Former New York mayor Rudy Giuliani said that if then President Donald Trump had imposed martial law in an effort to overturn the 2020 election results, the former president and many of his aides would have wound up behind bars.
That’s according to Patrick Byrne, the former head of Overstock, who told The New York Times that Giuliani recently explained to him that he advised Trump against imposing martial law because “we would all end up in prison.”
The Times has previously reported on Giuliani’s opposition to instituting martial law. Despite his own endorsement of outlandish conspiracy theories about voter and election fraud, he became alarmed when former national security advisor Michael Flynn and former Trump lawyer Sidney Powell suggested imposing martial law.
According to the paper, Flynn, Powell, and Byrne went to the Oval Office on December 18, 2020 and laid out a plan that involved deploying the military to seize voting machines and ballots in key battleground states. Giuliani waited until Flynn and Powell had left the Oval Office and told Trump that their plan would get him impeached, the report said.
Giuliani’s lawyer did not immediately respond to The Times’ request for comment.
Trump ultimately heeded Giuliani’s advice and did not impose martial law. But he did consider scenarios in which federal agencies like the Justice Department, the Department of Homeland Security, and the Department of Defense would seize voting machines, the report said.
In one case, Trump met with then attorney general William Barr in the Oval Office after the election and asked him to use the Justice Department to take voting machines. But Barr immediately rejected the request.
In December, roughly six weeks after Election Day 2020, Trump told Giuliani to ask if the DHS had the legal power to seize voting machines in key battleground states, The Times previously reported. But the department’s acting deputy secretary said he didn’t have that authority.
The House select committee investigating the Capitol riot also recently obtained a draft executive order that directed the Secretary of Defense to “seize” voting machines. It’s unclear who wrote the draft, and The Times reported that Trump had rejected a request by his outside advisors to use the Pentagon to take control of the machines.
Trump ultimately did get impeached a second time after the House of Representatives accused him of inciting the failed insurrection on January 6, 2021.
Flynn, meanwhile, repeatedly called on Trump to use the military to stay in power. The same week that he and Powell went to the Oval Office to urge Trump to lay out their proposal, Flynn appeared on the far-right outlet Newsmax and said Trump should deploy the military and hold another election.
But those remarks aren’t based in reality.
Despite Republican claims of fraud and election rigging, nonpartisan officials and election experts confirmed that the 2020 election was the safest and most secure in US history. The president does not have the power to unilaterally cancel, delay, postpone, or change the date of an election, even if he declares martial law. As Business Insider previously reported, that power lies with Congress.
Declaring martial law also does not suspend the Constitution, and the military has no role in administering elections. Even if it did, it would not be able to run new elections because the right to vote is not specified in the Constitution or by a federal statute.