The various plans and talking points that witnesses have revealed also highlight what a president has the power to do. Government and legal experts say the bigger question is: Can further limits be placed on presidential power to ensure they don’t happen again in 2020 under future administrations? WHAT LAWS ARE THE BASIS FOR PRESIDENTIAL POWERS? There are two main laws: the Sedition Act, first enacted in 1792, and the National Emergencies Act of 1976. The Sedition Act is a longstanding presidential power that gives the president broad latitude to use military force to stop an insurrection or domestic violence. Military forces are usually prohibited by the Posse Comitatus Act from participating in law enforcement actions. Elizabeth Goitein, senior director of the liberty and national security program at the Brennan Center for Justice, said the uprising “in my view” could have been the catalyst for the president to invoke the act and bring in the military to accompany lawmakers of Congress from their security procedures. “That doesn’t mean Donald Trump would have been president, but it would have thrown a wrench in the works,” he said. Under the NEAs, dozens of statutory authorities become available to each president when national emergencies are declared. They include everything from severe weather to civil unrest. Congress can vote to end the declaration, but if the president vetoes it, a two-thirds supermajority is needed to override the veto. “The statute itself does not say what an emergency is. It leaves it up to the president,” said Chris Edelson, an assistant professor of government at American University. “That means a rogue president can use it” for nefarious purposes. It is up to Congress to check the president, he said. WHICH ISSUES WERE HEARD AT THE LAST HEARING? In the most recent hearing, former White House counsel Pat Cipilone discussed an aggressive meeting in which Trump’s outside legal team brought a draft executive order to confiscate state voting machines. In his testimony Cipollone said the plan was a terrible idea. It had floated in the past. “You cannot preemptively seize voting machines. If there was a reason to do it, you need a court order,” Edelson said. At the same meeting, a number of theories were put forward, including the invocation of martial law. It was an idea floated by Trump adviser Michael Flynn, along with confiscation of voting machines. WHAT ABOUT MARTIAL LAW? Under the Sedition Act, the president can call in the military in certain circumstances, but they are intended to support civilian law enforcement. An example was the use of the military during the Los Angeles riots of 1992. Under martial law, the military takes over the functioning of the civilian government. Martial law, Goitein said, “gives me nightmares” because the law is unstable. “The whole concept of martial law, there’s not even an agreed-upon definition of what it is,” he said. ARE THERE GUARDS TO PREVENT FUTURE PRESIDENTS FROM ABUSE OF POWER? The House approved the Protection of Our Democracy bill last year and sent it to the Senate. The legislation would bar presidents from granting pardons, strengthen reporting requirements for campaigns, and clarify and strengthen criminal penalties for campaigns that accept foreign information sought or obtained for political advantage. The Senate has not taken any action on the proposal. Without congressional action, questions about presidential power and its expansiveness remain open. “The Constitution assumes that checks and balances work. If the president goes too far, Congress will rein him in,” Edelson said. In Trump’s case, Congress has shown no appetite to do so.
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