Lawfare Daily: The Military, Elections, and the Law

[Intro]

Natalie Orpett: This law has been on the books since 1865, and Congress has only made it stronger and more restrictive of military involvement in elections over the course of time. It has never gone away. It has never been questioned, and so it really reflects a significant value of Congress that has stayed constant.

Benjamin Wittes: It's The Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare, with Lawfare executive editor, Natalie Orpett, and senior editors, Molly Roberts and Loren Voss.

Loren Voss: So if there was an attack underway, an attack occurred in some way, there's an inherent constitutional power to respond to that, and the argument would be, "Okay, yes, there's statutory limitations on specific things, but this is an inherent constitutional power because I must take action to protect America."

Benjamin Wittes: Today we're talking troops at the polls. Can the president deploy them? What can he do with them? What kind of mischief can they make? And what laws restrict the president's power to make you show your ID to a guy with a gun?

[Main Podcast]

All right, Molly, I wanna start with you. Why on earth would we be writing about and talking about the rather esoteric question of when and under what circumstances a president can and cannot use the military in connection with U.S. federal elections? It seems like a wholly theoretical kind of question of the sort that Lawfare doesn't usually engage.

Molly Roberts: Right. It's not just that it's esoteric, I think it's also that it just seems kind of like a crazy thing that this could happen, that's not just something that we contemplate, something that we imagine easily.

Benjamin Wittes: Right. We usually don't just make up crazed scenarios and then write about them as though they're likely to happen. Is there some reason we're treating this as the sort of thing that you would write detailed legal articles about?

Molly Roberts: I hope there's some reason. I'll see if I can convince you. So one reason, I think, is that the administration, members of the administration, and people adjacent to allies of the administration have been talking about using troops in elections. So President Trump has said that he regrets not ordering the National Guard to seize voting machines after 2020. Steve Bannon has talked about calling up various divisions of the Airborne. I think Pete Hegseth has not been super forthcoming when asked, because people are worried about this, whether he would refuse an order to deploy troops.

So all these things are happening. Democrats in Congress are a little worried about it, too. They've tried to propose bills. Republicans have blocked the bills. We're not the only ones thinking about this, and what's really important as well is that this isn't just a matter of rhetoric. There's concrete stuff that's happening that suggests that the administration might be interested in exploring these authorities. Namely, there've been a lot of domestic deployments. The National Guard is in American cities. There's litigation going on involving the extent of the powers the president has to do that.

So I think you combine that with indications that this administration is interested in messing about with elections in other ways, right? So, we know about the investigations in Fulton County, Maricopa. We're aware of the declassifying of various intelligence documents to discuss the possibility that the last election was stolen, all that kind of stuff. If you put that together with what looks sort of like trial balloons in the form of these deployments, I think there is real reason to be concerned.

Benjamin Wittes: All right. You had me at the president said he regrets not doing it last time. What do we know, before we get into the legalities of what they can do, of what they're actually contemplating doing?  And there are many ways to use federal troops in connection with elections. Federal troops can keep people away from the ballots. Federal troops could theoretically count ballots. They could give people rides to the polls. They could, you know, shoot people who weren't allowed to be there. When you say, "I, I regret not having called out troops before," what do we know about what, to the extent this is being actively thought about, what the troops would be for?

Molly Roberts: So the specific comment that President Trump made about not ordering the National Guard to involve itself after the 2020 elections had to do with seizing voting machines, and the idea there was that he should declare a national emergency on the pretext of there having been foreign interference in the election, and then go get the voting machines to check that out.

So that's one possibility, but I don't think that's the only way we should be thinking of this happening. I think that there's a whole range of ways this could play out, and some of them seem more innocuous than others. Some of them seem more insidious. I don't think any of them is entirely innocuous, and as we'll hear about in this conversation I don't think any of them is, or very few of them are entirely legal.

But, you know, one would just be having troops near but not at polling places. That's sort of the least scary version. There was some election support from the National Guard during COVID. All of this is a lot easier when a state's governor asks for it, as I'm sure we'll go into. But, you know, still, that could intimidate people, discourage them from voting. Then there's troops at polling places, which is like that but worse. And there's the seizing of equipment and ballots, which I just talked about.

And then I guess there's the question of… What does any of that achieve? And again, some of it would maybe just be discouraging people so that the vote didn't really reflect what all the people eligible to vote thought. But another possibility, and this goes to the sort of seizing of equipment and ballots specifically, is if machines are damaged, say, or if the chain of custody is broken on ballots, that could lead to a whole mess of issues involving certification. It could make it easier to contest who won. There's the possibility that there'd need to be a new election held in various jurisdictions. So there are a lot of ways that it could play out, and there are a lot of downstream effects that could have.

Benjamin Wittes: All right, let's talk about the law. I thought, being a simple-minded person who, you know, just read the Constitution and stuff, that off-year elections, mid-cycle elections, were state-run affairs, and knowing most states, you know, have county election boards that run the elections locally, and nowhere in there does anything say anything about federal troops.

So I wanna start with the question: What positive authority does the federal government have to, leave aside for a moment any restrictions on that authority, to run or get involved in state-level elections with federal forces?

Natalie Orpett: Yeah, so you are not wrong that the Constitution, in fact, does have an elections clause that, that puts states in charge of effectively administering elections. It's actually not as broad in language as you might think. Other part of the Constitution also indicates that Congress can play some very limited role, but you are correct that there is nothing in the Constitution that suggests that the president plays any role whatsoever in elections.

So, we're not actually looking at positive authority, certainly not in the Constitution, for the president to do anything with the military for elections or to do anything for elections generally. But what we are looking at in our pieces is the positive authorities that the president has under the Constitution to do things, and particularly to do things with the military where the effect might be that it has an influence on the elections, but where one might argue that any effect that something might have on the elections is incidental and effectively that there aren't enough things protecting elections, that those can overcome the president's broad authorities elsewhere to use the military.

Benjamin Wittes: All right, so, help me out, because I understand that the president can deploy the military to quell civil unrest or to, you know, subject to the limitations of the Posse Comitatus Act, you know, with certain requests of governors and stuff. I, I get that.

But now we have an election in which nobody's, you know, scheduled civil unrest, right? No one's, we haven't scheduled a rebellion or an insurrection. We've just scheduled an election. What right does the president have to do anything that, that would involve putting troops in the way of that?

Natalie Orpett: So the problem is really that the definitions of the president's authorities to use the military are not particularly well-defined. You're correct that the Posse Comitatus Act puts a limitation on using the military for law enforcement under most circumstances. The Insurrection Act provides a, an exception to that under certain circumstances, though it does require some sort of, as you were indicating, some sort of rebellion or unrest that rises to a certain level.

But again, part of the problem is not only that the authorities the president has with respect to the military are quite broadly worded, it's also sort of the, the practical effect of what this would look like. So, if the president chooses to exercise authorities to deploy the military, and we've seen this in case law, and we see that, this happening right now, the reality is that the troops go out, there is a legal challenge to them perhaps, and the question then needs to be litigated.

In the meantime, because of the way that jurisprudence in this area has worked out, courts give a tremendous amount of deference to the president in making a determination about whether the standards have been met under whatever relevant statute to employ one of these sort of loopholes or exceptions. And so the, the troops are there and they remain on the ground, and that's in fact what we're seeing in several cities in the United States right now, not in connection with elections, but the same legal parameters are at work there.

Loren Voss: Yeah, I mean, to, to add to that, the deployment in California originally of the Marines and National Guard and then just the National Guard, started in June of last year, and then to get to the Supreme Court at a decision on that was December, right? And so it took that long before the troops were pulled back.

And so when we look at this, you know, these different languages, they are quite broad. It's not just insurrection or rebellion. And remember, the administration did claim there was a threat of rebellion in Chicago. That was one of the, the claims that was made.

Benjamin Wittes: Those Chicagoans.

Loren Voss: So, you know, and the language is more broad than rebellion, not just an Insurrection Act, right? Like, you have the ability to do it if there's impractical to enforce the law, you have these types of things, and then we haven't even gotten to Title 32 502F, in which the federal government is currently arguing allows them to do any such mission as the president or SecDef determines, right?

And so we're not arguing there's a permissive authority specific to elections, but there are some broad authorities out there that could be, that could at least be put on the table. And then as we see from the California litigation in, and the Chicago litigation and the Portland, you know, Oregon litigation, it can take six months for this to funnel up to the Supreme Court and get a final decision.

Benjamin Wittes: All right, so let's figure out, let's sketch the parameters of the law here. As a preliminary matter, what protections are there to keep federal troops out of elections? This seems like, like stuff that we would have dealt with in the Reconstruction Era, albeit for all the wrong reasons. Southern states wanted to keep federal troops out to prevent them from facilitating freed men voting, and eventually they won. How much of our existing regulatory framework for this stuff comes from that?

Loren Voss: Yeah, you're actually a couple years off in that most of this actually started during the Civil War. So our first law is from 1865, and this was actually based not off of what was happening in the South, but in the border states.

Benjamin Wittes: Interesting.

Loren Voss: Specifically slave states that were part of the Union, so Missouri, Kentucky, Maryland, and Delaware. And you had a senator from Kentucky Powell, bring forward this bill that went through these examples and said, you know, "This is what we've seen in these places."

So in Missouri, there was, you know, anyone who was in acting against the US government could not vote, right? And there was an ordinance that said that, but the military was enforcing it, and you can imagine how they might determine who had acted against the U.S. government. In Kentucky they said no disloyal people could vote, and the military was enforcing that. They act-

Benjamin Wittes: That sounds like a good law to me. I actually like that one.

Loren Voss: Well, they commanded the military to aid in “the purity of suffrage.” Right? So, you, you can imagine the types of troubles that this, this reached to, and they said-

Benjamin Wittes: Yeah, not prone to abuse at all, that one.

Loren Voss: There is a, a great discussion in the, the military committee that was asked to review this law in the Senate where they said, "Well, you know, the military's not asking whether or not these individuals have rights under Kentucky law, but they're enemies of the United States, so, you know, it doesn't matter. They're under military authority."

And so in Kentucky you saw this as well where they were, you know, literally stopping people from being able to vote. They actually gave orders to strike certain candidates from the books at certain polling locations. And then in Maryland you actually had physical presence around the polls. So you have all of these things occurring in these border states.

Benjamin Wittes: And these were just direct federal troops intervening in state level elections.

Loren Voss: Yeah, so to be fair, there was martial law in those states in various forms except for, I don't believe Delaware had martial law, but there was troop deployments. But the other states were literally under martial law because while Union states, there were a lot of Southern sympathizers, troops, you know, support going on there. So martial law had actually been declared in those states in the, you know, the year or two prior.

So the senator brings forward a bill, and today it's in a couple different provisions. One is 18 U.S.C. 592, named Troops at Polls. But I will flag for everyone it's not just about troops, right? So anyone who is an “officer of the Army or Navy,” 'cause that's all we had at the time, right, “or other person in the civil, military, or naval service of the United States either orders, brings, keeps, or has under his authority or control troops or armed men” at a location where an election is to be held, gets fined, can be imprisoned for up to five years, and is also disqualified from holding any office under the United States. And that's 592. There's three provisions, and so you can kind of see how that's based on the examples I just gave you in those border states.

Then we have 593, which is the interference one, right? Which is the idea that you cannot “prescribe or fix” the qualifications of voters. So you can't say no disloyal people can vote, for example. And you cannot force, threat, or intimidate any qualified voter from exercising their right. And then there's another section within 593 which talks about, you know, compelling or having effects on election officers, right? To not receive votes, to make different regulations, to stop the discharge of their duties, those types of things. So it's actually-

Benjamin Wittes: What about seizing voting machines? I mean, there were no voting machines then, but is there anything in that statute that if you were to send troops to seize a voting machine from an election official that that would meet the statutory elements of that offense?

Loren Voss: Yeah, I mean, I would call it interfering “in any manner with an election officer's discharge of his duties,” right? Like, there's some pretty-

Benjamin Wittes: Yeah

Loren Voss: Vague language in here that I think that would absolutely meet. And so I think that these are, are pretty decent. There's also a civil provision that comes from this time period. It's now codified as 52 U.S.C. 10102, which is that “no officer of the Army, Navy, or Air Force shall prescribe … fix,” you know, any “qualifications of voters” or “in any manner interfere with the freedom of any election” in a state, right? And so there's that civil provision as well.

Benjamin Wittes: So the, you're making me feel pretty good here. You got a, it's a, you got a criminal statute that basically says you can't interfere with voters, you can't prevent people who are qualified under state law from voting from voting, and you can't interfere with the election workers using federal troops.

Loren Voss: Right, and that catchall of, like, you just can't have troops or armed men at the election site generally.

Benjamin Wittes: Right. Now, at, at is a complicated thing, 'cause what if they take one step away, but we're gonna come to that in a minute. I'm so far, like, I'm feeling pretty good about this. It seems like, like, you know, the, the pre-Reconstruction Era, the Civil War Era Congress prepared us pretty well for, for Donald Trump. What am I missing?

Natalie Orpett: So I'll say one more thing to make you feel good before we start to make you feel bad.

Benjamin Wittes: I like feeling good.

Natalie Orpett: Sorry to disappoint. There's a part two to this. The, the other thing to just emphasize is Loren is correct, the, this 1865 law is now codified in three different statutes. The other point to make though is that this law has been on the books since 1865, and Congress has only made it stronger and more restrictive of military involvement in elections over the course of time. It has never gone away. It has never been questioned, and so it really reflects a significant value of Congress that has stayed constant through turbulent times in American elections, let us say.

Loren Voss: Yeah, I mean, I think it's important actually to, to trace that through and say there was two exceptions in the law in 1865. One for, you know, if it's necessary to repel armed enemies of the United States, and then the other one was, or “to keep the peace at the polls.” And, you know, you can understand those, those exceptions to be quite narrow, but that “to keep the peace at the polls” was removed. And so now the only exception within this statute is t- when it's necessary to repel armed enemies of the United States

Molly Roberts: And if I can add one thing as well, I think something important that we go into in the piece is that it's not just that history shows that Congress created protections for elections. It's that history shows that Congress created protections against domestic deployments. And I mean, not entirely, but generally. But it really, really, really cared about elections, and it wanted the election-specific restrictions to be even more robust than the general restrictions. And that's what we see with this 1865 law, too, and then Congress kind of bringing it back, re-codifying it after the Reconstruction period is, they passed the Posse Comitatus Act, which is kind of, you know, the key text when it comes to domestic deployments, but then on top of that they do this to suggest we're adding another layer here.

Natalie Orpett: Right. So the other que- sort of asterisk to what we've been saying is there actually was a brief period during Reconstruction where there was some tension between the laws. And this is in the broader context, I think it's important to say, of, you know, post-conflict, post-Civil War, “how on God's green Earth are we going to make this a coherent nation again” project of Reconstruction?

But what happened is that Congress passed the Reconstruction Act, which established military zones in former Southern states, and as part of that and military officials were given the authority to do large swaths of what we consider civilian law enforcement now and governance tasks. And as part of that and also two of the three enforcement acts that were passed in the early 1870s, there actually were under those statutes specific provisions instructing the military to do things around elections.

That was while the 1865 law that we have been talking about was still on the books, and so there are some scholars that point to that tension and say, you know, maybe we shouldn't understand the 1865 law to be quite as broad as some people might read it. I think it's fair to say that that does not stand up as a legal argument, in my mind at least, and it is more reflective of this transitional period between the end of the Civil War and the return to civilian control of Southern states that had seceded because there was literally a handover going on from Union troops who were responsible for governance and effectively imposing some form of martial law until that transition could happen to civilian control when the Southern states rejoined the Union after passing the 14th Amendment.

Benjamin Wittes: All right. So, seems like the good news is pretty good It seems like Donald Trump can't screw up the elections using federal troops, but I have this sense that what Molly and Loren and Natalie giveth with one hand, they taketh away with the other hand. And so what is the flip side of this coin, and what are the many ways in which, despite this visionary fabric of law to keep federal troops out of elections, we are at risk of having them in there anyway?

Molly Roberts: I guess the really broad way to answer that is that, okay, so the question is, are these existing rules enough? Because, while there are a lot of restrictions on domestic military use for elections that we went through, there are also laws that affirmatively allow domestic deployments under specific sets of circumstances, although maybe not all that specific.

Some of them aren't as well-defined as one might wish, and could be interpreted by an eager executive. And, you know, as I was saying at the top of this episode, this executive seems at least some degree of eager in a way that's fairly permissive. And the range of authorities the president might cite go from statutory to constitutional, and I guess Natalie and Loren can probably talk in more detail about all of those.

Benjamin Wittes: Yeah, so, like, what can he certainly do? Let's start with that, things that, you know, like, okay, you can't station troops at polls, but you can do blank.

Natalie Orpett: Right. So I think the most common one that everyone has been made aware of is the Insurrection Act, which is a very broad statute that allows the president, if he follows the correct procedures, which is basically declare an emergency and then go take care of it with the military.

It's very broad, and it is not at all clear, 'cause it's never been tested, how the Insurrection Act would come into conflict with this election protective statute. But we know generally that there's reason to be concerned because courts, as I said before, really defer to the executive on judgments of when the military is necessary for emergencies, particularly if the United States is under some sort of threat from armed forces.

And I think that that discussion has been out there in the ether and people are sort of familiar with it. There was a lot of discussion of, you know, the “break glass” moment being if Trump were to invoke the Insurrection Act, that's the real thing to be scared about.

One of the things that we actually wanted to accomplish with this article was to make clear that the Insurrection Act is, in fact, not the only mechanism by which the president could deploy troops in connection with elections. And I think really probably not even the best candidate, including because it's in the public consciousness as a thing that would be really scary and dramatic, the more sort of low-hanging fruit way of doing it, perhaps, is to utilize these authorities that the president has under statute which are relating to the National Guard.

And we touched on this a little bit earlier, but the fact is that we've seen some of this happening. We've been following, especially at Lawfare, we have been following domestic deployments of the National Guard in their somewhat federalized, but asterisk, I'll come back to that in a second, capacity to American cities. And that is a way to get, to get boots on the ground of the military. And those authorities, which we can go into in much more depth, leave a lot of reason to think that they could be invoked.

We've already seen the president invoking them for a variety of purposes, and there are two different ones. I'm gonna let Loren speak to them in, in greater depth because she is the real expert here. But there are two different sort of general categories. One is Title 32, one is Title 10. These are two different statuses that National Guard are under.

So, one thing that is a bit of a, a pet issue for me is I think oftentimes we don't think of the National Guard as the military in the sense of being as concerned about whether the National Guard is, you know, roaming the streets as we would be if it were, you know, Marines or the Army or the Air Force. I'm not quite sure why that is, because they're demonstrably the military, but it may be in part because the National Guard are state militias, and they are not federal troops unless and until the president uses one of these two sets of authorities.

So Title 32 is an authority where the National Guard remain under the command and control of their state governor, which is the default for National Guard, but they are paid by and to some degree directed as to mission by the federal government. This presents a lot of complications actually. It sounds a little more innocuous because the governor retains command and control technically, but Loren can explain in more detail why this is actually a really tricky authority.

Title 10, just to finish the list, is fully federalizing the National Guard. That is something the president has the authority to do under limited circumstances. Effectively, the, the origin of it is to make sure that the National Guard can also serve as a reserve force for the regular military.

Loren Voss: Yeah. So let's run through some of these for a second, starting with the statutory ones. Insurrection Act, just because that's everyone's favorite one to talk about. One of the reasons we think it's important to think about the Insurrection Act and how that interacts with 592, the so-called troops at polls statute, is because OLC wrote a one-and-a-half-page memo back in 1968 saying they've looked at 592, they don't think it applies to the president, and you could use the Insurrection Act to, to have troops at polling locations in, in specific circumstances. That opinion doesn't really give any legal analysis. It's a page and a half. But it, it basically says, you know, we don't think it meant to apply to the president himself.

We did our homework. The actual introducer of the bill of 592 back in, in 1864 when the bill was introduced gave a speech and basically said it applies to the president. He, you know, said, "Whoever he may be, maybe he, you know, he be president or general, if he should, you know, interfere with our right to vote he shall be the enemy of the United States and he should be punished." I'm paraphrasing, right? So but this is the type of language that goes around it.

We also have, you know, a couple different other pieces after that. Congress did try in 1879 a couple times to modify 592 and make it stricter, and so they wanted to remove that “to keep the peace” language which they eventually did in 1909, and during that time when they tried to remove it, President Hayes actually vetoed that removal, twice, because he actually wrote about how he thought it would take away his power to use the predecessors to the Insurrection Act by saying, you know, that the only exception is armed enemies of the United States, that he wouldn't be able to overcome this. So, you know, we think that there's a very strong argument that the, the Insurrection Act does not overcome these limitations. It cannot be used in these circumstances.

Then, you know, we were talking about Title 32 502F which is, as, you know, Natalie outlined, this hybrid status, so the National Guard is still in state militia status even though it's a federal mission. And so by the language of 592 and 593, they are not a part of the Army or Navy at that point. However, one of the reasons why I read you the language earlier is because it says “whoever,” for 592, “is a part of the civil, military, or naval service of the United States and orders these things to happen.” The argument would be that the SecDef or the president who ordered these to happen would still be in violation of 592 because they have brought armed men or troops to the polls even if those are not members of the military. So it seems like under 502F it would still potentially be a violation, but just, you know, pointing out that this administration has really argued that 502F has no mission limitations. And so that argument might still be made even though we don't think that, you know, it can easily be overcome.

On the Title 10 side of the house, it's kind of interesting, you know, besides the Insurrection Act, what else you could use. 12406, we've talked about extensively, right? That was what was used in California, Oregon, Chicago. We think, you know, the third provision of that when the president's unable with regular forces to execute the laws seems to be fairly closed off at this point, right? We f- we found that that doesn't get around the Posse Comitatus Act according to the Supreme Court. There are other provisions under 12406, right? Which we talked about, you know, threat of rebellion. It doesn't seem though that, like, that very vague text would also overcome 592.

Benjamin Wittes: So, before we turn to the heaviest hitting authorities, which are of course broad claims of inherent constitutional power, are there any other statutory loopholes or, you know, camels through the eye of a needle situations that we should be aware of?

Natalie Orpett: I think Loren hit the broad categories. There are a couple of other things I wanted to add on those, though, just to sort of emphasize the way in which they could be used really broadly.

So Title 32, Loren was explaining, although the president and the secretary of defense and any other federal officer would be liable for violating 592, be- which is a criminal statute that prohibits federal officials from doing the list of things, the National Guard that are in Title 32 status are not considered federal officers or federal actors. At least that's the consensus of most scholars. I don't believe it's actually ever been adjudicated in court, but I could be wrong about that.

Benjamin Wittes: And just to be clear, that's because they have, unless they are federalized, they are state instruments.

Natalie Orpett: Correct. So in that sense, the Posse Comitatus Act that forbids the federal military from performing law enforcement acts actually doesn't apply to any National Guard who are in state militia status under Title 32.

And what that means is that although Loren is right that the president, the secretary of defense, whoever else in the chain of command on the federal side would be liable under this criminal statute, and that of course is setting aside the, the possibility that the president could pardon any such criminal violations and/or the fact that, in order to prosecute violations of federal law, you have to have a Justice Department that wants to do that.

The, the fact is that the loophole there might be that, for example, one could claim that the order came from a governor, not from the president. I think that would be dubious under the statute, given that the mission authority is for the president or for the federal government, I should say, at that point.

But you can see various ways in which mischief could be attempted there, and there is a bit of an inherent loophole to the fact that the Posse Comitatus Act doesn't apply by its terms, and therefore even things that are just, just look like straight-up law enforcement, like crowd control or whatever, technically wouldn't apply to these National Guard members operating in that status.

Benjamin Wittes: All right, let's turn to the mother of all authorities, as Saddam Hussein might say, which is the authority to say, "You know, to hell with these piddly Civil War era statutes and their lineal descendants. Anything that interferes with my ability to defend the country, as I understand “defend” and “the country” interferes with my inherent Article II authority to be me, and I think we need troops to surround all the polling stations and only give voters ballots who are my supporters.

Loren, what stops a broad claim of inherent constitutional authority from trumping, pun intended, all of these piddly statutory constraints that make me feel good?

Loren Voss: I'll say, like, let's modify your hypothetical a little bit. You can't say, "I am using the military to only allow my supporters to vote." You have to say, "I am using the military to deal with some threat, and somehow the only voters who are threat-"

Benjamin Wittes: Right, Antifa's gonna attack the polls and so we have to keep all the bad people out, and only the US military armed to the teeth can do that, and so I'm deploying etc., etc.

Loren Voss: Yeah, I mean, and so one of the things that we saw come up in California and in Chicago was for the mission justification for those military deployments was the protective power, right? And so this is that, like, mythical inherent Article II power, 'cause it's not written, but that you can use the military if the goal is to protect federal property, federal persons, and federal functions.

And then, you know, as Natalie started us off, but, you know, elections aren't federal, right? They're state controlled. But, I mean, these elections will be for federal offices, and in, you know, 2017, DHS did designate all election infrastructure that supports federal elections as U.S. critical infrastructure. So there is some tie to try to say that, like, this has some federal purpose, federal function going on here.

That inherent power is not really clear on what it is. The Supreme Court did write on it a bit in, in the Chicago case to say that it does not overcome posse comitatus, but that does not limit it from being used to do various other things that aren't technically enforcing the law, right? And we just don't have a lot of case law specific on, on the protective power and what those limitations might be.

We also just, you know, have the idea of the, the commander-in-chief power under Article II, right? And you can, you can tie this to the idea of there's a pretty widely accepted view that if there has been an attack on the United States, the president has the ability to use the military to respond to that threat, right? And so there is a question on what that threat might be in this scenario, but I think that's a pretty widely accepted view. So if there was an attack underway, an attack occurred in some way, there's an inherent constitutional power to respond to that, and the argument would be, "Okay, yes, there's statutory limitations on specific things, but this is an inherent constitutional power because I must take action to protect America," right?

And that is an argument that then becomes very factual on, like, what actually was the threat, right? Did a threat indeed exist? Did an attack indeed exist? And, and you go down this rabbit hole, as we've talked before, of trying to prove the facts and how much deference the president has in those circumstances.

I think, you know, there's also been some, some claims to, you know, the take care clause and how those might interact more broadly. I mean, it as a justification for the protective power, but maybe even more broadly than the protective power, especially when it comes to elections and what that means for the country.

So these are, you know, more nebulous powers where the exact bounds haven't exactly been defined, but, you know, do have limitations that have to do with, with protecting either federal functions or the security of the United States. So there has to at least be some type of justification to make that happen.

Benjamin Wittes: All right. Molly, how plausible is all of this? I mean, it seems like you could certainly get away with some degree of deployment in and around areas in which there were polling for some limited set of purposes, or, if you were lucky enough to have Antifa blow something up in real time, to defend everything.

But there are actual limits to what the people could do. And so at the end of the day, does this seem like a useful, to you anyway, if you were Trump, does it seem like a useful thing to do a la deploying the National Guard all over D.C. so they can stand around picking up garbage or, or planting flowers? Or is it something that you think realistically the regime is permissive enough that it's gonna be attractive to do a lot more than that? What, what did you come away from this? I, I'm curious for each of your reactions, what did you come away from this thinking the balance of the law encourages?

Molly Roberts: Yeah, I came away from this thinking that the balance of the law encourages not messing with elections, but that that really does assume good faith on the part of the executive. Because again, as Natalie mentioned, the problem here is that to a certain extent it doesn't matter what the law says, it doesn't matter what the courts eventually say, the president practically can do a lot of these things.

Benjamin Wittes: At least until the courts eventually say it was illegal.

Molly Roberts: At least until the courts eventually say no, but that's gonna take a while. I mean, how long is it gonna take to challenge it? How long is it gonna take to ultimately have it decided? I, it can be quite a while, and the damage can be done, particularly if it's just a matter of deploying troops in a way that's going to intimidate people. And also, if it's going to create irregularities in the election, that would be challengeable and then could lead to issues certifying or could invite more litigation about the fact that it wasn't a legitimate election.

So I think there's a real threat regardless of what the law says, and that's sort of the problem here. And specifically, I'm really concerned by how interested the administration seems in pursuing these conspiracy theories about foreign interference. I think that the most dramatic version of this is the version where the president sends in the troops to take over election infrastructure, basically.

And this kind of goes along with the Article II claim that Loren was talking about at the end here, the idea of claiming there's an attack against the United States and saying, "Well, I need to do this to protect against foreign interference, against a cyber attack, and any impact it has on elections, well, that's just incidental. That's not my purpose. I'm doing the military purpose of protecting the United States." But it will have a huge impact on elections.

Again, that's the scariest version. I'm not saying it's going to happen, but I think that it's possible, and I think that everything ranging from that to the sort of less dramatic but still really damaging stuff is possible, too, even if the law doesn't want it to be.

Benjamin Wittes: Natalie, did you come away more persuaded by the good news here or more persuaded by the bad news? Are you a cup-half-full person or a cup half empty?

Natalie Orpett: You know the answer to that question, Benjamin. I feel relatively pessimistic about the ability of the law to meaningfully restrict to the point that we shouldn't be worried about the possibility of the military being used for elections this year or in 2028.

I do think that the work that we did on explaining the 1865 law and its descendants in the form of 592, 593, and 10102 was important because those are really little-known laws, and they are actually very meaningful, not only because of how long they've been on the books, but because they, like the Posse Comitatus Act actually, are just criminal statutes.

But it does have an impact, and it is meaningful, and history shows that it is more powerful than one might think based on how little known those statutes are in sort of the, the popular discourse. And that's true even with respect to the many conversations that people have been having about being concerned that Trump might invoke the Insurrection Act around elections to somehow interfere

But I also think, you know, to return to my pessimism, the administration has shown a real willingness, and, I think we can say, a real delight in pushing for the most maximalist interpretations of executive authority, including and especially on constitutional authorities. And so if you're going to buy into the most maximalist interpretations of constitutional authorities, these statutes are completely irrelevant because they're unconstitutional.

And I think the likelihood that that prevails in court is very unlikely or is very little. But I also think, as we've stressed many times on this, that the way this would play out is that troops would be deployed and there might be legal challenges. And if litigants are lucky, they might be able to secure interim relief in the form of preliminary injunctions that order the president to withdraw the troops. But it's pretty likely, I think, that they wouldn't be able to get interim relief because of the amount of deference that is given to the executive in making determinations about whether to deploy troops.

So I worry, as Molly was explaining, that there are all sorts of follow-on impacts that might come from military being deployed for elections, and it could be things like intimidating voters so they don't go to polling sites because there are armed people standing there outside the doors and they look scary.

But it could also be that the military does seize voting machines afterwards and, you know, two days later a court orders them to give them back, but by then there's so much rhetoric around how everyone should be suspicious of tampering or, "Look, something must have been wrong for the troops to have taken these voting machines. We can't have faith in the integrity of these elections." And that's another type of an interference that maybe people aren't thinking about for the military because it's, it's not, you know, people with guns shooting them at people, but it is a way that could have a really, really significant impact negatively, obviously, on the elections.

Benjamin Wittes: Loren, you get the last word. Are you more encouraged by the good news or more worried by the bad news?

Loren Voss: I mean, I think I'm more worried by the bad news, depending on the actor, right? Like, as a, as a veteran, you know, I always want there to be an exception for, you know, to defend the United States, and I think that's a good thing, right? And we want to have the ability to use the military domestically when the president needs to, to defend the country.

But even when 592 has an exception for armed enemies of the United States, like, it, it depends on how you define these terms and how you justify them. And as Natalie said, you know, if you misuse these exceptions and you misuse constitutional power, the amount of deference given means that a lot can happen. And elections are short. You know? They're a, they're a day in person and then, you know, s- so long, you know, a week or so counting after. And, you know, that timing really, really matters.

And we didn't even get into the fact of what all this means that potentially, you know, a governors could do under state active duty. Like, there's a lot of exceptions here that I think should make people nervous. Like, we want, we wanna have exceptions to defend the country, but you have to have good people interpreting those exceptions and knowing when to use them and when not to.

Benjamin Wittes: Folks, you can read these two pieces by yourselves on your own. One, the first one, is the good news. The second one is the bad news. And you can make your own decision whether you are more encouraged by the good news or more worried by the bad news. Natalie Orpett, Molly Roberts, Loren Voss, thank you all for joining us today.

Loren Voss: Thank you.

Molly Roberts: Thank you.

[Outro]

Benjamin Wittes: The Lawfare Podcast is produced by the Lawfare Institute. You can get ad-free versions of this and other Lawfare podcasts by becoming a material supporter of Lawfare at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters. The podcast is edited by Jen Patja, and our theme music is from Alibi Music. As always, thanks for listening.