No, Flynn’s Martial Law Plot Isn’t Sedition. But It’s Not Necessarily Legal Either.

Last Friday, Donald Trump reportedly held an Oval Office meeting that included his personal lawyer Rudy Giuliani, ousted campaign lawyer Sidney Powell and her client, former national security adviser Michael Flynn (who pleaded guilty to lying to the FBI in connection with special counsel Robert Mueller’s probe but was later pardoned by Trump). Flynn had recently appeared on the far-right outlet Newsmax suggesting that Trump could order “military capabilities” to “rerun an election” in swing states, and that “[m]artial law has been instituted 64 times.” Meanwhile, Arizona GOP Chair Kelli Ward urged Trump to “Cross the Rubicon” and impose martial law to claim an election that the Electoral College, not to mention several dozen court rulings, has now certified he lost.

Public reaction to Flynn’s “coup” proposal — which he’d shared previously through a press release on Twitter from the right-wing group “We The People” (tagline: “Freedom never kneels except for God”) — have been furious and damning. They include calls for Trump’s impeachment, claims of treason and charges of criminal sedition.

With less than a month until President-elect Joe Biden is sworn in, impeachment seems unlikely even if it might be richly deserved. Treason entails levying war or giving aid to “Enemies” of the United States, so it doesn’t apply here. Sedition, which involves overt conduct aimed at subverting the government, might seem like a better legal fit.

There’s a buffet of sedition statutes (18 U.S.C., sections 2383 through 2385) which have some potential relevance here. Section 2383 makes it a crime to incite or assist in a rebellion against the United States or give comfort to those who incite an insurrection. Section 2384 carries a 20-year jail term for seditious conspiracy, which requires an agreement between two or more people to “overthrow, put down, or to destroy by force the Government of the United States ... or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States.” The third provision, 2385, makes it a crime to “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States.” The statute goes on to criminalize the intentional publication or circulation of any printed matter advocating the desirability of overthrowing the U.S. government. (Thirteen states also have their own laws banning “criminal anarchy.”)

Historically, sedition laws have been used to target critics of the government, and some of those prosecutions have run afoul of First Amendment protections. But the First Amendment does not uniformly protect speech if it incites violence.

Was Flynn inciting violence by proposing the military be used to seize voting machines? During the now-infamous Oval Office meeting, chief of staff Mark Meadows and White House counsel Pat Cipollone protested vehemently, but were there two or more people in agreement to overthrow the government? Was Flynn’s social media campaign a violation of the rule against circulating any printed matter advocating the overthrow of the government?

This is where the current sedition laws begin to seem inadequate to the task of responding to Flynn’s unprecedented proposal.

First, there is the problem of “sedition against what?” Usually, it’s the sitting government, which means that one could make a strong argument that it’s impossible for Trump to be involved in a seditious conspiracy so long as he’s the sitting President. Second, no one has ever been successfully prosecuted under the sedition statutes for exhorting a sitting president to perform an illegal act, with or without the president’s connivance.

But the ultimate weakness of sedition laws to meet this moment might be their sordid and deeply conflicted history in the United States.

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Time and again the government has established laws that made it a crime to disparage its leaders only to subsequently discard the laws when we found they offended our First Amendment sensibilities. When they’ve been used at all, the result has at times been an unsuccessful embarrassment to the prosecution.

In America, the Sedition Act of 1798 permitted the deportation or imprisonment of anyone who published “false, scandalous, or malicious writing” against the U.S. government. While proponents in the 5th Congress feared an impending war with France, Federalists sought to retain a majority in Congress and President John Adams in the White House. Virginia Democratic-Republican James Madison retorted in protest, “What will be the situation of the people? Not free: because they will be compelled to make their election between competitors whose pretensions they are not permitted by act equally to examine, to discuss and to ascertain.”

Adams lost reelection to Thomas Jefferson in 1800, and the statute expired a year later. Although 25 arrests were made under the law, its constitutionality was never established in court. During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus to imprison thousands of suspected or known dissidents without trial, a sweep that was arguably more draconian than the Sedition Act and done without the support of a federal sedition law.

In 1917, two months after America entered World War I, Congress passed the Espionage Act under President Woodrow Wilson, criminalizing the conveyance of information intended to interfere with the military’s prosecution of the war effort. In 1918, it passed amendments known as the Sedition Act, which made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States,” or to “willfully urge, incite, or advocate any curtailment of the production” of things necessary for the war effort.

This menu of laws spurred hundreds of convictions, but the Supreme Court upheld the Sedition Act’s constitutionality in a trio of decisions in 1919. In Abrams v. United States, for example, a 7-2 majority affirmed the convictions of Russian immigrants who distributed leaflets from a New York City window calling for a strike against the war effort. The court reasoned that the defendants’ actions posed a “clear and present danger,” as the natural effect was “to defeat the war plans of the Government.” The Sedition Act was repealed in 1920.

The Smith Act followed in 1940, establishing criminal penalties for advocating the overthrow of the U.S. government, among other things. A number of prosecutions of Communist Party organizers reached the Supreme Court, which in 1961 upheld the Smith Act as a matter of the First Amendment and affirmed the conviction in question, but ruled that the law should not be construed to criminalize mere membership in violent organizations. The current federal sedition laws reflect a series of amendments to the federal criminal code, which began in 1948 during the Red Scare.

The federal criminal sedition laws are not routinely employed. In 2010, the Department of Justice indicted nine individuals on seditious conspiracy and other charges. The defendants were members of a militia group called the Hutaree, which adheres to an ideology of Christian nationalism. According to the indictment, the group conspired to oppose by force the authority of the U.S. government and made preparations to engage it in armed conflict. A federal judge later dismissed the sedition-related counts. The leader of the group and two others pleaded guilty and were sentenced on lesser charges. Earlier this fall, outgoing Attorney General William Barr reportedly told federal prosecutors to consider sedition charges against protestors involved in escalating violence in Seattle and elsewhere in the wake of the killing of George Floyd.

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A criminal charge of sedition against Flynn and any cohorts — including possibly Trump himself — would be a long shot, both pragmatically and legally. But Flynn’s words cannot be shrugged off as unquestionably protected speech.

Criminal laws exist to disincentivize and control behavior that a stable, ordered society deems intolerable. Because indiscriminate murder, rape, assault and theft stoke chaos, fear and more violence, for example, those actions are banned and can send violators to life in prison or even the death chamber. Although normally criminal laws target dangerous actions versus speech, the kinds of unbridled speech rampant in cyberspace have increasingly opened up new frontiers for violence.

The First Amendment protects free speech, but in 1969 the Supreme Court held in Brandenburg v. Ohio that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Emphasis mine.)

Martial law is not mentioned in the Constitution. Nor is it authorized by any act of Congress. The Supreme Court has never directly held that the federal government has the power to impose martial law. Although the Insurrection Act allows the president to use armed forces to “suppress” an insurrection and restore immediate law and order upon the request of a state legislature or governor, an 1878 law called the Posse Comitatus Act otherwise forbids the use of the military for domestic law enforcement. A criminal statute puts members of the military who prevent or attempt to interfere with voters “exercising the right of suffrage” at risk of going to prison for up to five years.

In Washington, D.C., an estimated 200 members of the far-right group Proud Boys protested Biden’s election earlier this month, resulting in four people hospitalized with stab wounds. The Washington Post recently reported that the FBI has concluded that Iran supported online efforts to incite violence against officials who pushed back on Trump’s false claims of widespread voter fraud, including FBI Director Christopher Wray, ousted Homeland Security Department cybersecurity official Chris Krebs, and over a dozen other federal and state election officials whose images were posted with crosshairs superimposed — along with home addresses and other personal data — on a website called “Enemies of the People.”

Coup attempts aside, the safest prediction for American governance is that Biden will take the oath of office on January 20, and that the U.S. military will strictly follow his command as of 12:01 p.m. But by then, America will have dodged another bullet to the heart of the Constitution in the Trump era. It might be time again for Congress to revisit the lines between speech and violence.