Expert: Insurrection Act needs reform to prevent another Jan. 6
Trump supporters rioting at the US Capitol. (Shutterstock.com)

With the January 6th Committee set to begin public hearings tomorrow, a nationally-recognized expert on presidential emergency powers is proposing reforms to the Insurrection Act in light of revelations that former Donald Trump considered declaring martial law to prevent the transition of presidential power during the waning days of his administration.

“On January 6th, an invocation of the Insurrection Act arguably would have been appropriate — if the goal were to suppress the insurrection," said Elizabeth Goitein, who co-directs the liberty & national security program at the left-leaning Brennan Center for Justice. She noted that General Mark Milley, chairman of the Joint Chiefs of Staff, and acting Secretary of Defense Christopher Miller expressed concerns about "a misuse of the Insurrection Act to inhibit the transition of power."

Goitein's remarks came during a press briefing held by the advocacy organization Protect Democracy on Wednesday, that also included retired Admiral Steve Abbot, the former deputy homeland security adviser under President George W. Bush, and retired General George R. Casey Jr., former chief of staff of the US Army under Presidents Bush and Obama.

Abbot explained that the Insurrection Act, which was passed in 1807, provides an exception to the 1878 Posse Comitatus Act, “which limits the power of the federal government to use federal military forces to enforce domestic policies." The Insurrection Act was invoked by President Eisenhower in 1957 to enforce a desegregation order at Central High School in Little Rock, Ark. and by President George HW Bush to suppress the LA Riots in 1992. Abbot added that the Insurrection Act has also been used in "some unsavory incidents of suppressing Native Americans and the suppression of labor movements."

While President Trump did not ultimately invoke the Insurrection Act during the transition near the end of his term, Goitein noted that he deployed federal forces in DC in the previous summer.

“I feel that on January 6th in terms of the Insurrection Act we maybe dodged a bullet," she said. "But we have still seen what our permissive laws can allow in terms of domestic deployment. And we saw that, for example, in June 2020 when thousands of National Guard members from 11 states and the District of Columbia descended on the district to police what were largely peaceful protests in the wake of George Floyd’s killing."
Goitein noted that Trump didn't need to invoke the Insurrection Act in that case because under federal law, the mayor of DC does not retain local control of the district's National Guard, and therefore it is always federalized.

Goitein, Admiral Abbot and General Casey expressed concurring views that reforms are needed to ensure that the next coup attempt does not succeed.

“Frankly, in my opinion, it was a close-run thing, and it could have turned out differently," Admiral Abbot said. "The nation needs to have a frank discussion about what occurred on January 6th. Obviously, a much bigger discussion than about just the two issue of the US military and the service of the nation. We are, after all, talking about an attempted coup. But the military issues are intertwined with the other issues. And I’m hopeful that the hearings and the report of the January 6th Committee will deal with all the issues, and that we can as a nation come together to make whatever changes are needed to prevent a recurrence.”General Casey added: "We did not have a peaceful transition of presidential power for the first time in our history. That is something that is significant. And, frankly, it tarnishes our reputation as the world's leading democracy. And it's something that's used against us by our opponents to undermine our political system."

Goitein proposed specific measures to ensure that the Insurrection Act is not abused for political purposes by a sitting president in the future.

“Bottom line: When it comes to the legal authorities governing domestic deployment of the military, the lesson from January 6th, at least for me, is twofold," she said. "First, Congress should reform the Insurrection Act to clarify and narrow the criteria for deployment and to give Congress and the courts the ability to serve as checks in the event of abuse. And, second, Congress should update the law to give DC’s mayor command and control over the DC National Guard, except when the Guard is called into federal service.”

General Casey said he also hopes the January 6th Committee will make a recommendation to clarify the Electoral Count Act of 1887, which does not explicitly require state legislatures to honor the popular vote in forwarding electoral slates in presidential elections.

"I believe that the ambiguity of that 1887 law around the electoral vote count of the Electoral College caused significant ambiguity and friction that basically created instability that was absolutely unnecessary at the time," he said.