Although it’s generally only mentioned in passing in the mainstream media, there are two particularly chilling passages in Jack Smith’s indictment of Trump.
Both, to my mind, invoke Kent State, but on a much larger scale.
With that crime, you’ll recall, on May 1, 1970, Ronald Reagan called students protesting the Vietnam war across America “brats,” “freaks” and “cowardly fascists,” adding, as The New York Times noted at the time:
“If it takes a bloodbath, let’s get it over with. No more appeasement!”
Four days later, on May 5, 1970, Reagan got his bloodbath at Kent State University when 28 National Guard soldiers opened fire with live ammunition on an estimated 3,000 student protestors.
Over a mere 13 seconds, nearly 70 shots were fired. Jeffrey Miller, Allison Krause, William Schroeder and Sandra Scheuer were killed, and nine others were wounded. One of the dead, William Schroeder, was shot in the back, as were several of those injured by gunfire.
The murders at Kent State shocked the nation, and, I remember well, caused many of us in the antiwar movement to reconsider some of our tactics. That was the year the Weather Underground, an SDS offshoot willing to using violence, began to pick up membership in a big way.
Now imagine if the plan Trump, Eastman, Giuliani, Powell, Chesebro, and Clark laid out had succeeded.
If the mob had seized and hanged Mike Pence, and Chuck Grassley had taken the Speaker’s gavel in his place, accepting the fake electors from a half-dozen states and certifying Trump as having been re-elected.
If Trump then declared a state of emergency, and invoked the Insurrection Act, putting the military in charge of the country.
The possibility of this so alarmed all 10 living former defense secretaries that they wrote an OpEd for the Washington post on January 3rd that said:
“As senior Defense Department leaders have noted, ‘there’s no role for the U.S. military in determining the outcome of a U.S. election.’ Efforts to involve the U.S. armed forces in resolving election disputes would take us into dangerous, unlawful and unconstitutional territory.”
It could be Kent State multiplied a hundredfold. People would pour into the streets in every city in America, protesting the theft of the 2020 election by Donald Trump after the media and secretaries of state of each of those states had announced he’d lost the election by over 7 million votes.
As the Trump indictment shows, a “Senior Advisor” (I’m guessing Mark Meadows) told John Eastman (Co-Conspirator 2) that pulling such a stunt would mean:
“[Y]ou’re going to cause riots in the streets.”
Eastman’s response was described in the indictment:
“Co-Conspirator 2 responded that there had previously been points in the nation’s history where violence was necessary to protect the republic.”
Eastman was echoing one of the slogans of the modern rightwing white supremacist militia movement, which loves to quote (and put on tee-shirts) Jefferson’s 1787 comment in a letter to John Adams’ son-in-law:
“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
In a similar conversation, this time arguing that Trump could call out the military to use live ammunition and the power of arrest to quell unrest, the indictment notes:
“The Deputy White House Counsel reiterated to Co-Conspirator 4 that there had not been outcome-determinative fraud in the election and that if the Defendant remained in office nonetheless, there would be ‘riots in every major city in the United States.’
“Co-Conspirator 4 [Jeffrey Clark] responded, ‘Well, [Deputy White House Counsel], that’s why there’s an Insurrection Act.’”
The Insurrection Act was passed in 1792 during the administration of George Washington, updated in 1807 and 1871, and is extraordinarily broad, so much so that for years good-government groups like the Brennan Center for Justice have been calling for it to be updated.
It’s the only exception to the Posse Comitatus Act, which forbids the U.S. military from engaging in domestic law enforcement activity. Under the Insurrection Act, the President could order the entire U.S. military into the streets, with live ammunition and the power to both make arrests and kill protestors who resist.
Section 253 of the Act, for example, permits the president to send troops to put down “any insurrection, domestic violence, unlawful combination, or conspiracy” that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”
Notice the word “conspiracy” there; as the Brennan Center says:
“This provision is so bafflingly broad that it cannot possibly mean what it says, or else it authorizes the president to use the military against any two people conspiring to break federal law.”
And you can bet that Donald Trump would do just that. America would be under martial law—under the control of the U.S. military, complete with curfews and a total ban on public demonstrations, enforced by soldiers wielding fully automatic weapons and live ammunition—all within a day or two.
Trump could have done it, too, if the military had been willing to go along with him. The Supreme Court decided early on that this question is for the president alone to decide. In 1827 the Supreme Court ruled that “the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.”
It would have been the end of America as we know it. And Trump, Giuliani, and Eastman all knew it. And wanted it.
Trump had already drafted an executive order bringing something close to it into being, as I noted here two weeks ago when speculating about why Tommy Tuberville was keeping the upper ranks of the military vacant in case Trump wins in 2024.
General Mike Flynn, after having been convicted of lying to the FBI and concealing knowledge about Russian involvement in the Trump campaign, was pardoned by Trump in late November, 2020, after Trump had lost the election. Flynn immediately took the position that Trump should declare martial law, retweeting a call:
“to immediately declare a limited form of Martial Law, and temporarily suspend the Constitution…”
The reason, Flynn’s retweet noted, was because Democrats had stolen the election from Trump and were plotting to turn America into a communist state:
“We have well-funded, armed and trained Marxists in ANTIFA and BLM strategically positioned in our major cities acting openly with violence to silence opposition to their anti-American agenda.”
This would have gone way beyond just re-doing an allegedly corrupt election. After stealing the votes of 81 million Americans, they wanted to lock down the country with armed force to end all dissent directed against Trump or the GOP.
Trump had essentially rehearsed this during the summer of 2020 when he ordered troops and helicopters to attack peaceful protestors in Lafayette Square, across from the White House, so he could do a photo-op with an upside-down bible.
Former Defense Secretary General James Mattis was so horrified by that he said of the incident:
“When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens—much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.”
Trump’s co-conspirators around January 6th called for a purge of our government, like the one Trump acolyte Johnny McEntee began when he was the “Deputy President” to Trump, searching social media accounts for federal employees he could fire because they’d “liked” things posted by Democrats or liked “leftwing entertainers like Taylor Swift.”
Most chilling—and not yet included in the indictment—was the role of the quislings in the GOP who were ready and eager to help Trump end American democracy.
If Mike Pence was hanged or otherwise incapacitated, Chuck Grassley told a reporter for the Iowa Capital Dispatch he was next-in-line in Senate seniority and so would take over the proceedings, presumably to accept the fake electors from Senator Ron Johnson and thus hand the election to Trump.
On January 5th, the day before a mob built a gallows and tried to find Pence for over an hour, Grassley said:
“Well, first of all, I will be—if the Vice President isn’t there and we don’t expect him to be there—I will be presiding over the Senate.”
Challenging the result of an election like Trump was proposing isn’t such an unusual thing, Grassley argued, telling reporters:
“First of all, it’s a legal process under the law and under the Constitution, for these folks to do what they’re doing. It was done by the Democrats in 2004 and I think one other time. People that are finding fault with Republicans doing it shouldn’t do it when it’s done by Democrats.”
Wisconsin Republican Senator Ron Johnson was also apparently in on the plot. As the indictment lays out:
“On the morning of January 6, an agent of the Defendant contacted a United States Senator [Johnson] to ask him to hand-deliver documents to the Vice President. The agent then facilitated the receipt by the Senator’s staff of the fraudulent certificates signed by the Defendant’s fraudulent electors in Michigan and Wisconsin, which were believed not to have been delivered to the Vice President or Archivist by mail.”
In addition, eight Republican senators voted to sustain objections to the actual electors: Tommy Tuberville, Rick Scott, Roger Marshall, John Kennedy, Cindy Hyde-Smith, Josh Hawley, Ted Cruz, and Cynthia Lummis.
Ted Cruz took to the floor of the Senate and called for a 10 day “emergency audit” of the election, which could have provided Trump with enough time to roll out his military declaration and seize complete control of the nation. Co-conspirators or useful idiots?
Around 2 pm, in the middle of the riot, Trump called Senator Mike Lee, thinking he had the private cell number for Tommy Tuberville.
In a 10-minute conversation, Trump asked Lee to join Tuberville and others in objecting to the actual electors; the call was cut short when the senators were evacuated because the mob had just broken into the Senate chambers.
Then Rudy Giuliani called Lee a few minutes later, this time leaving a voicemail for Tuberville on Lee’s phone saying:
“Sen. Tuberville? Or I should say Coach Tuberville. This is Rudy Giuliani, the President’s lawyer. I’m calling you because I want to discuss with you how they’re trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you.”
Tuberville, of course, had been in Trump’s private quarters at a war room meeting at the DC Trump Hotel late into the evening of January 5th.
And then there were the House members.
Jeffrey Clark, who Trump wanted as Acting Attorney General because he’d promised to follow through on martial law, was recommended to Trump by Rep. Scott Perry, who was deeply involved in encouraging Mark Meadows and Trump to “stop the steal” and seize control of America.
Lauren Boebert was live-tweeting Nancy Pelosi’s position in the Capitol, after tweeting:
“Today is 1776.”
The day before the attack, Georgia Republican Rep. Barry Loudermilk escorted a group of soon-to-be insurrectionists through the bowels of the Capitol, where they extensively photographed escape routes and other infrastructure.
Alabama Republican Congressman Mo Brooks told Trump’s mob:
“Today is the day American patriots start taking down names and kicking ass. Are you willing to do what it takes to fight for America? Louder! Will you fight for America?”
During the riot, Rep. Paul Gosar tweeted:
“Biden should concede. I want his concession on my desk tomorrow morning. Don’t make me come over there.”
After the January 6th coup attempt, Perry—along with Andy Biggs, Paul Gosar, Rudy Giuliani, Mark Meadows, Mo Brooks, Matt Gaetz, Louie Gohmert, John Eastman and Marjorie Taylor Greene—sought a pardon from Trump for their criminal role in the effort to overthrow the U.S. government.
The bottom line here is that Trump and his co-conspirators—a group that clearly extends far beyond the six named in Jack Smith’s indictment—were not only willing but planning to recreate Reagan’s and Nixon’s Kent State slaughter, should anybody protest their takeover of the nation.
If nothing else, that is something we all must remember, and history must record.