Tucked 81 paragraphs into the election crimes indictment of Donald Trump, there’s a reference to a plot even more sinister that was never fully carried out.
Prosecutors outline an interaction in which a senior Trump DOJ official suggests that Trump’s closest allies are counting on the Insurrection Act to stay in power.
The 1807 law gives the President the power to deploy the military for domestic law enforcement purposes. Trump’s allies allegedly urged him to use the law to reverse his loss.
But the apparent mention of the Insurrection Act by Trump’s main DOJ crony suggested another use of the law — putting down protests if Trump stayed in the White House past January 20 — and raises new questions about how deeply the previous administration may have considered using force to stay in power.
The indictment identifies the person who made the remark as “Co-Conspirator 4,” but the description closely matches that of Jeffery Bossert Clark, the DOJ environmental division chief who took Trump up on his offer to use the DOJ to reverse his loss.
Per the indictment, the conversation in which the Insurrection Act was referenced took place on January 3 — three days before the January 6 assault on the Capitol building.
Clark was allegedly speaking with Patrick Philbin, a deputy White House counsel who prosecutors describe has having told Trump that “there is no world” in which he could stay in office past Jan. 20, 2021.
At the time, Clark was at the height of his involvement in Trump’s effort to reverse his loss.
The same day, Smith said, Clark had accepted an offer from Trump to become acting attorney general.
Clark planned to send letters to state legislatures saying that the DOJ had found evidence suggesting that the election results were in doubt, while advising state lawmakers to consider tossing out Biden’s electors and replacing them with the fake electors slates that the Trump campaign had created.
Philbin and Clark spoke in the afternoon on Jan. 3, Smith specified in the indictment.
It was during that time that, a Senate investigation found in 2021, DOJ officials were scrambling to find a way to prevent Trump from appointing Clark; Deputy Attorney General Richard Donoghue was packing up his office, while one deputy prepared a written statement announcing the resignation of the entire DOJ leadership over Trump’s “direct instructions to utilize the Department of Justice’s law enforcement powers for improper ends.”
In that environment, Philbin purportedly told Clark that fraud had not impacted the election outcome. Philbin added to Clark that, if Trump were to succeed in staying in office, there would be “riots in every major city in the United States.”
Clark allegedly replied: “Well…that’s why there’s an Insurrection Act.”
Apart from the chaotic environment within the DOJ, Clark’s remark came as Trump’s acolytes publicly discussed using the 1807 law in various ways to block the transfer of power.
Trump had raised the idea of invoking the law throughout 2020 as a way to have the military violently quell protests over the May 2020 killing of George Floyd.
But ex-National Security Adviser Michael Flynn — a former general — raised “martial law” in the context of the election in December 2020 on Newsmax.
“He could immediately on his order seize every single one of these machines around the country on his order,” Flynn said. “He could also order, within the swing states, if he wanted to, he could take military capabilities and he could place them in those states and basically rerun an election in each of those states.”
Flynn’s statement on Newsmax was serious enough for the then-Army Chief of Staff and Secretary of the Army to issue a joint release reminding everyone that “there is no role for the U.S. military in determining the outcome of an American election.”
But fears over the use of the Insurrection Act continued to percolate.
Trump hosted a meeting at the White House later in December in which Flynn again advocated for Trump to invoke the Insurrection Act in order to seize voting machines and “rerun” the election.
On Jan. 3, the same day that Jeff Clark made his statement about using the act to put down protests against Trump successfully stealing the election, the Washington Post ran an op-ed from every living Secretary of Defense in which they affirmed that the military “had no role in election disputes.”
Military leaders subsequently testified that they hesitated to respond to the violence on January 6 largely because they were afraid of how Trump and those around him might use the military, pursuant to the Insurrection Act.
Acting Secretary of Defense Christopher Miller told the House Oversight Committee in May 2021 that he had “concerns regarding the appropriate and limited use of the military in domestic matters” that day, which had been heightened “by commentary in the media about the possibility of a military coup or that advisors to the President were advocating the declaration of martial law.”
Smith’s description of Clark’s remarks about the Insurrection Act, though bare of other details, raises further questions about how deep discussions among Trump’s acolytes were around using the law.
Clark’s employer, the Center for Renewing America, issued a statement on Wednesday responding to the indictment.
“These attempts to criminalize legal work and political viewpoints disfavored by the regime show just how far the Deep State has gone in its journey to turn the DOJ on Americans they disagree with,” the statement reads.