Trump martial law: Can Donald Trump declare martial law?

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President Trump will leave the White House in four days on January 20, making way for a Democrat presidency under Joe Biden. The last week has seen figures filtering in and out of the property as they move the First Family’s belongings. Photographers have pictured some of his allies outside as well.

Can Donald Trump declare martial law?

The ally who turned up the meet the President on Friday was Mike Lindell, an American businessman who founded the company My Pillow.

He has supported Mr Trump since 2016, and notably appeared at campaign rallies and the Republican National Convention (RNC) preceding last year’s election.

A picture of Mr Lindell lingering outside the White House showed details of notes the CEO was holding before seeing the President, which made a passing mention of “martial law”.

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The words “martial law if necessary”, among other mentions of moving pro-Trump personnel into the CIA and the Insurrection Act, were visible on the page.

Some Trump allies have urged the President to invoke martial law as a means to keep his position past January 20.

At its most extreme, the concept – which doesn’t have a concrete legal definition in the US – means suspending civil authority and replacing it with military leadership.

In essence, this would give direct control of an area or areas to the military, of which the President is Commander-in-Chief.

Trump supporters have floated the law as a means for the President to retain direct control over US authorities and prevent a passage of power to Mr Biden next week.

Mr Trump has made no indication he intends to invoke martial law, and recently committed to a peaceful transfer of power.

Both Congress and the President can impose these conditions in the US, but they have legal constraints.

This power is reserved for national emergencies and has historically only been used in exceptional cases such as the bombing at Pearl Harbor during World War Two.

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Legal precedent also means Congress has to give its assent before a president enacts martial law.

The Posse Comitatus Act, which Congress passed in 1878, prevents US military involvement in domestic law without congressional approval, depending on the circumstance.

A previous Supreme Court ruling in 1866 prevented martial law where civil courts are open and operational.

Stephen Vladeck, a professor at the University of Texas School of Law, characterised martial law as “a state of affairs arising from a total breakdown of civil order”.

People also theorised Mr Trump could invoke a presidential power known as the Insurrection Act, which was passed by Congress in 1807.

The act allows the President to assert military control where there is an insurrection threatening domestic violence or deprives people of their Constitutional rights.

Legal experts have dismissed the claims Mr Trump would or could invoke the legislation, and even then it wouldn’t prevent the transition of power to Mr Biden.

Thaddeus Hoffmeister, a law professor at the University of Dayton, told USA Today: “When you invoke the Insurrection Act, it doesn’t necessarily mean that everything is going to grind to a halt. It doesn’t mean that the inauguration doesn’t go forward.”

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