Pentagon and Washington-area military leaders are on red alert, wary of what President Donald Trump might do in his remaining days in office. Though far-fetched, ranking officers have discussed what they would do if the president declared martial law. And military commands responsible for Washington DC are engaged in secret contingency planning in case the armed forces are called upon to maintain or restore civil order during the inauguration and transition period. According to one officer who spoke to Newsweek on condition of anonymity, the planning is being kept out of sight of the White House and Trump loyalists in the Pentagon for fear that it would be shut down.
“I’ve been associated with the military for over 40 years and I’ve never seen the discussions that are being had right now, the need for such discussions,” says a retired flag officer, currently a defense contractor who has mentored and advised his service’s senior leaders. He was granted anonymity in order to speak without fear of reprisal.
A half-dozen officers in similar positions agree that while there is zero chance that the uniformed leadership would involve itself in any scheme to create an election-related reversal, they worry that the military could get sucked into a crisis of Trump’s making, particularly if the president tries to rally private militias and pro-Trump paramilitaries in an effort to disrupt the transition and bring violence to the capital.
“Right now, because of coronavirus,” one retired judge advocate general says, “the president actually has unprecedented emergency powers, ones that might convince him—particularly if he listens to certain of his supporters—that he has unlimited powers and is above the law.”
“But martial law,” says the lawyer, “is the wrong paradigm to think about the dangers ahead.” Though such a presidential proclamation could flow from his order as commander-in-chief, an essential missing ingredient is the martial side: the involvement and connivance of some cabal of officers who would support the president’s illegal move.
Such a group doesn’t exist, he and other experts agree, but there could still be room for mischief, confusion, and even use of military force. It would just not be in the way Trump might intend, particularly if he continues his quest to destabilize the democratic process.
“There is no role for the U.S. military in determining the outcome of an American election,” Army Secretary Ryan McCarthy and Army Chief of Staff General James McConville said in a joint statement last Friday.
Yet while the Pentagon officially responded to Newsweek’s queries with various quotes from defense leaders that the military has no role to play in the outcome of the election, it declined to address post-election crises or the discussions of martial law, referring questions to the White House. The White House then declined to comment.
Similarly, officers who were willing to speak about the subject insisted on anonymity, fearful that use of their names might provoke the ire of the president. They feared that publicly stated opposition to the president’s scheme to undermine the election—whether that is to proclaim martial law, to seize voting machines, or even to halt Congress from ratifying state elector’s results on January 6—could actually embolden Donald Trump to act.
“At this point there’s no telling what the president might do in the next month,” says a former Northern Command (NORTHCOM) commander, one who has been intimately involved in the development of domestic civil planning. “Though I’m confident that the uniformed military leadership has their heads screwed on right, the craziness is unprecedented and the possibilities are endless.” The retired flag officer also requested anonymity because he is actively advising senior officers and is not authorized to speak on the record.
In some ways the military has already gotten dragged into the issue. Retired Lt. General Michael Flynn, President Trump’s first national security advisor and a recently pardoned felon, publicly broached the subject of martial law on the conservative channel Newsmax last week, saying that the president should use the military to seize voting boxes and “rerun” the election in certain states.
“He could take military capabilities and he could … basically rerun an election,” Flynn said. “The president has to plan for every eventuality because we cannot allow this election and the integrity of our election to go the way it is.” Flynn’s suggestion has been openly condemned by numerous retired officers. Lt. Col. Lawrence Wilkerson, former chief of staff to Secretary of State Colin Powell, said on MSNBC that Flynn was a “disgrace to his uniform.”
After his television remarks, Flynn was invited to the Oval Office over the weekend, according to The New York Times and CNN, where he repeated his proposal. Since then, top aides have shot down the president’s musings, and military sources point out that none of these discussions have included the Pentagon, and no one in the military supports any use of the armed forces to keep Donald Trump in office.
But officials willing to speak about the martial law discussions, and to speculate about the president’s state of mind, are quick to point out that in March the president said he had “the right to do a lot of things that people don’t even know about.”
That statement came a day before the president declared a COVID-19 national emergency on March 13, a state that continues to this day as specified in three laws—the Public Health Service Act, the Stafford Act, and the National Emergencies Act.
The Public Health Service Act is a 1944 statute that affords the president broad powers to mandate and enforce a nationwide quarantine. The Stafford Act, created mostly for natural disasters, allows the president to move to alleviate a local civil emergency without a request from a governor (that is, when he certifies that the primary responsibility for whatever the emergency is rests with the federal government). There is no aspect of either of these first two statutes that involves the military in any way.
The National Emergencies Act, on the other hand, could be more problematic if Trump chose to invoke it. It generally gives the president nearly unlimited discretion in defining the conditions of a national emergency. President George W. Bush declared a national emergency under this act after the September 11 terrorist attacks in 2001. President Barack Obama declared a national emergency with regard to cybersecurity on April 1, 2015, a declaration still in effect. In both the Bush and Obama declarations, the presidents specified what authorities they were granting to government agencies and departments, mostly to redirect funds (and since then, a February 15, 2019 declaration of national emergency has been used by President Trump to divert defense construction dollars to pay for the southern border wall).
Though the National Emergencies Act does not itself provide specific powers—it merely allows the president to implement other statutes—experts worry that Trump and his loyalist supporters might imagine that the Act allows him to invoke extraordinary powers when in fact there is no precedent behind such a move.
And though President Trump himself tweeted “Martial law = Fake News” the day of the New York Times report, officials who have served in the Trump White House say that his reference to “things that people don’t even know about” portends true dangers, as the president indeed does have secret powers and has been fascinated with their existence. Military officers and National Security Council officials with direct knowledge of the early coronavirus deliberations at the White House say Trump was briefed by his national security team on a broad range of extraordinary powers available to him, including secret military plans to suppress civil disturbances in the “National Capital Region” and extraordinary powers contained in Top Secret continuity of government plans, both first revealed in Newsweek.
“The president is not a lawyer and he doesn’t pay attention to details, but he is also fascinated with the secret levers of the presidency that are available to him,” says a former national security council staffer who spoke off the record because he is not authorized to discuss the highly classified plans. Contained in the various packages briefed in the Oval Office during the early months of COVID-19, he says, were discussions of so-called Presidential Emergency Action Documents. PEADs originated during the darkest days of the Cold War and are proclamations, executive orders, presidential messages and draft legislation ready for submission to Congress, prepared and approved by the White House, the Justice Department, and Congressional lawyers.
A separate presidentially-activated code word exists to implement each of some five dozen PEADs—the documents already dispersed amongst various departments and government agencies. Those codes are contained in the same satchel—the so-called “football”—that holds the president’s nuclear authenticators and is carried by military aides who are always with the president. In other words, such orders for extraordinary powers have been regularly briefed to President Trump and are only an arm’s length away.
Officials caution that none of the PEADs are applicable to any election scenario. But the little-known directives were reviewed to update them for coronavirus, to take into consideration the possibility of a countrywide breakdown in conditions other than war. During that review, some 60 documents circulated in a very small government circle of lawyers and emergency specialists: some of the PEADs themselves, some national security-related interagency agreements, some lower-level “major emergency actions,” emergency action “packages” and draft presidential proclamations.
One of the PEADs—they are organized into seven broad lettered categories, each on a different topic—addresses martial law. That document, according to a former Justice Department lawyer who was involved in an Obama administration review of the entire sheaf of PEADs, is probably the only explicit government statement setting out a domestic application of such a presidential proclamation. The PEAD, sometimes referred to as Directive 20, confers upon the Secretary of Defense powers to maintain public order, ensure public safety, and enforce federal, state, and local laws. It also directs the Secretary to form an interim government.
The former Justice official cautions, though, that Directive 20 assumes that the United States has been subjected to armed attack and is suffering millions of deaths, that Washington has been destroyed, and that state and local governments are paralyzed, with essential services disrupted.
“Of course Directive 20 can’t be implemented, both because the conditions aren’t present and the military wouldn’t go along,” the former official says.
More applicable to the current situation, he says, is the PEAD that allows for “proclaiming the existence of an unlimited national emergency.” Executive orders, he says, already exist that define a “national security emergency” as including military attack, natural disaster, a technological calamity, and “other emergencies” that threaten the national security of the United States. “The entire apparatus is both meticulous and highly ambiguous,” the official says. He declined to speak on the record because the subject matter—PEADs and emergency powers—is so highly classified.
Martial law, according to Black’s Law Dictionary, “exists when military authorities carry on government or exercise various degrees of control over civilians or civilian authorities in domestic territory.” According to longstanding federal rules, the condition of “public necessity” mirrors that of Directive 20: that is, that there be extraordinary conditions necessitating military involvement, and that the duration of martial and its purpose be clearly stated.
Military lawyers say that threats to public safety and order have to exist beyond the capacity of the federal government or state and local government to resolve. But they point out that in Portland, Oregon, and other cities across America, the Department of Homeland Security has already declared that the local governments have lost control, necessitating federal intervention, even without the state’s permission. That precedent could embolden the White House to believe it has the right to act.
So it’s also conceivable that in the District of Columbia a commander could independently invoke martial law to restore order were there a complete breakdown. All the sources Newsweek spoke to, from the Pentagon military leadership down to the Joint Task Force already activated for coronavirus and used to suppress the George Floyd riots, agree that such a declaration is unlikely—that is, unless there is an armed rebellion undertaken on behalf of Donald Trump.
To guide the Pentagon’s preparation of civil disturbance contingency plans, the Department of Justice prepared a legal analysis of peacetime martial law that further questions its relevance in the presidential transition. The classified memorandum, reviewed by Newsweek, calls use of the term “martial law” improper in cases of law enforcement, concluding that there is neither a Constitutional nor statutory definition that applies. The military might be used to perform judicial functions, the memo says, but the substitution of the military for civilian control is lawful only when unrecognized enemy governments—something like the Confederate States, for example, or a deposed and defeated government on foreign territory—no longer exists.
Still, the tangle of contingency plans, continuity of government procedures, secret presidential directives and even unknown powers, experts say, is now partially responsible for the current state of affairs and form a real basis for any anxiety that Donald Trump could do anything to cause even more chaos in the coming weeks.
“The greatest danger is that the very existence of these layers of secret directives might convey the impression of powers and authorities that don’t really exist in peacetime,” the former Justice Department lawyer says.
In years of writing on this subject, I have never heard so many officers—active and retired—willing to talk openly about the need for professional military officers to review their sacred obligations to refuse to follow unlawful orders and to think through their roles and duties given the Donald Trump wild card, even though he is still president.
“You’ve got to recognize an illegal order when it comes your way,” says another retired flag officer, saying he has been involved in unprecedented internal discussions going on right now about this subject. The officer, who declined to speak on the record, says that though lawful and unlawful orders are a part of officer training from the beginning, “the principles of loyalty to the Constitution hammered home from the start of every career, … we’ve never had the real thing, never someone who occupied the White House who conducted themselves anything like President Trump.”