Dear Reader,

Two weeks ago, former President Donald Trump made a startling statement during a rally with his supporters: He said that if he becomes president in 2024, he would consider pardoning January 6 defendants who have been prosecuted and convicted. Trump’s promise is a harbinger for how Trump will (once again) weaponize the powers of the presidency to promote lawlessness and exact revenge if he is elected to another term. But his words also presage the manifestation of another abuse of power that the Framers of the Constitution had in mind when they drafted the document, and of which we saw a glimpse on January 6.

When I teach my National Security Law class, I ask my students to read the Constitution through a national security lens. To that end, we pause on two military appropriations clauses in Article I, which outlines Congress’ powers. The first is the Army Clause, which states that Congress has the power “[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two years.” The second is the Navy Clause, which simply states that Congress has the power “[t]o provide and maintain a Navy.” Why, I ask my students, would the Framers include a two-year limit for appropriating funding for the army, but make it indefinite for the navy?

My students typically home in on the reasons for this distinction pretty quickly. For one thing, in the eighteenth century, building a navy was a long-term enterprise. In addition, the navy would, by definition, counter threats external to the U.S. By contrast, a “standing army” could be assembled very quickly, and could be turned against the citizenry. The Framers would have also remembered Oliver Cromwell, who mobilized the army against his own government and, of course, King George III, whom the Framers accused in the Declaration of Independence of having “kept among us, in times of peace, Standing Armies against the consent of our legislatures.” In short, the drafters of the Constitution understood quite well the dangers of having a strong centralized executive in charge of an easily-mobilized militarized force, and wanted to ensure some checks on that power.

Today, this fear seems mostly farfetched. Although the size of the army has grown exponentially since George Washington’s day – from about 800 members to close to half a million active duty personnel – it is highly regulated, managed, and professionalized. To be sure, the threat of radicalization within the army, and the military generally, is growing: Of the people charged with federal crimes related to January 6, 12% are military veterans or active duty servicemembers. But the fact that the Department of Defense is aware of the problem, and has ordered changes to combat it, demonstrates how the bureaucratization of the military helps it stay true to its core mission. Indeed, despite President Trump’s attempts to install loyalists in the highest ranks of the DoD during his last months in office, there is some evidence that the lack of military response on January 6 was partly because military leaders themselves were worried that Trump might attempt to turn the armed forces against Congress or even citizens in an attempt to stay in power. In the immediate aftermath of January 6, the Joint Chiefs of Staff issued a statement to the entire armed forces, reminding them of their oath to protect the Constitution and reaffirming that President-elect Joe Biden would soon be their commander in chief.

In short, it would be an uphill battle for the president to weaponize the standing U.S. Army in the way that the Framers feared. But what about a shadow army?

Last year, the Southern Poverty Law Center identified 169 militia groups across the country, which are defined as a subset of anti-government groups who are armed and engage in paramilitary training. Experts who study these groups note that they have historically operated mostly independently of each other, and though they are all generally anti-government, they have differences in ideologies and tactics. January 6, however, demonstrated that President Trump not only provides them with a unity of purpose, but also the opportunity to combine forces. There is evidence, for example, that two militia groups, the Oath Keepers and the Proud Boys, may have coordinated in the days leading up to January 6. More importantly, members of these groups believed that they were doing Trump’s bidding: Oath Keepers members indicated that they were awaiting “direction” from Trump, and their leader, Stuart Rhodes, indicated that the cache of weapons stored outside of the city was ready “if the president calls us up.”

Trump understands that he has power over these militia groups, and can deploy them at his pleasure – and that’s what makes his rhetoric so dangerous. By dangling pardons, Trump is signaling to the militia groups that committed violence on his behalf that their loyalty will be rewarded, and that they won’t suffer punishment. When he exhorts his supporters to mount large “protests” if prosecutors in New York or Atlanta try to bring charges against him, he is giving them a nod to use violence in his name – much like he told the Proud Boys to “stand back and stand by” during the presidential debates. It may be true that in the end, Trump’s shadow army won’t be a match for law enforcement or the real military. But as we saw on January 6, he has the power to create death and destruction, as well as to bring our democratic processes and the rule of law to a standstill.

One silver lining is that most of these militias are not lawful. The Institute for Constitutional Advocacy and Protection (ICAP) has issued a report that details state constitutional and statutory prohibitions on private militias. All fifty states have laws on the books restricting militia activity, though they have not been rigorously enforced in the past. The fact that these groups see Trump as their commander in chief, however, should change the assessment of the threat they pose. Unified by a common leader who holds a national spotlight and the means to communicate to everyone almost instantaneously, these militia groups are a facsimile of what our Framers were worried about in a would-be tyrant in control of a standing army without any check on that power. When asked the question of who is in charge of suppressing insurrections or repelling invasions, Rhodes, the Oath Keeper, replied, “It’s not the standing army, it’s the militia.” Under Trump, they are one and the same.

Stay Informed,

Asha