The Road to Jan 6 Final

Donald Trump Should Declare Martial Law, Michael Flynn Retweeted from His Now-Banned Account

In this daily series, Newsweek explores the steps that led to the January 6 Capitol Riot.

"Freedom never kneels except for God," retired Michael Flynn tweeted on December 2, sharing an advertisement from the We the People Convention, an Ohio activist group.

In the ad, the Convention asks President Donald Trump "to exercise the Extraordinary Powers of his office and declare limited Martial Law to temporarily suspend the Constitution and civilian control of these federal elections in order to have the military implement a national re-vote that reflects the true will of the people."

Trump had granted a full pardon to Michael Flynn, his first national security advisor, just eight days earlier. Flynn had already joined the Trump campaign and its most vociferous lawyer—Sidney Powell—in promoting the wildest conspiracy theories about a stolen election. And though his December 2 tweet was a retweet, and Flynn never explicitly mentioned martial law, behind the scenes the retired Army general and former director of the Defense Intelligence Agency pushed Trump campaign lawyers and the president himself to use the military to intervene in the results of the vote.

Flynn, in a later Newsmax interview, said that Donald Trump had "options" to maintain the integrity of the election. "The president has to plan for every eventuality because we cannot allow this election and the integrity of our election to go the way it is,'' Flynn said.

"He could immediately on his order seize every single one of these machines around the country on his order. He could also order, within the swing states, if he wanted to, he could take military capabilities and he could place them in those states and basically rerun an election in each of those states. It's not unprecedented," Flynn added.

Donald Trump's former national security advisor Michael Flynn backed a call for Trump to declare martial law and force a do-over of the 2020 election. Tasos Katopodis/Getty

"These people out there talking about martial law like it's something we've never done," Flynn told Newsmax. "Martial law has been instituted 64 times. I'm not calling for that. We have a constitutional process. ... That has to be followed. But I will tell you I'm a little concerned about Chief Justice John Roberts at the Supreme Court. We can't fool around with the fabric of the Constitution of the United States.

"Clearly there is a foreign influence that is tied to this system and it goes back to China, likely gets to Russia, likely goes to Iran," he said talking about the Dominion voting machines. "There's been problems all over the country with them."

In his new book, "Betrayal: The Final Act of the Trump Show," Jonathan Karl writes that Flynn and Powell tried to enlist Trump's post-election appointee Ezra Cohen-Watnick to help overturn the election. According to Karl, Flynn called Cohen-Watnick, who previously worked for him at DIA and whom Flynn had hired in the first month of the Trump administration to staff the National Security Council, to return from the Middle East "immediately because there were big things about to happen."

In "Betrayal," Flynn is quoted telling Cohen-Watnick: "We need you ... there was going to be an epic showdown over the election results."

Cohen-Watnick was needed "to get orders signed, that ballots needed to be seized, and that extraordinary measures needed to be taken to stop Democrats from stealing the election," Flynn reportedly said.

"Sir, the election is over," Cohen-Watnick told Flynn, according to his own account in "Betrayal." "It's time to move on," the former aide told Flynn.

Flynn, according to Karl's account, shot back: "You're a quitter! This is not over! Don't be a quitter!" It was the last time the two of them spoke.

As Newsweek previously reported, Pentagon Chief of Staff Kash Patel, rather than Cohen-Watnick (who was traveling with acting Secretary of Defense Miller in Asia and not the Middle East) was mysteriously called back to Washington. According to Carol Leonnig and Phillip Rucker's "I Alone Can Fix It," Joint Chiefs Chairman Army Gen. Mark Milley thought another national security official was about to be dismissed—maybe himself.

Watnick-Cohen or Patel; Asia or the Middle East; another firing or a declaration of martial law: it is now clear that Flynn's machinations were taken seriously in the Pentagon, so much so that Acting Secretary of Defense Chris Miller held back on the use of the military on January 6.

According to the Department of Defense Inspector General's report on the Pentagon reaction to the elections and protests,

Mr. Miller told us, "There was absolutely no way ... I was putting U.S. military forces at the Capitol, period." He cited media stories alleging that the President's advisors were pushing him to declare martial law to invalidate the election and that Mr. Miller was an ally installed as the Acting SecDef [Secretary of Defense] to facilitate a coup. He also cited a January 3, 2021 open letter from 10 former Secretaries of Defense warning the DoD not to use the military in a manner antithetical to the U.S. Constitution. Mr. Miller stated that he "made a very deliberate decision that I would not put U.S. military people ... East of the 9th Street, northwest. ... And the reason for that was I knew if the morning of the 6th or prior if we put U.S. military personnel on the Capitol, I would have created the greatest Constitutional crisis probably since the Civil War."

In the Inspector General's report, Secretary of the Army Ryan McCarthy supports Miller's account, saying that Miller "made it clear that the military would not be involved in certifying the election results and that '10 different news agencies' asked him about military use and martial law."

Some critics have suggested that Flynn be arrested for sedition or even treason, that all of the plotters and even January 6 protestors who attacked police and forcibly entered the Capitol be charged with the same. What is clear is that Flynn, in his public statements, never called for martial law. He repeated others' calls and said he wasn't calling for it himself. What he said to President Trump, and what he actually said to Watnick-Cohen or Kash Patel, is still a mystery.

The law is clear: "Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States ..." or anyone who might "teach, advocate, or encourage the overthrow or destruction of any such government by force or violence" is guilty of sedition.

But sedition cases are rare in modern America, the proof of "overthrowing or destroying the government" by force of violence a high bar. Only 12 Americans have ever been successfully convicted in more than 200 years—rarities like Aaron Burr and Jefferson Davis. So many unsuccessful government attempts to apply the seditious label have made most prosecutors gun-shy about bringing charges. Most cases have been dismissed in court because judges have ruled that encouragement and incitement, no matter how radical, is protected by the First Amendment and doesn't prove that the accused had plans for a rebellion.

The last person charged with sedition, the al Qaeda spokesman Adam Gadahn, came in 2010. Before Gadahn could be tried in a court of law, he was killed by an Obama administration drone strike in Pakistan.