed top Pentagon officials — including former acting defense secretary Christopher C. Miller; longtime Trump loyalist Kash Patel, who was appointed as Miller’s chief of staff on Nov. 10, 2020; and former Army secretary Ryan McCarthy — as they piece together a comprehensive account of the role the Defense Department played in responding to the Jan. 6 attack, according to court filings and subpoenas issued over the course of the investigation.

The committee’s request to Patel explicitly requested all communications relating to “the establishment of martial law, requests to establish martial law, or legal analysis of martial law” and “all documents and communications relating to” invoking the Insurrection Act.

“President Trump never had any intention to abuse emergency powers, I was completely open with the committee,” Patel told The Post in a statement. “I have also repeatedly asked the committee to release the transcript from my hearing and look forward to that being shared with the American people.”

Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, was so concerned about the threat of a coup attempt by Trump and his allies that he discussed a plan with his fellow joint chiefs to resign rather than carry out orders from Trump that they viewed as illegal, Post reporters Carol D. Leonnig and Phil Rucker wrote in their book “I Alone Can Fix It.”

Milley, who was concerned about Trump’s rash of personnel moves after the election, “told his staff that he believed Trump was stoking unrest, possibly in hopes of an excuse to invoke the Insurrection Act and call out the military,” according to the book.

Another proposal outlining a plan for Trump to invoke emergency powers surfaced in a committee court filing released last week. Phil Waldron, a retired Army colonel, coordinated with Trump’s outside legal team on a proposal to issue executive orders empowering various government agencies to investigate whether there was foreign interference in the 2020 election. Waldron emailed the plan to Meadows on Dec. 22, 2020, the filing shows.

Waldron previously told The Post he had sent Meadows a list of IP, or Internet protocol, addresses and other targets for investigation after meeting with Meadows at the White House in December 2020. Waldron said Meadows indicated that he would pass the list on to Ratcliffe but said he did not know whether Meadows ultimately did. Through a spokesman, Ratcliffe said he did not receive such a document.

“Reviewing a president’s use of emergency powers is an important aspect of this committee’s mandate,” Richard Ben-Veniste, a Watergate prosecutor, said in an interview earlier this year. He urged the committee to be transparent about what it learns about the discussions that took place in Trump’s White House.

“Democracies are not self-executing perpetual motion machines,” he said. “They require the care and protection of the governed to endure.”

Part of the committee’s emergency-powers inquiry is focused on Jeffrey Clark, former acting head of the Justice Department’s civil division, according to court filings and committee requests. Clark drafted a letter to Georgia officials in December challenging the vote there and made inquiries about using the International Emergency Economic Powers Act (IEEPA) to go after voting-machine companies, according to emails released as a part of a Senate Judiciary Committee report probing the efforts of Trump and his allies to pressure the Justice Department to overturn the results of the 2020 election.

That act is generally used to impose economic sanctions on foreign adversaries but is written so broadly that a president can freeze the U.S. assets of American companies if the president deems it necessary to address a foreign threat.

On Dec. 28, Clark emailed then-acting attorney general Jeffrey Rosen and another Justice Department official, Richard Donoghue, requesting a classified briefing on foreign election interference issues from Ratcliffe, according to the Judiciary Committee report. “I can then assess how that relates to activating the IEEPA and 2018 EO powers on such matters,” Clark wrote in the email, referencing an executive order that Trump signed permitting sanctions in the event of foreign interference in a U.S. election.

Clark cited unsupported evidence “in the public domain” that Dominion voting machines had been hacked through a “smart thermostat with a net connection leading back to China.”

The IEEPA authorizes a president “to declare a national emergency due to ‘unusual and extraordinary threats’ to the United States and to block any transactions and freeze any assets within the jurisdiction of the United States to deal with the threat,” according to the Senate report.

Clark did not respond to a request for comment.

The Insurrection Act has come up frequently in the Jan. 6 committee’s requests for information, in part because it was bandied about by the president’s supporters, including the far-right Proud Boys and others alleged to have instigated violence. Trump also had a history of mentioning it.

The Insurrection Act has been used in moments of civil unrest — the Civil War, desegregation battles, rioting following the Rev. Martin Luther King Jr.’s assassination. Goitein says the law is far too broad, enabling a president to send in armed forces without the consent of a state’s governor.

Sen. Tom Cotton (R-Ark.) raised the idea of using the Insurrection Act in a 2020 New York Times op-ed, calling on Trump to invoke the law in response to civil disturbances after the killing of George Floyd by police in Minneapolis. Trump mentioned using the act to restrain “leftist thugs” that summer.

In September 2020, Trump ally Roger Stone brought it up in an interview with the far-right website Infowars as a way for Trump to combat election fraud, among other things.

In a Newsmax interview on Dec. 19, 2020, Flynn said the president “could take military capabilities, and he could place those in states and basically rerun an election in each of those states.”

And Trump told Fox News host Jeanine Pirro that September that he would “put down” anti-Trump protests “very quickly” if they broke out after the election: “Look, it’s called insurrection. We just send in, and we do it very easy.”

Trump’s interest in emergency powers drew bipartisan calls for change. Sen. Mike Lee (R-Utah) introduced a bill after the election that would terminate any presidential emergency declaration under the National Emergencies Act after 30 days — unless Congress voted to extend it for one year.

Trump’s expressed interest in mobilizing the military after the election prompted Pentagon leaders to speak out before and after the election.

“This isn’t the first time that someone has suggested that there might be a contested election,” Milley told NPR in mid-October 2020. “And if there is, it’ll be handled appropriately by the courts and by the U.S. Congress. There’s no role for the U.S. military in determining the outcome of a U.S. election. Zero. There is no role there.