The Troops Aren’t Supposed to Be There

The Constitution, federal law, and military tradition all draw a line between protecting the country and policing the ballot box.

The legal barriers are substantial. The harder question is whether those barriers would be respected if a president ordered troops toward the polls.

When Donald Trump closed the Republican Midterm Convention by exhorting his followers to “cheat like hell” in the upcoming election, it is hard to tell what exactly he had in mind. One common fear is that “cheat(ing) like hell” might include deploying the US military to polling stations to intimidate voters.

That’s a crazy idea, but crazy ideas coming from the White House are anything but uncommon.. Can he do that legally? If not, would he do it anyway? And could such an action be challenged?

The Posse Comitatus Act, initially enacted in 1878, restricts the use of the military for domestic law enforcement purposes. Note that Posse Comitatus applies only to the military and not to paramilitary organizations such as those in DHS. Posse Comitatus reflects Americans’ general view that military involvement in domestic politics is inherently dangerous to a democracy. A related law, the No Troops at the Polls Act, makes it a crime to deploy military units to polling stations. The Insurrection Act, which authorizes the President to deploy the military domestically in support of state and local law enforcement where local authorities are unable to contain insurrection, rebellion, or domestic violence, operates as an exception to Posse Comitatus, but not necessarily the No Troops Act. The Insurrection Act likely would be the White House weapon of choice.

The Insurrection Act has been around since the earliest days of the Republic, but was last invoked in 1992 in response to riots that broke out all over Los Angeles when a jury refused to convict the Los Angeles police officers who were filmed beating Rodney King. While used in the pre-World War II era to break up labor strikes, Presidents Eisenhower, Kennedy, and Johnson invoked the Insurrection Act to enforce civil rights laws when state supported domestic violence prevented Black people from enjoying the civil rights guaranteed by the Constitution. President Grant used the Insurrection Action to prevent violence directed at freed slaves in the aftermath of the Civil War.

The use of the Insurrection Act is a mixed bag: protecting Black Americans in the post-Civil War period and during the Civil Rights movement, but intervening on the side of owners to break railroad, mining, and other strikes in the late 19^th and early 20^th century. Despite several threats from the current president, the Insurrection Act has never been invoked in this century, and never to help one party “cheat like hell” during an election by deploying the US military to intimidate voters.

The interaction of these laws shows a strong legislative aversion to the notion of deploying the military to polling sites in the absence of an overwhelming presence of armed enemies. Similarly, it is only appropriate to invoke the Insurrection Act when local authorities are unable to contend with massive civil disorder.

The Founders, fearful of a rogue military, wrote civilian control into the Constitution, and gave Congress the power to declare war. An apolitical military has been a bedrock of American democracy. Whenever demagogues talk about using the military for domestic purposes, we have relied on the professionalism of senior officers to refrain from engaging in domestic deployments except under the most critical circumstances.

If “cheat like hell” includes a plan to use the military to interfere with the midterms, the current legal structure would argue strongly that such a deployment is illegal. Military tradition should also provide some comfort against a rogue military deploying strategically with the goal of suppressing the vote. And courts could step in to prevent such egregious behavior, as they did with regularity during the Civil Rights era.

But let’s be real. The current Secretary of Defense has worked assiduously to destroy the military’s apolitical culture, purging Black and female flag officers and striking others from apolitical promotion lists. Hegseth now seems to be engaged in adding inappropriate criteria for promotion to ensure the military’s most senior ranks are filled with white men who have a specific religious and political point of view.

Courts could intervene, but any judicial remedy is likely to be too late to stop voter intimidation. There is no legal basis for the president to invoke the Insurrection ActAnd Todd Blanche’s Justice Department will bless whatever the White House decides to do.

This may sound bleak. But we are not without power. As informed citizens, we can vote early (but only once, since it is a crime to “cheat like hell”). We can encourage our friends and neighbors to vote early as well. And as the Steady State has argued, we can take steps in our communities to help protect the vote. We must not let a climate of fear, even if it includes the illegal domestic use of the military, prevent us from fulfilling our single most important civic duty – voting.

James Petrila spent over thirty years as a lawyer in the Intelligence Community, working at the National Security Agency and, for most of his career,at the Central Intelligence Agency. He has taught courses on counterterrorism law and legal issues at the CIA at the George Washington University School of Law. He is currently a senior advisor to the Institute for the Study of States of Exception and is a member of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 440 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.