Robbins: Understanding the Insurrection Act
The first job of the secretary of state of the United States is to promote American values around the world. What that translates to, in large part, is endorsing our conception of democracy. Two cornerstones of our republican form of government are free and fair elections and, following the former, the peaceful transfer of power. Up until now, that has gone largely unchallenged.
Since George Washington, the losers in the presidential sweepstakes have packed their bags — sometimes more grumpily than others — and have handed over the keys of the democracy to their successors. That long and essential tradition notwithstanding, on Tuesday of last week — exactly one week after Americans in records numbers cast their ballots — Secretary of State Mike Pompeo assured an assemblage or reporters that there would indeed be a peaceful transition of power … to a second Trump administration. The line got few if any laughs.
In other quarters, on Monday last, Attorney General Barr took the unprecedented step to tell prosecutors from one coast to the other that they should examine unsupported allegations of voting irregularities before states certify results in the coming weeks. This, despite the fact that Barr’s memo failed to produce even a breath of fraud. It did, however, lead the top Justice Department election crimes prosecutor to quit in protest over the questionable policy.
On that same day, Secretary of Defense Mark Esper was sacked via a Trump Tweet, reportedly over the president’s continuing pique over Esper’s refusal, in the outfall and blinding outrage over the protests spurred by the George Floyd killing, to call out federal troops to repress the protests. On Tuesday, three more key Pentagon officials were canned.
And then there’s this: The Trump campaign team has been ginning up the idea of campaign-like rallies to stoke the base and encourage them to question the results of the election wherein the president was roundly trounced.
Add to that a dash of Rudy Giuliani, Mitch McConnell, and the herd silence of the vast bulk of legislators from the president’s side of the aisle who are as mute as stage play full of mimes.
What is all this pointing to?
Who really knows? But one thing that is worrisome is the Insurrection Act.
Stated simply, the Insurrection Act of 1807 is a United States federal law that empowers the president of the United States to deploy U.S. military and federalized National Guard troops within the United States in particular circumstances, such as to suppress civil disorder, insurrection, and rebellion. “Insurrection” may be defined as an act or instance of revolting against civil authority or an established government. How broadly will the pouting president strain for that to be construed?
Last invoked in 1992 to quell the Los Angeles riots after the acquittal of four white police officers in the beating of black motorist Rodney King, the Act authorizes “the President to employ the armed forces during a natural disaster or terrorist attack.”
The Act goes on to provide, in Section 251, that:
“[T]he President may, upon the request of [a state’s] legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia.
The next section, 252, says:
“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
You may be gulping deeply here. What might this president count as “rebellion?” What might he claim is insurrection? What pretext might he deploy — that he is “defending” our democracy from a “rigged” election? Would he claim, as he did in the Ukraine affair, that any act he takes in his own behalf is obligatorily in the best interests of the country?
Would Trump make himself all the smaller by launching federal troops against We the People in order to remain ensconced behind the White House gates? Would he find sufficient willing or cowed accomplices?
Was Esper’s sacking instigated to fill the secretary’s seat with a more compliant toady? Did Barr’s memorandum and Pompeo’s seemingly off-the-cuff remark presage some more sinister intent? Is all the barking from the White House a signal rather than the simple baying of a wounded Trump?
Time alone will tell. The possibilities, though, are chilling.
Let’s hope, though, that the president’s better angels guide him towards a dignified and peaceful exit.
I had hoped that when we were done with Trump we would be … eh-hem… done with Trump. I should have known better. The one immutable fact of Trumpworld is the focus must always be on Trump. Even when he is the loser, the spotlight must shine more brightly on him than the good and decent man who won.
It’s time to move along, Don. As graciously as you can muster. You are slowing all our rolls towards a better and more perfect Union.