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An 1807 law invoked only in the most violent circumstances is now a rallying cry for the MAGA-ites most committed to the fantasy that Donald Trump will never leave office.
The law, the Insurrection Act, allows the president to deploy troops to suppress domestic uprisings — not to overturn elections.
But that hasn’t stopped the act from becoming a buzzword and cure-all for prominent MAGA figures like Sidney Powell and Lin Wood, two prominent pro-Trump attorneys leading efforts to overturn the 2020 election, and even one North Carolina state lawmaker. Others like Michael Flynn, Trump’s first national security adviser who was recently pardoned for lying to the FBI, have made adjacent calls for Trump to impose martial law. The ideas have circulated in pro-Trump outlets and were being discussed over the weekend among the thousands of MAGA protesters who descended on state capitols and the Supreme Court to falsely claim Trump had won the election.
At its core, the Insurrection Act gives the president authority to send military and National Guard troops to quell local rebellions and violence, offering an exemption to prohibitions against using military personnel to enforce domestic laws. Historically, it has been used in moments of extreme national strife — the Civil War, the rise of the Ku Klux Klan, violent labor disputes, desegregation battles, rioting following Martin Luther King Jr.’s death.
Only once, however, has it been used in the wake of an election — and that was to stop a literal militia from seizing the Louisiana government on behalf of John McEnery, a former Confederate officer who had lost the 1872 governor’s race.
Nonetheless, in the minds of some authoritarian-leaning and conspiracy-minded Trump supporters, the Insurrection Act has become a needed step to prevent President-elect Joe Biden from assuming the presidency. Their evidence-deficient reasoning: Democrats illegally rigged the election and are attempting a coup, and Trump must send in the troops to undo this conspiracy.
The conviction shows how hard-edged MAGA ideology has become in the wake of Trump’s election loss. While scattered theories about a “deep state” arrayed against Trump have long circulated in MAGA circles, calls for troops to stop a democratically elected president from taking office have taken those ideas to a more conspiratorial and militaristic level. It also displays the exalted level to which Trump has been elevated among his most zealous fans as his departure looms.
“The central theme here is that there supposedly exists a network of nefarious actors trying to undermine Trump and destroy the United States, and that this is a tool that Trump could use to save the day,” said Jared Holt, a research fellow at the Atlantic Council’s Digital Forensics Research Lab, who focuses on far-right extremism.
The Insurrection Act has been rarely invoked since the civil unrest of the 1960s — the last time was to quell violence during the 1992 Los Angeles riots. And when it has been used over that period, it was always at the request of a state governor.
But over the past several years, it has gained popularity among the far-right fringes, mainly as a way for Trump to solve all their problems, from expelling undocumented migrants, to arresting generals and other “deep state” actors for allegedly plotting coups against Trump.
The idea has also become intertwined with the QAnon movement, the far-reaching and baseless conspiracy that Trump is secretly working to disrupt a cabal of pedophiliac, sex trafficking Democrats and global elite.
In May, a Q-drop — the name for the mysterious missives allegedly from a person at the center of the QAnon movement — floated the Insurrection Act for the first time as a way to solve “growing unrest” after George Floyd was killed by Minnesota police. “Call the ball,” Q said mysteriously.
Then, in June, GOP Sen. Tom Cotton brought the idea of the Insurrection Act into the national dialogue with a New York Times op-ed that called on Trump to invoke the law in response to rioting that was occurring amid largely peaceful protests over racial justice. Trump himself leaned into the idea, suggesting to a rally audience that he would use the act to put down “leftist thugs” protesting that summer.
From there, the Insurrection Act became a quick fix to everything among the more extreme MAGA figures.
Trump ally and convicted political operative Roger Stone brought it up on Infowars as a way for Trump to combat anything from coups to protests to election fraud.
“The president's authority is the Insurrection Act and his ability to declare martial law,” he told host and conspiracy theorist Alex Jones. Stone added that Trump could also use the law to arrest anyone from Facebook CEO Mark Zuckerberg for election interference, to Democratic power couple Bill and Hillary Clinton — an interpretation that legal experts say strains credulity.
Jimmy Gurulé, a former Justice Department prosecutor now teaching at Notre Dame Law School, called the argument tenuous. While the Insurrection Act can be legally invoked as a response to a “conspiracy” that hinders people’s rights, there must actually be a conspiracy to justify sending in federal troops over the objection of local and state officials.
“I think that the key here is, 'Well, what the hell is that conspiracy?’” he said. “No one can articulate the participants in the conspiracy, the scope of the conspiracy, the object of the conspiracy. It’s all over the place.”
Still, Trump himself seemed keen to the idea, telling Fox News host Jeanine Pirro 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.”
Further out on the MAGA fringe, Trump supporters suggested the president jump the gun and simply arrest everyone — before the election.
And now, with the Electoral College confirming Biden’s win, recounts failing to change the results and courts at every level swatting down lawsuits challenging the outcome, some MAGA figures have latched on to the specific Insurrection Act clause granting the president authority to use the military to quash a “rebellion against the authority of the United States.” In their strained interpretation, the clause gives Trump the power to go after the Democrats and deep state actors conspiring to remove him from office. It’s a reading of the law experts immediately rejected.
“When you're talking about a group of conspiracy theorists, and others who lack any kind of legal knowledge, they'll just pull that arrow out of their quiver when the rest don’t work,” said Brian Levin, executive director of the Center for the Study of Hate and Extremism at California State University, San Bernardino.
It seems nearly impossible Trump would actually invoke the law in this manner. But that hasn’t stopped prominent Trump supporters like Wood, one of the lawyers pushing unsubstantiated lawsuits through the courts, from suggesting Trump send the military into Georgia to break up a meeting of electors.
And over the weekend, after the Supreme Court rejected a Trump-boosted lawsuit from Texas asking to overturn the election results in four other swing states, MAGA supporters took to the streets to demand, among other things, that Trump use the Insurrection Act to force an election do-over, or at the very least, stop Biden from taking office.
The Epoch Times itself ran an editorial on Monday arguing that it was time for Trump to invoke the act and send in the military to seize thousands of voting machines in order to find fraud: “Our system is in crisis. Trump would act to restore the rule of law.”
Gurulé, the former DOJ prosecutor, pointed out that even if Trump tried to invoke the Insurrection Act, there really is nothing for the military to suppress.
“I guess it’d be a voting fraud conspiracy, but how is the military going to suppress that?” he said. “By what, seizing all the ballots? By seizing all the voting machines? By then, what are they going to do, conduct the votes? It just doesn't make sense.”
The point, however, might just be to have the Insurrection Act as a talking point to keep the MAGA movement motivated. And Levin, the extremism researcher, feared a darker path if Trump — a man who already speaks in militaristic terms on a regular basis — continued to goad his base into thinking a Biden presidency is an insurrection.
“What is the heart of the Second Amendment, pro-militia, anti-government patriot movement? It's the insurrectionist theory of the Second Amendment,” he said. “It says people can rise up against a tyrannical government. To me, this looks like the last exit on the Jersey Turnpike before we get to that spot.”