A White Paper Prepared for The Election Protection Committee Lawyers for the Rule of Law
In his address to the nation, Donald Trump made clear that he is willing to do whatever is necessary to ensure that Congress remains under his control. His disdain for the truth reflects his knowledge that his followers believe whatever he tells them unquestioningly. And the message he is sending is that extreme measures are needed to prevent foreign actors and unregistered voters from stealing the election.
The Make America Great Again (MAGA) movement is ready to answer the call once again and, like January 6, 2021, is likely to cause civil disturbances at major polling places across the United States on Election Day, giving President Donald Trump a pretext to invoke the Insurrection Act. That would halt voting in numerous jurisdictions until only Trump supporters were willing to brave the polls, or until poll workers grew too frightened to staff them. The Insurrection Act is not martial law; it authorizes troops to enforce the law and does not displace civil government. But a President who does not intend to relinquish power has no reason to withdraw troops once the polls close.
It is not possible to know exactly how the MAGA movement will attempt to disrupt the mid-term elections, or how the Trump administration will use the machinery of the federal government to support those efforts. So it makes sense to prepare for any reasonably foreseeable contingency. And indeed, various organizations have already worked with state and local election officials to prepare for a wide range of election disruption efforts, from intimidation of poll workers to seizure of ballots by the National Guard. But thus far, they have failed to prepare for the course of action that Trump’s supporters are most likely to pursue: civil disturbances at polling places across the nation by non-governmental actors.
The means to accomplish this extraordinary action are already in place. They are:
- Removing the deterrent to violence by immunizing bad actors from punishment by the federal government.
- Concealing the identities of bad actors to prevent prosecution by state authorities.
- Calling for large numbers of MAGA supporters to come out and flood polling places, preventing voting from taking place.
The Capitol Riot as Proof of Concept
On January 6, 2021, tens of thousands of people attended the “Save America” rally at the Capitol Ellipse. Few had any reason to expect that President Donald Trump would ask them to “walk down to the Capitol” “to cheer on our brave senators and congressmen and women.” Consequently, few of these thousands of people expected that early that afternoon they would storm the Capitol and later be prosecuted for offenses ranging from misdemeanors to serious felonies.
This cannot be said of 200-300 Proud Boys who began walking toward the Capitol perimeter in the morning, while others, known as the “Quick Reaction Force,” were stationed at a hotel in Arlington, Virginia, waiting for instructions to ferry firearms across the river. Once the police barricades were breached, the Proud Boys led a surge of protesters across the lawn.
The Oath Keepers arrived later and engaged in more disciplined, military tactics. They employed a “military stack” formation to cut through the crowd and force their way through the great bronze doors that stand at the east entrance to the Capitol Rotunda. They also wore combat helmets, ballistic vests, and tactical gear.
There was damage, people were injured, and one injured police officer died. Then there were prosecutions.
Of the approximately 1,600 people arrested for federal crimes, those who did not engage in violence or destruction of property were convicted of petty offenses or misdemeanors. Others were convicted of felonies, including Assaulting, Resisting, or Impeding Law Enforcement and Obstruction of an Official Proceeding. Eighteen high-ranking members of the Oath Keepers and Proud Boys were prosecuted for Seditious Conspiracy or Assaulting Officers with a Dangerous Weapon.
Sentences ranged from probation for the least culpable to 3.5 years for non-violent felons. The leaders received far more.
| Defendant | Affiliation / Action | Primary Conviction | Sentence |
| Enrique Tarrio | National Chairman, Proud Boys | Seditious Conspiracy | 22 Years |
| David Nicholas Dempsey | Independent Rioter (California) | Assaulting Officers with a Weapon | 20 Years |
| Ethan Nordean | Field Commander, Proud Boys | Seditious Conspiracy | 18 Years |
| Stewart Rhodes | Founder & Leader, Oath Keepers | Seditious Conspiracy | 18 Years |
| Joseph Biggs | Organizer, Proud Boys | Seditious Conspiracy | 17 Years |
The rioters did at least $30 million in damage, but that pales in comparison to the injuries suffered by police officers who tried to hold back the mob. Officer Michael Fanone suffered a traumatic brain injury and heart attack, Officer Daniel Hodges received crush injuries and had an eye gouged, Officer Aquilino Gonell endured a career-ending injury, and Officer Brian Sicknick suffered chemical burns and a fatal stroke.
Violence Without Consequences
On January 20, 2025, President Donald Trump issued a blanket pardon erasing the convictions of all the January 6 defendants with the exception of 14 specific leaders whose sentences were commuted but who were not pardoned.
Watchdog organizations tracking extremist groups over the last few years believe that the number of active armed militia groups currently operating across the United States is rising from the roughly 170 in 2020. Many militia organizations have adopted decentralized, cross-state structures and increasingly rely on online communication, recruitment, and intelligence-sharing networks. Estimates put their membership at between 20,000 and 40,000, with perhaps 200,000 ideological supporters. Those numbers are small, but they do not need to be large. On January 6, a few hundred Proud Boys and Oath Keepers led a crowd of thousands through the police lines. The militias supply the spark. A single gunshot in a tense crowd has repeatedly provoked soldiers into carnage, from the Boston Massacre in 1770 to Amritsar in 1919.
77,303,568 Americans voted for President Trump in the last election. 63% to 68% of Republicans believe the 2020 election was rigged or stolen.
If right-wing social media claims widespread fraud and calls for mass demonstrations, it will not require all that large a percentage of MAGA supporters to come out and cause sufficient chaos to halt elections. The disruption would not need to be particularly violent. It simply needs to be sufficient for the President to invoke the Insurrection Act.
This scenario does not require Congress to refuse to seat members, state legislatures to reject certifications, or courts to rule on curative remedies. Each of those paths requires Trump to rely on institutions he does not trust, and each invites judicial review. Chaos at the polls does neither. Once troops are deployed, the President and the officers who answer to him decide whether, when, and on what conditions voting resumes. Congress and the courts have no role until after the fact.
Why the Supreme Court Would Likely Uphold Trump’s Invocation of Insurrection Act
Sections 251 through 255 of Title 10 of the United States Code, usually referred to as the Insurrection Act, implement the President’s constitutional authority to call forth “the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions.” Section 253 has two parts. The first allows the President to use the military in a state to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that “so hinders the execution of the laws” that any portion of the state’s inhabitants are deprived of a constitutional right and state authorities are unable or unwilling to protect that right. The second permits the President to deploy troops to suppress the same conduct when it “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”
Many authorities believe that these sections can only be invoked in very limited circumstances. A 1964 U.S. Justice Department Memorandum states that the law may only be invoked in three circumstances: (1) when a state requests help in putting down an insurrection; (2) when deployment is needed to enforce a federal court order; or (3) when “state and local law enforcement have completely broken down.” The circumstances posited by this paper fit well within the confines of the last scenario.
Nor would the deployment violate the Posse Comitatus Act. That Act prohibits using the military to execute the laws “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” The Insurrection Act is such an Act of Congress. A valid invocation therefore does not implicate the Posse Comitatus Act.
The statute that does apply is 18 U.S.C. § 592. It makes it a felony, punishable by up to five years in prison, for any officer of the armed forces to order, bring, or keep “any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States.” An officer convicted under the section is disqualified from holding any office under the United States. Unlike the Posse Comitatus Act, Section 592 contains no exception for deployments authorized by an Act of Congress, and whether an invocation of the Insurrection Act can override it has never been tested. But Section 592 is a criminal statute. It depends on a Department of Justice willing to enforce it and a President unwilling to pardon violators. Neither can be assumed.
Finally, President Trump will claim that any determination that such circumstances exist is unreviewable. While many in the academic and legal community dispute this contention, there is one early 19th-century Supreme Court decision that the Administration will rely upon. In Martin v. Mott, the Supreme Court held that “the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.”
Although the Supreme Court has indicated that there may be limitations to the President’s authority where the President exceeds a permitted range of honest judgment, makes an obvious mistake, or acts in a way that is manifestly unauthorized by law, the current Supreme Court can be counted on to find no such limitation where the President finds that state and local law enforcement are insufficient to quell the disturbance.
Moreover, once President Trump has military control over the streets, there is no certainty that he would obey any court. Numerous federal judges and former DOJ attorneys have accused Department leadership of disregarding court orders, ethical obligations, and longstanding prosecutorial norms. While there is some tension between the decision in Mott and the Supreme Court’s decision in Sterling v. Constantin (1932) (permitting a district court to enjoin the Governor of Texas, who had declared martial law to shut down oil production), Sterling is distinguishable. It involved martial law, which displaces civil authority; an Insurrection Act deployment does not. More important, the evidence in Sterling showed that “no insurrection nor riot, in fact, existing at any time in the territory, no closure of the courts, no failure of civil authorities.”
Deterrence Must Come From the States and Reach the Officer Corps
If the chaos is real, a deployment to quell it may be lawful, and the courts are unlikely to stop it. The chaos itself must be prevented. The best deterrent to the scenario posited by this paper is the fear of prosecution by the states. This is a complex problem.
First, the problem is not confined to blue states. Given President Trump’s falling approval ratings, there may be efforts to suppress voting in blue districts in red states where a blue candidate is likely to win, and it cannot be assumed that red-state prosecutors will act. Second, depending upon the size of the protest, local law enforcement may not be able to arrest an appreciable number of individuals, giving others a feeling of strength in numbers.
Third, most of the January 6 defendants were identified by the public from a treasure trove of photographs and videos released by the government, photos they posted of themselves on social media, facial recognition software, or geofence warrants identifying their cell phones. It is likely that those intent on violence will wear masks and coordinate their activities with burner phones to avoid identification.
Prosecutors and state election officials around the country have publicly stated that persons interfering with the elections will be prosecuted to the full extent of the law. But this messaging has been grossly deficient. There is simply no way to know who has “gotten” the message. An all-out effort must be made to ensure that all voters know the consequences of such disruption, both those who would be subject to prosecution and those who would feel more secure in voting if they were aware that the law was on their side.
This can only be accomplished if:
- State and local election authorities send each registered voter an individual mailer informing them in no uncertain terms that persons who violate the law by disrupting polling will be prosecuted and will go to jail.
- In states with mail voting or drop boxes, election officials remind voters that if they feel unsafe going to the polls, they can vote by mail or drop box.
- Where legislation is necessary to permit early voting, voting by mail, or drop boxes in a particular state, that effort be made.
- States ban face masks within 100 feet of a polling place. Most states already bar electioneering within a zone of that size; the Supreme Court upheld Tennessee’s 100-foot zone in Burson v. Freeman, 504 U.S. 191 (1992), and general anti-mask laws have survived First Amendment challenge, see Church of the American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004). A ban confined to that zone, with exemptions for health and religious reasons, rests on the same voter-protection interest.
These measures are aimed at the states. But the officers who would execute a deployment are federal. Bar associations, retired judge advocates, and retired senior officers should publicly remind the officer corps now that under 18 U.S.C. § 592 an officer who orders or brings armed troops to a polling place commits a felony and forfeits the right to hold federal office, that the statute contains no exception for orders from a superior, and that their oath runs to the Constitution, not to the President. An officer who knows in advance that an order is criminal is more likely to refuse it.
Conclusion
It was no surprise when former Attorney General Pamela Jo Bondi began her purge of lawyers at Main Justice and United States Attorneys’ Offices around the country. That had been foretold by Project 2025. It was, however, a surprise that Trump’s Defense Secretary began to replace the senior leadership of the U.S. Military with less experienced officers, presumably with unquestioning loyalty to Trump and not the Constitution. In retrospect it should have been expected. Career prosecutors during the first Trump Administration foiled Trump’s efforts to subvert the election. To disrupt the mid-term elections he will need support from both the Department of Justice and the U.S. Military.
The January 6, 2021, attack on the Capitol demonstrated that all it takes is a mob, a pretty clueless one at that, to paralyze the machinery of our democracy. But the Courts are powerless to stop a mob. And courts have no means to carry out their orders without the assistance of the executive. If January 6 was a proof of concept, it was proof of what a mob can do when the President of the United States ignores pleas to call out the military to restore order. This time, the President could well call out the military to restore order, but it would be a dictator’s order that is restored. The officers who would carry out that order should know, before they receive it, that federal law makes it a crime.