“Nightmare scenario”: Legal scholars alarmed over Trump’s “plot to abuse his power” for revenge

Donald Trump and his allies are plotting to wield federal power against critics and opponents if he secures a second term, with the former president targeting individuals for investigation or prosecution, while his associates are considering invoking the Insurrection Act to deploy the military against civil demonstrations on his first day back in office, The Washington Post reported.

Trump has told advisers and friends in private that he wants the Justice Department to investigate former officials and allies from his administration who have become critical of his time in office, including former chief of staff John Kelly, former Attorney General William Barr, as well as his ex-attorney Ty Cobb and former Joint Chiefs of Staff chairman Gen. Mark Milley, the Post reported. 

Publicly, the former president has also warned about designating a special prosecutor to “pursue” President Joe Biden and his family, making corruption accusations against him despite any evidence. The ex-president has been especially vocal on his social media platform Truth Social, making claims about Biden being “the most corrupt president in the history” of this country, who needs to be investigated. 

“The promises that Trump and his allies are making are a perversion of the U.S. Constitution, the principles of this nation, and of democracy as we practice it in the U.S. Benjamin Franklin’s warning that the Constitutional Convention crafted a republic ‘if we can keep it’ will be tested to the max,” Mary Guy, a professor of public administration at the University of Colorado Denver, told Salon. 

She added that “a Trump administration will wreak havoc before brakes can be applied.”

In order to enable Trump to exert influence over Justice Department decisions, his associates have been devising strategies to bypass 50 years of policies and practices designed to insulate criminal prosecutions from political influence, the Post reported.

A significant portion of Trump’s second-term planning has been informally delegated to a network of right-wing groups, working together on a sweeping new initiative known as “Project 2025” — aimed at empowering the next GOP president to take control, reform, and eliminate what Republicans criticize as the “deep state” bureaucracy. Democracy experts have warned that Project 2025 has the potential to erode the country’s system of checks and balances. 

These groups are creating a strategy, with draft executive orders, to use the military under the Insurrection Act, a source engaged in these discussions told the Post. The law, which was last modified in 1871, grants the president the authority to employ the military for domestic law enforcement.

“This is the nightmare scenario that to millions of Americans is unfathomable but realistically possible,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. “It is also the scenario that millions of Americans look forward to with glee and the opportunity for retribution against the enemies of Trump.”

Ultimately, the Supreme Court will “need to step up and prevent Trump’s plot to abuse his power,” Gershman said. Invoking the insurrection act and the ex-president’s plan to punish critics is “obviously unconstitutional.”

The key figure crafting strategies to employ the Insurrection Act under Project 2025 is Jeffrey Clark, the former assistant attorney general who is currently facing conspiracy and racketeering charges, alongside Trump, in the election interference case in Georgia. 

The Insurrection Act grants the president the authority to use the U.S. military against Americans inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations.

Typically the military is barred from law enforcement activities, Gershman explained. The law implements Congress’ constitutional authority under the Constitution to “call forth the Militia to execute the Laws of the Union.” 

---

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

---

“The Insurrection Act which Trump’s minions continue to reference was designed to protect the country against men such as Trump, not empower them,” Jamie White, an attorney who handles criminal defense and civil rights cases, told Salon. “The act empowers the president to use the military in desperate times, not provide the power to silence and endanger law-abiding citizens. Moderate US citizens should not sleep on this. The world is watching.”

During the last year of the Trump presidency, a faction of his supporters encouraged him to invoke the Insurrection Act to address the ongoing protests after the murder of George Floyd in the summer of 2020, but he never did it. Trump has since expressed regret about not employing more federal force.

“The Insurrection Act does not define ‘insurrection,’ ‘rebellion,’ ‘domestic violence,’ or any of the other key terms used in setting forth the prerequisites for deployment,” Gershman said. “While there may be rare circumstances in which such authority might be necessary, the law, which has not been updated in over 150 years, is dangerously overbroad and can easily be abused by an authoritarian president such as Trump.”

If Trump is elected to a second term, things will look much different, White explained, adding that the former president has not expressed his intent with the “dog whistles” he used in the past.

“Trump is using a bullhorn and being very clear that he will curtail liberties in manners that have not been pronounced since before the Civil War,” White said.