Retired Gen. Michael Flynn embraced an extreme call this week for President Donald Trump to declare martial law to hold a new presidential election. In a tweet, Flynn appeared to endorse a call from We the People Convention to declare martial law. He added “Freedom never kneels except for God.” As someone who long criticized Flynn’s prosecution as abusive, his association is deeply disappointing. While it does not alter the view of the prosecution, it will alter the view of Flynn to support such a call.
Flynn rightfully demanded review of his charges and his treatment by the court was irregular and improper in my view. The refusal to dismiss his case led to a presidential pardon.
Some of us have encouraged courts to review the voting allegations of the Trump campaign and I have specifically encouraged Democrats to support such scrutiny to help resolve the widespread view of this election as flawed. I believe the failure to do so was a failure of leadership by Biden. However, dozens of lawsuits have been reviewed by the courts and rejected. This includes rulings by Trump appointees and conservative judges.
Ordinarily, I do not put much stake in retweets, which often occur quickly and without much thought. However, the large headline of the original tweet prominently refers to martial law. It is hard to miss. If he did not read the headline and does not support the call, he should immediately issue a correction.
The call for martial law is an invitation for virtual civil war. It is also a rejection of our judicial system that has continued to function as intended by the Framers. Federal judges have rejected these lawsuits for legal errors and lack of evidentiary foundation. The campaign has appealed many of these rulings and lost.
In a full-page Washington Times ad from We the People Convention, Ohio Tea Party leader Tom Zawistowski draws a comparison between Lincoln trying to save the union in 1863 and the need for Trump to declare martial law to stop “Democrat/Socialist federal officials plotting to finish gutting the U.S. Constitution.”
The reference to Lincoln is bitterly ironic. Lincoln has long been criticized for his unconstitutional action to unilaterally suspend habeas corpus.
Article 1, Section 9 of the U.S. Constitution states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” That decision rests in Article 1 with Congress, not the President. Moreover, this is not a case of rebellion or invasion. This is a contested election. If a president could unilaterally declare martial law over his own election, it would not be an invitation to tyranny, it would be tyranny itself.
As for Congress, there is no chance that such a declaration would garner the support of both houses, including many Republicans.
The danger is not such Congress would approve such a move, but that such extreme calls are fueling the growing tension in this nation. For a former National Security Adviser to embrace such a call is chilling and reckless.
[Parts of this posting were updated]
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