Constitutional Law

Professor William C. Banks Helps CNN Explain Steve Bannon 1/6 Subpoena

College of Law Professor Emeritus William C. Banks was interviewed by CNN on Oct. 19, 2021, about former Donald Trump advisor Steve Bannon being held in contempt of a subpoena by the House of Representatives committee investigating the Jan. 6, 2021, attacks on the Capitol.

His interviews were seen during The Lead with Jake Tapper and The Situation Room—watch an ABC syndication of the interview:

Explains Banks, “We can go up and down the federal court hierarchy multiple times—so, District Court, Court of Appeals, and even the United States Supreme Court could potentially hear one of these cases.

“Historically, one of the remarkable things about the clash between the executive and the legislature in this kind of setting, involving executive privilege and congressional demands for information, is that almost all of the time the parties have negotiated a settlement.”

Professor William C. Banks Helps Explain Insurrection Act for USA Today

What is the Insurrection Act and how could Trump use it? Here’s what to know

(USA Today | Jan. 11, 2021) False social media posts swirled late Sunday that President Donald Trump in the wake of the U.S. Capitol riots had invoked the Insurrection Act, a law that allows the president to deploy the military to quell rebellion.

Tweets sharing images of military personnel in Washington continued to spread Monday morning and became a trending term on Twitter. However, Trump has not invoked the law.

The law, which has existed in various forms since the time of George Washington and in its current state since the Civil War, allows the president to dispatch the military or federalize the National Guard in states that are unable to put down an insurrection or are defying federal law …

William Banks, a Syracuse University College of Law Board of Advisors Distinguished Professor, said that when thinking about the Insurrection Act, it’s important to remember one of the most basic principles of the United States’ founding: that the military not be involved in civilian affairs.

“The Insurrection Act lays into U.S. law an exception to that background principle,” Banks said.

In most cases, a state would want to rely on National Guard troops in situations of unrest. The Insurrection Act is generally reserved for when “things are really bad,” Banks said …

… Hoffmeister and Banks said, however, there was no need for Trump to invoke the Insurrection Act on Jan. 6. given the federal government’s control of the district’s National Guard and federal law enforcement. Invoking the Act would have further allowed Trump to send active-duty military to the district when he already in effect had control over its National Guard and federal police …

Read the full article.

 

Professor William C. Banks Explains Martial Law in UK’s The Daily Express

US election re-run: Right-wing leader demands ANOTHER vote – with martial law in place

(The Daily Express (UK) | Dec. 5, 2020) Tom Zawistowski, leader of We The People Convention, is championing “limited martial law” to complement a re-run of the November election. He described Joe Biden as “an illegitimate president”, adding: “We are not asking for the president to contest the current election results because they are so fraudulent no one can figure out which votes count and which ones don’t because that is exactly what the Democrat/Socialists wanted.”

These claims are disputed and numerous legal challenges put forward by US President Donald Trump have failed …

… Speaking to Express.co.uk, professor William C. Banks of Syracuse University College of Law said: “There is no provision in the US for martial law, and it has not been declared by a US official since the attack on Pearl Harbor in 1941.

“It is widely understood to be available only in the event of a complete breakdown of civil institutions” …

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“Preposterous:” Professor William C. Banks Speaks to Military Times on Calls for Martial Law

Calls for martial law and US military oversight of new presidential election draws criticism

(Military Times | Dec. 2, 2020) The idea that the U.S. military would oversee a new nationwide presidential election — ordered under martial law by President Donald Trump — is “insane in a year that we didn’t think could get anymore insane,” a defense official tells Military Times.

“Martial law has no place in the United States.”

Yet retired Army Lt. Gen. Michael Flynn promoted that exact idea Tuesday evening when he tweeted a press release from an Ohio-based conservative political organization …

… The idea is “preposterous,” said Bill Banks, a Syracuse University professor with expertise in constitutional and national security law.

“Apart from the fact that state and now federal investigators have found no evidence of election fraud that would change the election outcome, martial law has no place in the United States absent a complete breakdown of civil governing mechanisms,” he told Military Times.

Martial law, he added, “simply has the military in charge, subject only to military orders, not civilian law.”

It has not been invoked in the U.S. “since the attack on Pearl Harbor, and there is no likelihood or justification for martial law now,” said Banks. “Our civilian institutions have, in fact, revealed themselves to be resilient in responding to unprecedented partisan attacks on election administration and vote counting in state and local systems across the United States” …

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Professor William C. Banks Discusses Presidential Transition on Lawyer 2 Lawyer

On Lawyer 2 Lawyer, host Craig Williams is joined by William C. Banks, professor and former interim dean from the Syracuse University College of Law and professor Leslie Gielow Jacobs, director of the McGeorge School of Law Capital Center for Law & Policy, as they explore the practical impacts of a delayed transfer of power from an uncooperative incumbent administration, both for the incoming administration and the American people. They’ll discuss what lessons we can learn from the past, and what options the Biden administration may have going forward.


The transition of presidential power is the process during which the president-elect of the United States prepares to take over the administration of the federal government of the United States from the incumbent president. The peaceful transition of government has long been a hallmark of American democracy.

In what has become an unfortunately common refrain, 2020 has proven different. For weeks following the election being called for Joe Biden, the Trump administration refused to begin the transition process. It was in these circumstances that this episode was recorded. However, since then, the General Services Administration has decided to release funds to the incoming Biden administration to facilitate a transition, but that doesn’t necessarily mean a smooth transition is here.

The possible impact of the delays, continuing refusals to concede defeat, and ongoing litigation disputing the results in multiple swing states give rise to concerns regarding national security, the economy, and the government’s ability to properly address the effects of the Coronavirus.

Transition of Power

 

Hon. James E. Baker: Obedience to Orders, Lawful Orders, and the Military’s Constitutional Compact

(Just Security | Nov. 2, 2020) An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath:

“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Introduction

During the height of the Watergate scandal in 1974 Secretary of Defense James Schlesinger is said to have become so concerned about President Nixon’s emotional state that he instructed the military chain of command that any orders conveyed directly by the President to the military should be re-routed through him to determine if they should be followed. Schlesinger was particularly concerned about orders pertaining to nuclear command and The Trump Administration, which is to say President Trump, has renewed interest in the subject of nuclear command and control and more generally the question of lawful orders.

In 2017, the then Commander of U.S. Strategic Command was asked about the scenarios in which he might advise, or even push back against, the President in a discussion on nuclear matters. General John E. Hyten, who now serves as the Vice Chairman of the Joint Chiefs of Staff, responded:

I think some people think we’re stupid. We’re not stupid people. We think about these things a lot. When you have this responsibility how do you not think about it? And so – but what people forget is this is a military mission and a military function. And since the day I joined the service, 36 years ago, every year I get trained in a law of armed conflict. And the law of armed conflict has certain principles and necessities, distinction, proportionality, unnecessary suffering. All those things are defined. And we get, you know, for 20 years it was the William Calley thing that we were trained on because if you execute an unlawful order you will go to jail. You could go to jail for the rest of your life. It applies to nuclear weapons. It applies to small arms. It applies to small unit tactic. It applies to everything and we apply it as we go through it. It’s not that difficult. And the way the process works – if you want to get the details later, I’ll go into the details later. The way the process works is this simple: I provide advice to the President. He’ll tell me what to do and if it’s illegal, guess what’s going to happen?

Moderator: You say no.

General Hyten: I’m going to say, Mr. President, it’s illegal. And guess what he’s going to do? He’s going to say what would be legal? And we’ll come up with options of a mix of capabilities to respond to whatever the situation is. And that’s the way it works. It’s not that complicated.

More recently, the clearing of protesters in Lafayette Square, the advent of protest movements across the country following the death of George Floyd, and statements by President Trump about the electoral process have prompted questions about when and in what contexts the President may lawfully order U.S. Armed Forces, regular, reserve, or National Guard, into domestic and civil contexts.

President Trump’s tweets, some about military matters, also prompt consideration of what exactly is an order, does it have to take a particular form, and when is a statement by the President a military order? These are urgent questions the answers to which ought to be known not only to the Commander in Chief, but also to the military commanders and units under his ultimate constitutional command. The American public, which reveres the Armed Forces, in part because of their apolitical adherence to law, should know as well so that it can make informed judgments about whether to send its sons and daughters into the Armed Forces and determine whether the military’s leadership is supporting and defending the Constitution and America’s constitutional values and traditions.

However, although the question of lawful orders may be cast and debated with a particular president in mind, or through a partisan lens, questions about lawful orders are recurring and arise in daily national security contexts across administrations as well as everyday military life …

Good Governance Paper No. 21: Obedience to Orders, Lawful Orders, and the Military’s Constitutional Compact

Professor William C. Banks Helps Military Times Explain Martial Law

How the president could invoke martial law

(Military Times | Oct. 23, 2020) Throughout 2020, America has faced a global pandemic, civil unrest after the death of George Floyd and a contentious election. As a result, an influx of fear about the possibility of the invocation of martial law or unchecked military intervention is circulating around the internet among scholars and civilians alike.

“Martial law isn’t described or confined or limited, proscribed in any way by the Constitution or laws.”

“The fear is certainly understandable, because as I’m sure you know, martial law isn’t described or confined or limited, proscribed in any way by the Constitution or laws,” Bill Banks, a Syracuse professor with an expertise in constitutional and national security law, told Military Times. “If someone has declared martial law, they’re essentially saying that they are the law.”

What is ‘martial law’

In short, martial law can be imposed when civil rule fails, temporarily being replaced with military authority in a time of crisis. Though rare, there have been a number of notable U.S. cases where martial law came into play, including in times of war, natural disaster and civic dispute — of which there has been no shortage in 2020.

While no precise definition of martial law exists, a precedent for it exists wherein, “certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement. And the writ of habeas corpus [the right to a trial before imprisonment] may be suspended,” according to documents from JRANK, an online legal encyclopedia …

Read the full article.


See also: 

What is martial law? Can the president declare it? Good questions.

 

Professor Mark Nevitt Weighs In on Invoking the Insurrection Act

As President Donald J. Trump threatens to invoke the Insurrection Act as a response to protests, riots, and acts of civil disobedience in the aftermath of the death in policy custody of Minneapolis resident George Floyd, the media in the US and abroad has turned to national security expert Professor Mark Nevitt to explain what the law is and what the Trump Administration can and can’t do to quell civil unrest …

The Insurrection Act, the 1807 law Trump could use to deploy troops to curb protests, explained

(Vox) | June 2, 2020

… By far the most important of those authorizations—and the one most likely to come into play in this situation—is the Insurrection Act.

“This is the legal key that unlocks the door to use federal military forces … to quell civil unrest,” Mark Nevitt, a military law expert at the US Naval Academy, wrote for the Just Security website last Friday.

Nevitt noted two main ways the Insurrection Act could be invoked for the protests …

Trump threatens to invoke Insurrection Act 

(Politico) | June 2, 2020

The last time the Insurrection Act was invoked was to quell riots in Los Angeles in 1992 after a request by then-Gov. Pete Wilson.

But retired Navy Cmdr. Mark Nevitt outlined in an analysis on Monday those provisions in the law that Trump could use without the consent of governors …

Can Donald Trump really invoke the Insurrection Act to send troops into states?

(PolitiFact) | June 2, 2020

… “In requesting federal troops to patrol Los Angeles, (California Gov. Pete) Wilson specified that the California National Guard lacked the ability to quell the domestic disturbance,” wrote Mark P. Nevitt, a professor at the U.S. Naval Academy. President George H.W. Bush then issued an executive order that authorized the defense secretary to federalize the California National Guard and deploy active-duty Army and Marine personnel.

However, such decisions have not been made lightly, Nevitt wrote, even in the direst of emergencies …

Five things to know about Trump’s legal power under the Insurrection Act

(The Hill) | June 2, 2020

… if a U.S. military member were to adhere literally to Trump’s controversial invocation of the phrase “when the looting starts, the shooting starts,” Nevitt wrote, it would mark a clear violation of the rules …

George Floyd protests: Trump threatens to deploy ‘heavily armed’ US military

(The Independent) | June 2, 2020

“Can Trump use the Military to respond to Minneapolis? Yes, but this is subject to certain, critical legal restrictions under both the Posse Comitatus Act and the Insurrection Act,” Mark Nevitt, a law professor at the US Naval Academy wrote for Just Security.

“The Insurrection Act is, by far, the Posse Comitatus Act’s most important exception,” Mr Nevitt added. “This is the legal key that unlocks the door to use federal military forces – whether through federalising the National Guard or calling in “’title 10 forces’ to quell civil unrest” …

Background Briefing: William C. Banks Assesses the Possibility of Martial Law

Is Trump Both the Arsonist and the Fire Brigade Sparking Insurrection Then Declaring Martial Law?

(Background Briefing | April 19, 2020) We look further into Trump’s encouragement of insurrection, aided and abetted by his propaganda mouthpiece Fox News, and speak with William Banks, Distinguished Professor Emeritus at Syracuse University College of Law who is the author of Soldiers on the Home Front: The Domestic Role of the American Military and has an article at The AtlanticMartial Law Would Sweep the Country Into a Great Legal Unknown“.

He joins us to discuss how Trump is both the arsonist and the fire brigade igniting the spark of insurrection while possibly declaring martial law to put out the “Reichstag Fire” he has lit. Unfortunately while unprecedented, this prospect is not entirely hypothetical given Trump’s hatred of the press which he would shut down, and his fear of losing the election, which he would suspend.

Why Is Trump So Timid With the Defense Production Act?

By the Hon. James E. Baker

“Why isn’t the government bringing its full arsenal to the fight?”

(The New York Times | April 3, 2020) Every Marine knows better than to pull a knife in a gunfight. But so far, that appears to be the federal government’s approach to battling Covid-19. The president has “invoked” the Defense Production Act, but the government has not used the full authority of the act. There is a difference between invoking a law and using it, just as there is a difference between talk and action.

Governors and health officials tell us that there is a profound gap between the protective equipment, hospital equipment and testing resources that are needed (and will be needed) and what is available (or in the pipeline). Bill Gates reminds us that we will need to produce millions, perhaps billions, of doses of vaccine in 12 to 18 months. This isn’t a passing crisis; we will need more of everything in two months, six months and maybe years.

Don’t let debate over the details of General Motors’ and Ventec’s honorable effort to build more ventilators hide the bottom line: The federal government has all the authority it needs to close the supply gap, allocate resources among states, and prepare for the production and distribution of the vaccine to come. Until the federal government demonstrates — with statistics, contracts and timelines — that the gap is closed and the vaccine pipeline is ready, we should ask: Why isn’t the government bringing its full arsenal to the fight? …

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