Fact-checking claims about the Insurrection Act, martial law after Capitol riot

Social media users are spreading a variety of claims that President Donald Trump will either impose martial law or invoke the Insurrection Act to prevent Joe Biden from being inaugurated on Jan. 20.

The Insurrection Act is a federal law that empowers the president to deploy the military to suppress certain situations including civil disorder, insurrection or rebellion.

The act has been used to send the armed forces to quell civil disturbances a number of times during U.S. history, according to the Congressional Research Service. It was most recently invoked during the 1992 Los Angeles riots after four white police officers were acquitted in the roadside beating of a Black man, Rodney King, and during Hurricane Hugo in 1989, when widespread looting was reported in St. Croix, in the U.S. Virgin Islands.

Martial law, by contrast, is a concept that doesn’t have a legal definition in the U.S. Many people pushing the theory that Trump will invoke martial law don’t specify what form they expect it to take. However, their descriptions seem to reflect martial law at its most extreme: the suspension of civil authority and military control of civilian functions such as the courts. 

As of this writing, there’s no indication that Trump is planning to invoke the Insurrection Act or impose martial law. Moreover, most of these posts contain information that’s misleading or just plain wrong. 

Some social media posts went so far as to claim that Trump just signed and invoked the act. But there’s no evidence that this is true. 

The Congressional Research Service says that it is legal convention under the act for the president to first issue a proclamation to get the situation under control before using the powers in the federal law. 

"If the President decides to respond to such a situation, generally upon the recommendation of the Attorney General and, if necessary, the request of the governor, he must first issue a proclamation ordering the insurgents to disperse within a limited time," the CRS report says, citing Title 10 of the U.S. Code. "If the situation does not resolve itself, the President may issue an executive order to send in troops."

Trump has not done this, and he signaled in a Jan. 7 speech that he will support the transition to a new administration.

In the videotaped speech, a day after a mob of his supporters stormed the U.S. Capitol, Trump said that he’s focused on "ensuring a smooth, orderly and seamless transition of power" and that "a new administration will be inaugurated on Jan. 20." He also added in a subsequent tweet that he would not be attending the event.

Another theory holds that a 2018 executive order on election interference gives Trump the ability to impose martial law. It doesn’t.

Six scholars of constitutional law and presidential power told PolitiFact that the executive order gives the president the ability to impose economic sanctions on foreign entities who interfere in a U.S. election. 

"How you get from there to imposing martial law, I don’t know. It doesn’t make any sense," said Chris Edelson, an assistant professor of government at American University. 

Any executive order that gave the president the authority to unilaterally invoke martial law would be unconstitutional, the scholars said. 

Other variations of the rumor claim that martial law is "imminent" and that information on a laptop stolen from House Speaker Nancy Pelosi’s office during the riot at the Capitol is the basis for Trump invoking the Insurrection Act. 

A laptop was stolen from a conference room in the Capitol, but Drew Hammill, Pelosi’s spokesman, said that the laptop was only used for presentations. 

Besides Trump alluding to invoking the Insurrection Act at the height of the protests surrounding the death of George Floyd, he has not made any indication that he’s considering invoking the Insurrection Act or any variation of martial law going forward. Some D.C. officials were worried that Trump could invoke the act to seize control of the city’s police department the day of the Capitol riot, but that didn’t happen.

Under Article II of the Constitution, the president has no inherent authority to declare martial law except under the extreme circumstances of a rebellion or foreign invasion, said Noah Feldman, a professor at Harvard Law School. 

"Losing an election doesn’t count as a basis for invoking this power," Feldman added.

In 1866, the Supreme Court ruled that martial law cannot be imposed where civil courts are open and functioning. As a result, one should think of martial law as a state of affairs arising from a total breakdown of civil order, said Stephen Vladeck, a law professor at the University of Texas School of Law and expert in martial law. 

Even if such conditions existed in a part of the U.S., the president would have to get congressional approval to use the military, said Joseph Nunn, a fellow at the Brennan Center for Justice and author of an exhaustive study on martial law in America. ​