Unlawful martial law

There is an alarming news report of a White House meeting on Friday that included bringing up of what Michael Flynn had suggested earlier in the week that Trump could invoke martial law as part of his efforts to overturn the election that he lost to President-elect Joe Biden. The report said it wasn't clear whether Trump endorsed the idea, but others in the room forcefully pushed back and shot it down. https://www.cnn.com/2020/12/19/politics/trump-oval-office-meeting-special-counsel-martial-law/index.html

This alarming news report raises questions of whether a martial law that is declared by the President can be unlawful, whether such declaration can be criminally unlawful, whether there can be a criminal conspiracy to bring about a criminally unlawful declaration of martial law, whether there can be a criminal attempt to bring about a criminally unlawful declaration of martial law, and, although DOJ policy is that the President may not be indicted for a crime committed while President, whether other actors in the criminal conspiracy or the criminal attempt can be criminally indicted and prosecuted.

It seems clear that the answer to the first question is that a martial law that is declared by the President can be unlawful, and a case may be brought before a court that has an outcome that the court declares the martial law was unlawful.

In the days ahead, more attention needs to be given by the Department of Justice, U.S. attorneys and others about whether there may be a criminally unlawful declaration of martial law and criminal conspiracy or attempt about the same.