“Flynn had recently appeared on the far-right outlet Newsmax suggesting that Trump could order “military capabilities” to “rerun an election” in swing states, and that “[m]artial law has been instituted 64 times.” Meanwhile, Arizona GOP Chair Kelli Ward urged Trump to “Cross the Rubicon” and impose martial law to claim an election that the Electoral College, not to mention several dozen court rulings, has now certified he lost.
Public reaction to Flynn’s “coup” proposal — which he’d shared previously through a press release on Twitter from the right-wing group “We The People” (tagline: “Freedom never kneels except for God”) — have been furious and damning.”
“There’s a buffet of sedition statutes (18 U.S.C., sections 2383 through 2385) which have some potential relevance here. Section 2383 makes it a crime to incite or assist in a rebellion against the United States or give comfort to those who incite an insurrection. Section 2384 carries a 20-year jail term for seditious conspiracy, which requires an agreement between two or more people to “overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States.” The third provision, 2385, makes it a crime to “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States.” The statute goes on to criminalize the intentional publication or circulation of any printed matter advocating the desirability of overthrowing the U.S. government. (Thirteen states also have their own laws banning “criminal anarchy.”)
Historically, sedition laws have been used to target critics of the government, and some of those prosecutions have run afoul of First Amendment protections. But the First Amendment does not uniformly protect speech if it incites violence.
Was Flynn inciting violence by proposing the military be used to seize voting machines? During the now-infamous Oval Office meeting, chief of staff Mark Meadows and White House counsel Pat Cipollone protested vehemently, but were there two or more people in agreement to overthrow the government? Was Flynn’s social media campaign a violation of the rule against circulating any printed matter advocating the overthrow of the government?
This is where the current sedition laws begin to seem inadequate to the task of responding to Flynn’s unprecedented proposal.
First, there is the problem of “sedition against what?” Usually, it’s the sitting government, which means that one could make a strong argument that it’s impossible for Trump to be involved in a seditious conspiracy so long as he’s the sitting President. Second, no one has ever been successfully prosecuted under the sedition statutes for exhorting a sitting president to perform an illegal act, with or without the president’s connivance.”
“The First Amendment protects free speech, but in 1969 the Supreme Court held in Brandenburg v. Ohio that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Emphasis mine.)
Martial law is not mentioned in the Constitution. Nor is it authorized by any act of Congress. The Supreme Court has never directly held that the federal government has the power to impose martial law. Although the Insurrection Act allows the president to use armed forces to “suppress” an insurrection and restore immediate law and order upon the request of a state legislature or governor, an 1878 law called the Posse Comitatus Act otherwise forbids the use of the military for domestic law enforcement. A criminal statute puts members of the military who prevent or attempt to interfere with voters “exercising the right of suffrage” at risk of going to prison for up to five years.”