Q: While claiming voter fraud and a rigged election, can President Donald Trump declare martial law?
-CK, Rancho Palos Verdes
AT: While there is no precise definition of martial law, a basis for it exists when “certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement.” Further, the writ of habeas corpus (the right to a trial before imprisonment) may be suspended. Curfews may be set. Bottom line, when civil rule fails, martial law could arguably be declared, but there are checks and balances. President Abraham Lincoln, for example, declared martial law during the Civil War. If Trump made such a declaration because of unproven voter fraud in the election, it would no doubt quickly be challenged in the courts and rejected.
Q: Talking heads on television mention “suspending the Constitution.” Has that happened with any President?
AT: The Suspension Clause of our Constitution makes clear that the privilege of the writ of habeas corpus (as noted above, the right to a trial before imprisonment) shall not be suspended, except in cases of rebellion, or invasion of the public safety that may actually require it. One example was the program during the George W. Bush Administration that involved warrantless wiretapping and torture after the 9/11 terrorist attacks. In my view, asserting the Suspension Clause today because the country’s election system allegedly is rigged would be both out of line and unjustified.
What is the President-elect doing between now and when he’s officially inaugurated? Just Biden his time.
Ron Sokol is a Manhattan Beach attorney with more than 35 years of experience. His column, which appears in print on Wednesdays, presents a summary of the law and should not be construed as legal advice. Email questions and comments to him at [email protected]