Does Biden Have the Authority To Arrest MAGA?
…when in Cases of Rebellion or Invasion the public Safety may require it.
Declaring war
I come full circle on this response and just want to encourage you with some substance that we are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.
This is what Kevin Roberts of the Heritage Foundation told to U.S. Representative Dave Brat on Steve Bannon’s podcast (Bannon could not attend, he is in prison). His words, dripping with contempt for the American system, issued an undeniable warning. He and his conspirators intend to overthrow the government, and any who resist will face the barrel of a gun.
The gauntlet is, again, thrown down.
This generation of self-described revolutionaries have not been hiding the message. On September 7 of last year, Mike Huckabee went on his show to proclaim that if Donald Trump is convicted (of his numerous accused crimes) and thereby cannot be president again, 2024 will be the last election “decided by ballots rather than bullets.”
Earlier that year, Arizona Congressman Andy Biggs stated, “We have now reached a war phase. An eye for an eye.” That summer Matt Gaetz told a crowd, “I cannot stand these people that are destroying our country. They are opening our borders. They are weaponizing our federal law enforcement against patriotic Americans who love this nation as we should… But we know that only through force do we make any change in a corrupt town like Washington, D.C.” Josh Hawley raised his fist to insurrectionists seeking to hang Vice President Mike Pence.
In addition to these calls for violence or force, the Heritage Foundation has been engaged in its Project 2025. Staffed by many former Trump administration officials, Just Security describes its purpose:
It details a program to consolidate power in the executive branch, deconstruct the federal administration, and strip remaining agencies of their independence. It proposes to dismantle or radically overhaul the Departments of Justice and State; eliminate the Departments of Homeland Security, Education, and Commerce; radically repurpose other agencies; and eviscerate the professional civil service.
Axios learned of some of the personnel this project proposes to install should it be able to execute its plan. Many of them are felons or currently indicted, some for attempting to overthrow the government in 2020. The plan also calls for the release of the January 6 rioters, the first foot soldiers of Trump’s attempted rebellion.
Putting down rebellions
The United States has dealt with such rebels before. The President whose historical legacy rises above partisanship perhaps more than any other, George Washington offered this advice to anyone considering joining the Whiskey Rebellion during his tenure:
I… warn all persons, whomsoever and whersoever, not to abet, aid, or comfort the insurgents aforesaid, as they will answer the contrary at their peril; and I do also require all officers and other citizens, according to their several duties, as far as may be in their power, to bring under the cognizance of the law all offenders in the premises.
This is the message needed now.
Roberts and his collaborators have declared war. It is time to treat them accordingly. Returning to George Washington, the call to force is justified when all other overtures have failed:
“to take care that the laws be faithfully executed;” deploring that the American name should be sullied by the outrages of citizens on their own Government… that those who having offended against the laws have since entitled themselves to indemnity, will be treated with the most liberal good faith, if they shall not have forfeited their claim by any subsequent conduct, and that instructions are given accordingly.
Go willingly or by force, but go you will.
Putting down rebellions in Lincoln’s time
President Abraham Lincoln exercised executive authority to round up and detain those advocating the country’s demise in the Civil War era. In an address on July 4, 1861, he proclaimed:
Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?
He was addressing, at least in part, Supreme Court Chief Justice Roger Taney, a Southern sympathizer, who complained a little over a month before that Lincoln acted “in subordinate to judicial authority” by the force available to the executive branch, when one of Lincoln’s commanders disregarded a writ of habeas corpus issued by the district court.
The court issued the writ ordering General George Cadwalader to appear in Maryland’s district court to explain why he would not free John Merryman. Union troops had seized Merryman from his home without a warrant on suspicion of conspiring with Southern rebels.
When Cadwalader replied with a refusal to comply based on Lincoln’s order, Taney issued a judicial opinion just three days later. In it, he engaged in a long exposition about the authority supporting the suspension of the Writ, purporting that such authority belonged to Congress alone, and opining that Lincoln had “disregarded and suspended” the law. He further declared that:
If the authority which the Constitution has confided to the judiciary department and judiciary officers, may thus, upon any pretext, or under any circumstances, be usurped by the military power at its discretion, the people of the United States are no longer living under a government of laws.
Taney conveniently left out of his opinion that Merryman served as an officer in a pro-southern local militia unit at the time of his arrest, and was involved in destroying railroad lines to inhibit troop movements. He was not a doe-eyed innocent. In any event, treason charges against Merryman were later dismissed. But his case would not be the last involving suspension of the Writ by Lincoln.
Horace Binney, a Philadelphia lawyer and politician, and a former student of Jared Ingersoll, one of the members of the Constitutional Convention, wrote a defense of Lincoln’s suspension of the Writ the following year. He noted that it is the executive who is dutifully bound by his “Article II powers to preserve, protect, and defend the Constitution and to take care that the laws be faithfully executed.” Suspending the Writ, for Binney, constituted an element of defense. Moreover, he dismissed the import of the Suspension clause’s location under Article I as a matter of style not prescription, an argument for which he provided ample justification.
In the year after Binney published his treatise, Lincoln penned a letter to Matthew Birchard, a retired Ohio Supreme Court judge, in which he averred that military arrests and detentions differ from criminal ones in that the former “have been for prevention, and not for punishment — as injunctions to stay injury, as proceedings to keep the peace.” Another nod to the executive nature of suspending the Writ.
James Dueholm, who in 2008 carefully analyzed Binney’s claims and the disputes of his contemporaries, also concluded that the argument that the Suspension clause is an authority belonging to Congress falls short. He situated the act of suspension through a comparison of the ability to declare war, versus the ability to wage it:
The power to “provide for calling forth the militia” does not appear to authorize Congress to call the militia to federal service, but only to authorize the president to do so. But even if Congress has the power to order a call-up, the militia once called would be subject to the president’s command under his commander-in-chief power. If anyone were to direct militiamen to hold prisoners without benefit of the writ of habeas corpus because the public safety required it, it would be the president.
Dueholm ended his treatise with a very astute, and pointed observation:
Suspension of habeas corpus is a constitutionally created weapon that can be used in, and only in, civil war and invasion. The president can wage war against rebels and invaders without a congressional declaration of war. It would be an absurd reading of the Constitution to conclude that the president needs congressional authority to deploy a constitutional weapon designed specifically for use in wars that the president can wage without congressional authority.
The President’s authority and newfound immunity
The extent of the authority of the President to unilaterally suspend the Writ has thus never been fully decided. The Supreme Court of Wisconsin considered it in 1863, but left open many questions in part owing to the facts before them. For example, the justices held that Wisconsin did not sit within the “theater of war” and that the ongoing ability of civil authorities to maintain order meant that the state had not entered a disposition of martial law. The Court did seem to require that for these reasons Congress must authorize the suspension of the Writ, but that issue was never fully fleshed out, nor would it be as Congress did in fact grant such an authorization that same year.
Daniel Farber writing in 2018 noted that Lincoln undertook some actions out of necessity and adherence to his oath of office, despite their probable illegality. At the time, the primary check to taking unlawful measures was tort law in which the offender might be held personally liable. Lincoln hoped, according to Farber, to receive later Congressional ratification thereby absolving him of liability, which he did.
James Pfander has shown that concerns for liability vastly diminished during the so-called War on Terror. In Ziglar v. Abbasi, the US Supreme Court rejected a liability suit involving a “post-9/11 sweep of immigrants in the United States, even if the sweep was based on constitutionally impermissible grounds and involved unconstitutional mistreatment of detainees.” Specifically, the Court held:
Because those claims challenge major elements of the Government’s response to the September 11 attacks, they necessarily require an inquiry into national-security issues. National-security policy, however, is the prerogative of Congress and the President, and courts are “reluctant to intrude upon” that authority absent congressional authorization.
That case exemplified the general tenor of the Court on similar matters.
Moreover, within the infamous immunity case recently decided by the Supreme Court regarding criminal liability as it pertained to charges against former President Donald Trump, the Court restated the President’s immunity from civil liability as first determined in Nixon v. Fitzgerald, 457 U.S. 731 (1982), and reaffirmed in Clinton v. Jones, 520 U.S. 681 (1997). Thus, the tortious concerns of the past are no more.
As the legal situation stands now, the President only faces legal peril in the event that his acts fall outside the gambit of his “official duties.” So the question remaining is whether the summary arrest of insurrectionists could fall under this category.
Immunity makes it moot
In Trump v. the United States, the Court summarily dismissed liability — civil or criminal — for any act falling with the President’s “preclusive or exclusive” authority. In short, this means any action taken specifically authorized by or accounted for in the Constitution is an undisputed Presidential power and immune from either prosecution or inspection by the judiciary. The Court treated this as lacking any gray area, though the Constitution is rarely so precise.
Next, the court pondered the more ambiguous areas in which a President may act. Here, the Court worried over the potential for “intrusion on the authority and functions of the Executive Branch.” In the Court’s view, although the chances of a specious criminal charge levied against a President are quite small, if he or she is “routinely subjected to scrutiny in criminal prosecutions,” the subsequent effect will be a quisling Executive, incapable of taking actions in the public interest, always “apprehensive that criminal penalties may befall him upon his departure from office.”
Thus, for any official act, the President remains presumptively immune, unless a prosecution for engaging in alleged lawlessness under the auspices of officiality will not result in any intrusion upon the authority of the Executive Branch, a virtually impossible prospect.
Determining the officiality of an act not explicitly prescribed in the Constitution clearly vexed this Court. In light of this apparent difficulty, the Court leaned on the “outer perimeter” of a President’s duties as the boundary where presumptive immunity begins. This nebulous area includes those actions “not manifestly or palpably beyond [his] authority.”
One thing the majority was sure of, however, was that the President’s motivation itself could not come into consideration when attempting to distinguish between the official and unofficial status of an act. Similarly definitive, the illegality of an action could not provide the basis for the determination. And once the determination is in fact made, any vestiges of the official acts cannot be used to prove any ostensible unofficial acts.
As the dissent aptly pointed out, the majority held that “a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution.” Because the Court eliminated the ability to analyze the President’s motive, he need only characterize his act sufficiently as ‘official’ and all discussion of liability is finished.
Arresting MAGA
The discussion above makes it patently obvious that if President Biden chose to, he could order the summary arrest of members of Project 2025 or MAGA. Justifying such a move would readily fall within the foundational duties of the Executive Branch: “preserve, protect, and defend the Constitution and to take care that the laws be faithfully executed.” Under the current rendition of immunity, as interpreted by the Supreme Court, this is the very essence of an official act.
Through an Executive decree, the President could determine that the violence and fraud in the 2020 election proved the seditious intent of the current plotters, especially given their pronouncement about wanting to free January 6 participants who imperiled public safety, and their inclusion of those already indicted, convicted, or confessed for their role in the fraudulent prong. As noted in the Wisconsin Supreme Court Case, the inability of civil authorities to stop outrages against the Republic, in this case the January 6 event and the subsequent assault against elections, presages an imminent risk to the next conducting and counting of the vote.
As numerous courts have adjudged Donald Trump himself as the instigator and arguable leader of this conspiracy, he too could be imprisoned for the ongoing threat he poses. And as Lincoln proved, the complaints of any Court about ignoring Writs are immaterial, whether the President supplies legal authority to suspend them or not.
After all that, even if at some time later the Courts do find all of these actions illegal, it will make not a bit of difference. The highest Court has already conferred immunity on the Executive, irrespective of whether his acts violate any law, so long as they remain within his official gambit.
Because protecting the Republic ranks as number one among the President’s duties, the remainder of any discussion about potential consequences would be moot. So, as to the opening question whether Biden could arrest MAGA, the answer is unequivocally yes. And the only thing that could be done about is for the House to impeach him and the Senate to remove home, also a nearly impossible prospect.
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