It is now a public fact that Donald Trump and his cabal, including Republican members of Congress, attempted a coup on Jan. 6, 2021. This de facto conspiracy was sophisticated, multidimensional and nationwide in scale, and included what became a terrorist attack on the U.S. Capitol. We know that Donald Trump was aware of at least some details of this plot and was involved in its planning and execution.
To deny these obvious facts is to either be a believer in the Big Lie and supporter of Trump and the Republican Party's war on American democracy or to be in an extreme state of willful denial. As a practical matter, it is much the same thing.
Within a few weeks, the House select committee investigating the events of Jan. 6, 2021, will finally hold televised public hearings. Their primary task will be to explain to the American people how serious the events of that day actually were and to establish a case that Donald Trump and his co-conspirators should be punished for their crimes.
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One question that demands much more public attention than it has gotten is how close Donald Trump came to invoking the Insurrection Act, declaring martial law, or to using other presidential emergency powers in an effort to nullify the 2020 election. In the weeks and days before Election Day, military and other national security leaders publicly sounded the alarm through editorials, interviews and other means that the Trump regime might try to order the armed forces to intervene on his behalf. That such figures would feel the need to declare that they were loyal to the Constitution, and not to a particular political leader, is almost unprecedented in American history.
Because of a combination of normalcy bias, cowardice, and outright denial about Trump and his cabal's obvious plans, the mainstream news media and most other public voices did not give these unprecedented warnings the sustained attention they merited. As a result, the American people still do not properly understand how close they came to losing their democracy on Jan. 6, 2021. That danger has only increased since then as the Republicans and their larger movement have escalated their plans to overthrow the country's multiracial democracy.
To discuss this urgent question and others, I recently spoke with Elizabeth Goitein, co-director of the Brennan Center's Liberty & National Security Program and a senior practitioner fellow at the University of Chicago's Center for Effective Government. She is an expert on presidential emergency powers, government surveillance and government secrecy. Her writing has been featured in the New York Times, the Washington Post, the Wall Street Journal, USA Today, the Los Angeles Times, the Atlantic, the New Republic and elsewhere. She has also appeared as a frequent guest on MSNBC, CNN and NPR.
In this conversation, Goitein details various scenarios through which Trump could have declared a "national emergency," perhaps including martial law, as a way of remaining in power — and discusses whether that gambit would ultimately have worked. The president of the United States, she explains, has access to immense powers in a time of national emergency, many of which are secret and not subject to any effective oversight from Congress or the courts.
It is also publicly known that Trump wanted the military to use lethal force to suppress the marches and other protests that took place across the country in the aftermath of the murder of George Floyd by Minneapolis police. Goitein explores what would most likely have happened if Trump had given such an order. She also shares her concerns about America's current democracy crisis and her perception that the events of Jan. 6 are part of a much larger plan to impose a type of "competitive authoritarian" system in place of genuine electoral democracy.
This transcript has been edited for length and clarity.
How do you feel about this moment, with America's democracy crisis and all the other challenges facing this country?
I'm worried, because after the transition to the Biden administration it seemed that people understood there was work to be done before the next presidential election to address some of the weak points in our system that are vulnerable to a leader with autocratic impulses. It also seemed that people understood that what happened with Trump was not necessarily a one-time aberrant occurrence, that there was a real danger of such a movement to undermine democracy trying such things again. Notice I said "movement" and not "moment." We would be seeing it again in future elections.
There seemed to be a decent level of understanding that meant we had to take steps to shore up the guardrails of democracy. I've heard the phrase "guardrails of democracy" a lot. But I don't see those guardrails being strengthened fast enough. I also don't see the urgency and priority being placed on that by either members of Congress or the Biden administration. That's what worries me, because we are running out of time.
How do you make sense of that lack of urgency?
I think there is a theory at work where if the Biden administration shows the American people that democracy can work for them, such an outcome will be the best thing that can be done to push back against anti-democratic forces. Thus, the priority is on laws and policies that will increase the well-being of Americans in their everyday lives. I support that. I believe that is an important part of the equation. I also believe that outcome is worth advancing for reasons totally unrelated to saving our democracy.
There are people in the United States, especially since COVID, who are in dire need of help from the government and some kind of social safety net. But I do not think that can be a substitute for laws that make it harder for a president, and especially one who is a would-be autocrat, to consolidate power. I think it's a mistake to de-prioritize the latter in favor of the former. I don't know for sure that's what's happening, but it's a theory that would explain what we're seeing in terms of the administration's priorities.
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The Democratic leadership in Congress is not going to prioritize something that isn't a priority for the Biden administration. The Biden administration is not necessarily eager to pass laws that rein in its own powers during a term when there are so many crises. Whether that's COVID, or whether it's Russia's invasion of Ukraine, this is a time when it would take an administration with a very long view to embrace laws that would restrict the president's own power. Very few presidents think that way.
I do believe that if legislation that reformed emergency powers came onto President Biden's desk, he would sign it. I can't say that for other presidents, certainly not for the last president, Donald Trump. But that is very different from saying that Biden is going to force Congress to pass emergency powers reform. If it is not on the White House priority list, it is going to be very difficult to make that happen in Congress.
With so much happening in terms of the challenges to American democracy, what advice would you give to people about how to make sense of it all? What should they prioritize?
It would take an administration with a very long view to embrace laws that would restrict the president's power. Very few presidents think that way.
I'm an expert on civil liberties and national security, with a specific focus on presidential emergency powers. That is what I spend my time worrying about. That does not mean it's the only thing that anyone should be worried about, by any means. For example, my colleagues at Brennan Center who work on voting rights are being consumed by that work right now, as well they should. That is another area that the American people should be extremely worried about. There is an attack all around this country, by conservatives on the state and local level, on voting rights.
I understand that with so much going on at the same time, it can be hard to figure out what to make of it all. What I would say is: Do not let the worries become paralyzing. Pick something that you care about. Pick something that you think is important and do something about it.
Call your congressperson. When someone actually picks up the phone and calls their representatives in Congress, that gets noticed. Even today, with all the big money in politics, phone calls to a congressional office get noticed. Do some googling to see what local organizations are working on the issues that you care about. Try to be a force for preserving our democracy. It can seem overwhelming, but once you start biting off pieces of it and putting one foot in front of the other by taking steps to be part of the solution, that work can be very fulfilling.
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What were you thinking as you watched the events of Jan. 6, 2021?
I have never been so aware of watching history unfold. As I was watching the events that day, I kept thinking that whatever comes of this, the world and the United States of America are not going to be the same after this. I've never seen anything like what happened on Jan. 6. None of us have in this country. I was in awe. I wouldn't say I was frightened, because I was pretty sure I knew how it was going to end. I was certainly concerned for the safety and well-being of the people inside the Capitol. I was pretty sure that even a few thousand people attacking the U.S. Capitol were not going to keep President Trump in power.
Perhaps there was a part of me that was thinking, "OK, when people see this, they will understand the threat, and they will reject this. They will reject this anti-democratic movement because they will finally see it for what it is. Democracy means enough to most of us in this country that these people attacking the Capitol will finally be marginalized."
That really didn't happen. Republicans have embraced these anti-democracy forces.
It shows how serious the threat is. It also shows that we have to be just as serious in resolving it. Our democracy is under threat. That doesn't mean that our democracy is lost by any means. We should be scared, but as I said before, being scared shouldn't lull us or intimidate us to inaction. It's the opposite. We have to be just as fierce in our defense of democracy as its opponents are in attacking it.
What would have been the worst-case outcome on Jan. 6, with Trump attempting to stay in power. Could he have invoked the Insurrection Act or perhaps even staged a military coup?
There was a scenario where Trump tries to construe the transfer of power on Jan. 20 as an insurrection, and invokes the Insurrection Act to stop Biden from becoming president.
The worst-case scenario has nothing to do with emergency powers. The real worst-case scenario is that the president attempts a military coup, which is not legal. There is no emergency authority that gives the president the power to declare a military coup. We are extremely fortunate that Trump did not have the military on his side. Military leaders, including [acting] Defense Secretary Miller and the chair of the Joints Chiefs, Gen. Milley, were extremely concerned about the potential for misuse of the military around the time of the presidential election and were determined not to let that happen.
That is one of the country's democratic institutions and guardrails that held: Senior national security officials within the administration retained their loyalty to the Constitution and understood that was their first loyalty. It was a loyalty that went beyond any they might feel toward the president or to their party. That was one of the silver linings of Jan. 6.
A military coup is the worst thing that could have happened. Short of that, I do believe that President Trump could have invoked the Insurrection Act. In fact, I actually believe that on Jan. 6 there was an insurrection, so the Insurrection Act would have been appropriate if the purpose were actually to suppress the attack on the Capitol. But what might have happened instead is that President Trump could have invoked the Insurrection Act as a pretext to get the military involved for the wrong reasons.
There's also a scenario where the president, with or without an attack on the U.S. Capitol, could have somehow construed the transition of power on Jan. 20 itself as an insurrection. Trump could have said, "I won the election despite Congress' certification. Therefore any attempt by Joe Biden to take office is in fact an insurrection. I'm going to declare the Insurrection Act to put down the insurrection."
Obviously, that would have been a clear abuse of the Insurrection Act, and I believe the courts might well have put a stop to it. In any event, it wouldn't have worked in the sense that on Jan. 20, under the Constitution, Trump was no longer president. Even if he somehow managed to prevent President Biden from walking into the White House, he still would not have been president himself. At that point, Nancy Pelosi, as speaker of the House, would have been next in line.
My ultimate point is that there are no emergency powers, and certainly the Insurrection Act is not one of them, that would allow the president to remain in power when there's been an election and someone else has been elected.
Trump was attempting a "self-coup" or "legal coup." But by definition, a leader like Donald Trump does not respect the rule of law. The scenarios you outline seem to assume that the law holds, and that the president and his administration respect it.
It is entirely true that the rule of law means absolutely nothing to an autocrat. It matters in the sense that they need to keep in mind what they can get away with in the courts. They also need to keep in mind what they can get away with politically. If for no other reason than those, I think that the reason why Trump didn't do some of the things that were urged by people such as Michael Flynn was, at least in part, because those actions were so plainly unlawful.
There were various people who were urging Trump to invoke emergency powers to seize the voting machines. If there was in fact an emergency power that authorizes seizure of voting machines, do you think for a second that President Trump wouldn't have exercised it? Of course he would have. The reason he didn't is because there isn't any such power, and he didn't think he could get away with doing it. The other possibility is that there were people, high up in his administration, who knew that they could not get away with seizing the voting machines. Therefore, Trump and his administration did not try it.
What if Trump had ordered the military to seize the voting machines? Or if he had invoked the Insurrection Act? What do you think would have happened?
If Trump had ordered one of the senior officials in his administration to do something that was blatantly illegal, and potentially unconstitutional at the level of preventing a peaceful transition of power, I believe someone like Gen. Milley probably would have refused or resigned. Alternatively, he would certainly have refused, and possibly then been fired.
If there was in fact an emergency power that authorizes seizure of voting machines, do you think for a second that President Trump wouldn't have exercised it?
A future president might be a little more crafty than Trump about putting people in place ahead of time who would be willing to execute such unconstitutional and illegal orders. Ultimately, if Trump had ordered such measures, he would have faced resistance from within his administration. He would have to fire people and then get some other person in an acting position to implement the order, and then it would have gone to the courts.
I think the courts would have stopped a blatantly unlawful power grab. Yes, I know many people are skeptical about that. They will say, "These are Trump judges, and they'll do anything Trump wants them to do." But we know that's not true because after the 2020 election, Trump and his supporters filed upwards of 60 lawsuits in an attempt to invalidate the results in various places around the country. Every judge but one rejected those lawsuits. That includes not only many judges appointed by Republican presidents but several Trump appointees as well.
The courts would have stepped in. At that point, when the courts have said, "You can't do this, you have to stop," if the president continues it is no longer a legal coup. Then it is just a plain coup, meaning potentially a military coup, and then we're back to the fact that the people who were in charge of the military were not willing to go along with such a plan.
What emergency powers does a president actually have?
There are two categories of powers. The first are statutory emergency powers. These are the emergency powers that Congress has delegated to the president. These are public. You can read them and know what is permitted and what is not permitted. They're limited. The president, when he declares a national emergency, can avail himself of these statutory powers, but he can't do anything that's outside of those powers. This is particularly true in the national emergency context, which is governed by the National Emergencies Act. When the president declares a national emergency, that action unlocks powers that are contained in more than 120 different provisions of law. They all say some variation of: "In a national emergency, the president can do X." That means the president can do X, but not Y or Z.
That having been said, some of those powers available in an actual emergency are pretty alarming. They include the International Emergency Economic Powers Act, or IEEPA, which is what some Trump supporters suggested could authorize the seizure of voting machines. That law allows the president to essentially freeze any assets or prohibit any financial transactions in order to address a foreign threat. While the threat has to be at least partly coming from overseas, the assets that the president freezes can be assets held by Americans.
The IEEPA is extremely powerful because it basically allows the president to freeze any American's bank accounts and prohibit anybody else from engaging in transactions with that person. The president can do this simply by saying, "I think this person is associated with a foreign threat."
The president also has broad powers to shut down communications as well. Correct?
That would be the Communications Act, which allows the president to take over or shut down radio communications facilities during a national emergency. If a president declares a threat of war, he can go further and he can take over or shut down wire communications facilities. The Communications Act could conceivably be interpreted to allow the president to take over or shut down U.S.-based internet traffic. There are also emergency powers that allow the federal government to control domestic transportation.
There are also powers that do not require the declaration of an emergency. This would be the Insurrection Act, which gives the president very broad discretion to deploy federal military forces as a domestic police force. This law is dangerously broad and outdated. The whole concept of using military troops as a domestic police force is really contrary to the principles of the U.S. Constitution and to the traditions of this country. In general, using the military as a domestic police force is prohibited by the Posse Comitatus Act. But the Insurrection Act is an exception to the Posse Comitatus Act, and it is written in such a broad and frankly confusing way that it gives the president a dangerous amount of power.
I grew up during the 1980s and the end of the Cold War and read a great deal about what would happen in the aftermath of a nuclear war. One of the things that was often referenced during movies and books about nuclear war were the secret emergency powers that a president has. These powers are very ominous and most American have no idea about them.
What you're worried about are the "claimed inherent emergency powers." Presidents for decades have claimed that the Constitution gives them all manner of inherent powers that are not spelled out, by virtue of them being deemed the commander in chief of the armed forces. There are supposedly these broad inherent powers, established and detailed for the most part in Department of Justice memos, many of which have never been seen. We don't actually know the full scope of what presidents believe their emergency powers to be.
Presidents for decades have claimed that the Constitution gives them all manner of "inherent powers" that are not spelled out. We don't actually know the scope of what presidents believe their emergency powers to be.
There are a set of documents known as Presidential Emergency Action Documents. These are drafts, directives and orders that are prepared in advance of a range of potential worst-case scenarios. They are ready for the president's signature if one such event was to happen. None of these Presidential Emergency Action Documents, these drafts, directives or orders, has ever been leaked or released. The only way we know what's in them is by secondary sources, including some official sources such as FBI memos and things of that nature which describe their content.
From those secondary sources, we know that, at least in the past, some of these documents purported to implement martial law and purported to suspend habeas corpus unilaterally. Some of them provided for the roundup and detention of Americans who were on a list of so-called subversives. Some of the actions contemplated in these documents are blatantly unconstitutional, but presumably somebody at the Department of Justice who rubber-stamped them was taking the position that there are inherent constitutional powers that the president has under Article 2 [of the Constitution] to take such measures.
To me, these unknown secret claims of emergency power are in some ways the scariest, because we have no idea how far they go. Even Congress doesn't have access to these documents.
It has been confirmed that Trump wanted the military to shoot protesters during the George Floyd protests. What would such an order have looked like? How would it have been translated down to troops on the ground?
I highly doubt that there's any Presidential Emergency Action Document that gives a president authority to order protesters to be shot. I do not believe there's even any claim to some sort of legal authority to do something like that. Essentially, if the president ordered the military to shoot protesters in the legs, that would clearly be an illegal order and members of the military would have an obligation to disobey it. These people aren't posing any threat, they're not being shot in self-defense. We should not imagine that emergency powers are so capacious that they would ever encompass something so blatantly unlawful. That's an order from the president that the troops would have to disobey.
I'm more worried about a scenario in which, let's say, there are Presidential Emergency Action Documents that provide for the imposition of martial law in a scenario where there is an insurrection. The term "insurrection" is in the eye of the beholder. If the beholder in that scenario is a president who believes that he is entitled to stay in power no matter what, at that point a declaration of martial law would enable the military to take the place of civilian government.
Now, that's very different from what's in the Insurrection Act. The Insurrection Act allows the military to act in support of civilian authorities in order to suppress an insurrection or to quell domestic violence. The military remains subordinate to civilian authorities in that scenario. A scenario in which the military takes over the functions of civilian government is what would be commonly referred to as martial law.
What worries me is that there is no single statute that flatly prohibits martial law. In its absence, I could see a president and the Justice Department arguing that he has that inherent constitutional authority.
The Brennan Center has analyzed this question and has concluded that the president actually has no authority to invoke martial law. That's because Congress has ruled it out by virtue of enacting an extensive network of laws governing domestic deployment of the military. Martial law would be inconsistent with this network of laws. That said, there is no single statute that flatly prohibits martial law, and in its absence, I could see a president and a Department of Justice taking the position that the president has an inherent constitutional authority to declare martial law.
To me, that is a more realistic fear and a major potential concern, one that could be alleviated by Congress.
How do we find that balance, between making sure that a president has the necessary power and latitude to act in response to an emergency, and preventing the abuse of those powers by an autocratic leader?
Checks and balances. It is appropriate to give the president much more flexibility in times of crises, but that flexibility can't be boundless. It should be time-limited, and it should have checks built in to address instances of overreach. Those checks, for the most part, are the other branches of government, the courts and Congress. Any extension of emergency powers to the president should come along with the potential for meaningful judicial review, which means there have to be standards articulated that the court can look to. In my expert opinion, saying that the president can declare a national emergency whenever he wants is problematic. What one can do is come up with a basic definition of what an emergency is, and what an emergency isn't. That definition should not constrain or micromanage the president, but still give the courts some ability to step in.
If the president invokes the Insurrection Act or declares a national emergency and abuses that authority, right now the only way for Congress to stop the president is to pass a law by veto-proof supermajority. When you're talking about powers that are so potent and so vulnerable to abuse, there needs to be a more meaningful check than that. One of the reform proposals that has gained traction in Congress is to require a declaration of national emergency to terminate automatically after 30 days, unless Congress votes to approve it. That would give the president lots more flexibility when he needs it most in the immediate aftermath of a crisis, but then would allow Congress to step in and serve as a check against presidential overreach if the president takes things too far.
When I warn people about how dangerous Donald Trump was and is, and the extreme nature of the country's democracy crisis more generally, I inevitably receive emails and messages telling me to stop scaring people, that this is too frightening and is somehow counterproductive. Given what you have explored in this conversation and your work, what would you say to those people?
If they're scared by what I've said, I take that as a good sign. I don't want anyone to feel hopeless, and I think the trick to taking the edge off the fear is to take action. As I said before, I think when there is a problem that's frightening, as soon as you start doing something about that, it takes the fear and turns it into intention. I think that's a better solution than simply hiding your head in the sand. If you do that, you're going to find out that a lot more scary things happen when you do nothing than when you tackle the problem.
What is your diagnosis of American democracy right now?
I've never seen anything quite like this before. I can tell you what I've seen happen in other cases, but I cannot predict the future. The truth is, we haven't seen something like this in this country before. We know it's serious. We know that the patient requires immediate help, but we just don't know how it's going to end. That's up to us.
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