Out of the many new details revealed in former President Donald Trump's third indictment, the most chilling one may be a discussion between Trump's White House deputy counsel Patrick Philbin and "Co-Conspirator 4" — who, based on the Jan. 6 Committee report, appears to be Jeffrey Clark, a former top Justice Department official in the Trump administration. That discussion, in which the man believed to be Clark suggests using the Insurrection Act, underscores how Trump's inner circle wasn't simply seeking ways to delay Trump's departure from the White House, but actively gaming out how he could stay in power even in the face of a mass movement to restore democracy — using military force.
According to the indictment, Philbin repeatedly discouraged Trump and his loyalists from trying to stay in the White House beyond the end of his term. In December, he allegedly told Trump, “There is no world, there is no option in which you do not leave the White House [o]n January 20th.” Then on the afternoon of Jan. 3, Philbin apparently tried to dissuade “Co-Conspirator 4” from trying to assume the role of acting attorney general as part of a reported bid to overturn the election results with Trump. He allegedly told that person that “there had not been outcome-determinative fraud in the election and that if the Defendant [Trump] remained in office nonetheless, there would be ‘riots in every major city in the United States.’” The indictment alleges that Clark responded, “Well ... that’s why there’s an Insurrection Act.”
This stunning statement marks not just an authoritarian posture, but an authoritarian strategic vision.
This stunning statement marks not just an authoritarian posture, but an authoritarian strategic vision. The Insurrection Act allows the president to deploy the military domestically to put down a rebellion or unrest. The law has been invoked a handful of times in the past century, most recently by then-President George H.W. Bush to put down the Los Angeles riots in 1992 after the police beating of Rodney King. Civil liberties experts have criticized the law for giving the president too much power: The Brennan Center for Justice's Joseph Nunn has described it as "ripe for abuse," cautioning against the president's "almost limitless discretion to deploy federal troops in cases of civil unrest" under the law and Supreme Court rulings on presidential power. In many ways the American public is at the mercy of the president to use the law in discerning and limited ways to deal with emergencies, not as a tool for quashing dissent.
It appears that the unnamed “Co-Conspirator #4” was inclined to exploit the law's extraordinary power as a way to quell massive resistance and consolidate power in the wake of a Trump coup.
Would the military have obeyed and carried out Trump's orders? It's impossible to know, but I am somewhat skeptical. By the end of his presidency, top military leaders and most of the military's officer corps disapproved of Trump's norm-breaking political style, and it's possible they would've seen themselves as the key bulwark against a coup. When Trump floated the idea of using the Insurrection Act in the summer of 2020 to suppress Black Lives Matter protests, then-Defense Secretary Mark Esper publicly broke with Trump on the policy, arguing that troops should not be deployed to the streets. And Chairman of the Joint Chiefs of Staff General Mark Milley reportedly resisted Trump's demands to shoot protesters in a show of force that year, and he apologized for appearing with Trump in Lafayette Square after protesters were cleared out in June 2020 because, he said, it “created the perception of the military involved in domestic politics.” While it's unclear how the military would've responded to an attempt by Trump to occupy the White House beyond his term, it's not difficult to imagine at least some objections among leadership to carrying out the Insurrection Act as a means for him to retain power, especially given how clear Trump's lies about the election were.
Regardless of whether or not this was a practical plan, it's important from a legal and historical perspective to understand the state of mind of Trump's inner circle when analyzing the significance of the Jan. 6 insurrection. It requires holding multiple, conflicting ideas in one's mind at the same time. Yes, Trump was messy, undisciplined and downright foolish in his many schemes to convince the public that the 2020 election had been rigged. At times it seemed like he was throwing a tantrum more than attempting a coup.
But at the same time, he and his inner circle also displayed self-awareness, planning, careful use of suggestive language and apparently thought about the logistics of dealing with resistance to a coup. These two realities are not mutually exclusive, and even if Trump never got very close to actually pulling off his plans, the fact that he even made plans is critical to understanding the dangers of his movement.
