A question for lawyers and Constitutional experts on DU.

[potone]

I am beyond outraged by the revelations that the Russians manipulated our elections, by the seeming refusal of Republicans in Congress to take it seriously, and by the–so far–limp response of Democrats. It seems to me that this should call into question the legitimacy of Trump's victory in the Electoral College. This is unprecedented foreign interference in our elections, as far as I know. This would be bad in any election, but given what we are facing with a Trump presidency, it is nothing short of disastrous.

But as a practical matter, what can we do? I would like to hear about any legal actions that are possible to overturn the election in light of these revelations. I am all for protest marches, but those alone won't have any legal force.

[Uponthegears]

1. There is little under the law

But the suspension of the law in times of national emergency is specifically acknowledged.

[sarisataka]

2. Reference please nt

[Uponthegears]

6. Article I Section 8 of the Constitution

Regarding the suspension of the writ of Habeas Corpus, provides that the writ may be suspended under certain conditions. This was interpreted by Lincoln and I think Washington as acknowledgement of the common law power of martial law.

Arguably at least the manipulation of the electoral process through a conspiracy with a foreign country by a citizen would qualify as an insurrection.

[sarisataka]

7. That is not suspension of law,

just of Habeas Corpus. Unless you wish Obama to lock Trump up to prevent his inauguration.

Lincoln did it but the courts overturned his decree. He generally ignored the rulings and did it anyway.

The last suspension of Habeas Corpus was done by Bush II. The courts did uphold a very narrow category where Habeas Corpus is not needed. Still I would rather not use Brush II as a pattern for governance.

[Uponthegears]

8. I cannot blame you, but

Damage flowing from this insurrection is far greater and far more uncorrectable by other means than any that has come before.

Btw, Lincoln did far more than just lock people up, he imposed Martial Law. Habeas Corpus provides a remedy for all improper government infringements on liberty interests, not just incarceration.

[onenote]

11. The Supreme Court on martial law:

"If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."

So, no, the Constitution would not allow for martial law under current circumstances.

[Uponthegears]

13. Jeez, you made me have to go to my desktop

The quote from In re Milligan (the Civil War case that Lincoln ignored with impunity) is certainly a fine discussion of the circumstances when the writ can (okay, cannot be) be suspended.

However, if you look at my original post, what I said is that Art. I, Sec. 8 "acknowledges" that the power of martial law resides in the executive. It does not establish the power of martial law, nor, does it directly limit it, other than to the extent that it notes that decisions rendered under martial law can always be reviewed under the Great Writ.

The suggestion that Milligan stands for the proposition that martial law cannot be imposed at times of national emergency, however, is belied by history. In fact, martial law has been imposed even after Milligan was decided AND not only when the civil courts were unavailable. Not unsurprisingly, most of those situations were to quell either real or imagined popular uprisings, e.g., during Matewan and the coal wars.

I understand that the power is offensive to all modern notions of civil liberty, but the question was simply whether it exists.

Perhaps because the notion that civil liberties actually exist for anyone but the privileged is pretty quaint to someone who sees his brothers and sisters gunned down by the government without consequence, I am less repelled when it comes to the idea that they can be equally disregarded when preventing a despot from corrupting the electoral process. Perhaps history educates me that, when such men are allowed to hide behind principles designed to protect the oppressed, millions are crushed beneath their boots. Perhaps the destructiveness of the impending storm compels me to conclude that no port can be ignored.

In any event, I cannot capitulate to tyranny simply because the only available remedy offends my highest aspirations and ideals or has been abused in the past.

I am just not that noble.

[onenote]

14. Article I, Section 8:

Article I, Section 8 enumerates the powers of Congress, which makes me wonder if you may be thinking of some other provision when you refer to the Constitution acknowledging the power of the executive branch to declare martial law. I certainly don't see anything to that effect in Article I, Section 8. The closest is the provision authorizing Congress (not the executive) to "call[]forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." To the extent that suspending habeas corpus is equated with martial law (and its not really the same thing), Article I, Section 9 states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Nothing in that provision 'acknowledges" the right of the executive to do anything -- indeed, article I states the powers of the legislative branch and the limits thereon. Article II deals with the power of the executive branch.

Section 8 -
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; —And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

[Uponthegears]

16. OMG, good point (And I mean more than just the 8/9 typo)!!!!

The power of the executive to declare martial law is inherent in the President's role as commander and chief and resided within the head of the military at common law at the time of the Founding.

The great part of your observation is that even Section 9 limits only Congress' power to suspend the Writ (which is explained in Milligan) and in a different way in Felker.

The question then arises whether the Constitution limits the President's power to suspend the writ. The answer to that question is easier. Because we are a government of enumerated powers, the Constitution would have to limit the President's power to suspend the Writ ONLY if it had granted him ANY power to do so in the first place. Unlike the power to impose martial law, which is (implicitly) enumerated in Article II, Section 2, nowhere does the Constitution grant the power to suspend the Writ the executive.

Of course, this all leaves open the question whether the executive can impose martial law during a time of civil unrest, insurrection, etc. (although history teaches that he/she can). More importantly, it leaves open the thornier questions of whether Our President could do so in the event it is revealed that our elections had been corrupted by a Trump/Putting conspiracy AND the one upon which people most disagree, should he do so.

Again, thanks!!

[Jersey Devil]

3. There is no legal remedy

It is either 4 years and try to elect a Democrat or revolution.

[Kotya]

4. The Constitution is pretty clear on the matter.

At precisely noon on January 20th, 2017, Donald J. Trump will affirm the Oath of Office and assume the position of President of the United States. This transfer of power will take place with the simple movement of a hand on a clock. No inaugural ceremony is necessary.

At this exact time, President Barack H. Obama will cease being the President of the United States.

It is in the Constitution.

There is no Constitutional procedure to overturn an election.

Perhaps President Obama can stand in front of the White House doors, blocking the entrance and refusing to hand over the keys but this would look silly and childish.

Once Trump becomes President, there are mechanisms in place to remove him from office.

Again, it's all in the Constitution.

As a practical matter, what can we do is to demand our elected representatives investigate any illegalities that transpired and prosecute those that are found and if they won't do this, we elect those who will.

[Hassin Bin Sober]

9. If you want to bring up The Constitution, you should at least mention...

... The Electoral College.

They haven't voted yet.

They are the only people that can stop this disaster.

President Obama needs to step up to the plate and make what evidence they have public. Fuck McTurtle.

[mtnsnake]

5. Something you can do is call all of your "favorite" congressmen & pose that question to THEM

Don't stop calling them until they give you an answer. Maybe your question will strike a chord with one of them.

[Lurks Often]

10. Arguably 3 things, none of which I expect to happen

1. The Electoral College chooses not to give 270 EC votes to Trump; the EC will NOT give Clinton or any other democrat 270 EC votes.

2. If no candidate gets 270 EC votes, the House of Representatives votes on who the President will be and the Senate votes on who the VP will be. Since the Republicans control both chambers of Congress, they will NOT give Clinton or any other democrat the White House.

3. After Trump is sworn in, Congress can vote to impeach and convict Trump (and Pence) in which case Paul Ryan becomes President, however it is very likely that there would need to be ABSOLUTE proof that Trump knew the Russians were intervening in the election on his behalf.

Bottom line, whatever happens there will be a Republican in the White House on January 20, 2017, anything else will almost certainly result in violent civil war.

[jalan48]

12. Trump electors don't believe it.