by Ryan Goodman and Justin Hendrix
December 21, 2021
Attack on US Capitol, Department of Defense (DoD), House Select Committee on January 6, Insurrection Act, National Guard, Posse Comitatus
by Ryan Goodman and Justin Hendrix
December 21, 2021
One of the most vexing questions about Jan. 6 is why the National Guard took more than three hours to arrive at the Capitol after D.C. authorities and Capitol Police called for immediate assistance. The Pentagon’s restraint in allowing the Guard to get to the Capitol was not simply a reflection of officials’ misgivings about the deployment of military force during the summer 2020 protests, nor was it simply a concern about “optics” of having military personnel at the Capitol. Instead, evidence is mounting that the most senior defense officials did not want to send troops to the Capitol because they harbored concerns that President Donald Trump might utilize the forces’ presence in an attempt to hold onto power.
According to a report released last month, Christopher Miller, who served as acting Secretary of the Defense on Jan. 6, told the Department’s inspector general that he feared “if we put U.S. military personnel on the Capitol, I would have created the greatest Constitutional crisis probably since the Civil War.” In congressional testimony, he said he was also cognizant of “fears that the President would invoke the Insurrection Act to politicize the military in an anti-democratic manner” and that “factored into my decisions regarding the appropriate and limited use of our Armed Forces to support civilian law enforcement during the Electoral College certification.”
Miller does not specify who held the fears that Trump would invoke the Insurrection Act, and he wasn’t asked by Congress. However, it’s now clear that such concerns were shared by General Mark Milley, Chairman of the Joint Chiefs of Staff, as well as former CIA Director and at the time Secretary of State Mike Pompeo. Before Nov. 3, Milley and Pompeo confided in one another that they had a persistent worry Trump would try to use the military in an attempt to hold onto power if he lost the election, the Washington Post’s Carol Leonnig and Philip Rucker reported. “This military’s not going to be used,” Milley assured Pompeo.
After Trump issued a Dec. 19, 2020 call to action to his supporters to come to DC to protest the certification of the electoral college vote on Jan. 6 (“Be there, will be wild!”), “Milley told his staff that he believed Trump was stoking unrest, possibly in hopes of an excuse to invoke the Insurrection Act and call out the military,” and that he sought to stay ahead of any effort by the President to use the military in a bid to stay in office, Leonnig and Rucker write.
Milley, according to multiple reports, “feared it was Trump’s ‘Reichstag moment,’ in which, like Adolf Hitler in 1933, he would manufacture a crisis in order to swoop in and rescue the nation from it.”
The top officials’ fears were warranted: Donald Trump, his close aides and a segment of Republican political figures had openly discussed the possibility of invoking the Insurrection Act or using the military to prevent the transfer of power on the basis of false claims that the election was “stolen.” But the Pentagon’s actions with respect to the National Guard suggest a scenario in which, on the basis of such concerns, a potentially profound crisis of command may have played out on Jan. 6.
Close observers of the events of Jan. 6 have mainly posited two reasons for the delay in mobilizing the Guard. The first explanation is one of bureaucratic failures or managerial weaknesses in the military’s procedures that day. A second explanation is that the military was deliberately serving Trump’s effort to interfere with the election by withholding assistance.
We identify a third explanation: that senior military officials constrained the mobilization and deployment of the National Guard to avoid injecting federal troops that could have been re-missioned by the President to advance his attempt to hold onto power.
With respect to planning for Jan. 6, the publicly available evidence to date very strongly suggests that the senior defense officials’ concerns led them to impose unprecedented constraints on the authorizations and substantive conditions for use of the Guard – Miller admitted as much. Those constraints help explain the substantial delay in sending a first group of Guardsmen to the Capitol. What’s more, the evidence also indicates that the same concerns potentially explain why the Pentagon did not approve deployment of the National Guard in sufficient time – and, indeed, authorized the deployment only after President Trump eventually made a public announcement (at 4:17 pm) that he was not in favor of continued occupation of the Capitol.
This third scenario, if true, raises fundamental constitutional questions about the transfer of power:
In reply to a request for comment, a Defense Department spokesman stated, “The Department has been transparent with regard to the planning and execution timeline for its response to the events of Jan 6,” and pointed to “the complete timeline” published on Jan. 8. “Given that the events leading up to and including the incident at the Capitol are still under investigation by Congress, it is not appropriate for the Department to comment further at this time,” he added.
What was at stake was the prospect of an illegal order from the President and thwarting a potential scheme to undermine the peaceful transfer of power. Ultimately, the outcome of the Pentagon’s decisions may have been best for the nation, even if it extended the period of time during which Congress was in harm’s way.
Summer 2020 protests and the near miss with the Insurrection Act
In June 2020, in response to the protests after the murder of George Floyd, then President Donald Trump indicated his willingness to deploy the U.S.military in American cities.
The election and Trump loyalists’ promotion of Insurrection Act
The notion that the President might use the Insurrection Act was seeded among his loyalists. Before and after the 2020 election, a network of individuals close to President Trump suggested, publicly and privately, that he should consider declaring martial law or invoking the Insurrection Act with respect to the election:
These public statements may have influenced senior military officials’ calculus ahead of the Jan. 6 attacks. It is unknown what private information, if any, these officials had which may have reinforced this public messaging.
Post-election: Personnel changes at the Pentagon
On Nov. 9, 2020: Trump fired Defense Secretary Esper. White House Chief of Staff Mark Meadows reportedly called Esper to inform the secretary that he was being dismissed for not being “sufficiently loyal.” After the Trump Presidency was over, Esper told Jonathan Karl that his goal was to prevent Trump from using the military against citizens in “the days before, the day of, and the days after the election.”
On the evening of Nov. 9, Pompeo came to see Milley, according to Bob Woodward and Robert Costa’s book Peril. Speaking of the President, Pompeo said, “He’s in a very dark place right now,” and expressed concern that Trump was turning the situation in a direction that was perilous for the republic. The following day, CIA Director Gina Haspel called Milley concerned about the shakeup at the Pentagon and believing that Trump wanted to fire her. “Yesterday was appalling,” Haspel told the Chairman. “We are on the way to a right-wing coup,” she said, according to Woodward and Costa’s reporting.
Three senior Pentagon officials departed with Esper, and Christopher Miller was surprisingly promoted to acting secretary of defense despite a thin resume for the job. The White House instituted other sudden personnel changes inside the Department, reportedly raising Chairman Milley and others’ suspicions that Trump was seeking to turn the Department toward his personal political interests.
Christopher Miller, Acting Secretary of Defense, Nov. 9, 2020, to Jan. 20, 2021, testifies (as then-National Counterterrorism Center Director) before Senate Homeland Security and Governmental Affairs Committee, Sept. 24, 2020
“Administration officials like Pompeo and Milley believed some of Trump’s new hires were conspiracy theorists and discussed whether others might have links to neo-Nazi groups,” the Wall Street Journal’s Michael Bender reported. “Senior administration officials weren’t completely sure what Trump was up to, and they started hitting the panic button. ‘The crazies have taken over,’” Pompeo said to a colleague.
Some of these officials were themselves reportedly involved in efforts to overturn the election based on QAnon-aligned conspiracies about the results, according to Jonathan Karl’s reporting. The first attempts by Trump’s allies to enlist one of these officials reportedly went nowhere. After Thanksgiving 2020, Michael Flynn attempted to enlist Cohen-Watnick to join the effort to overturn the election, including to effectuate orders and to seize ballots. Cohen-Watnick says he refused to get involved. Then, Trump lawyer Sidney Powell attempted to enlist Cohen-Watnick in a “special operations mission” to retrieve CIA Director Gina Haspel from Germany, where Powell believed Haspel was on a mission to destroy evidence of voter fraud located there. Cohen-Watnick was also reportedly shocked that Powell called him on his direct line at the Pentagon, a number that he thought someone with access to the internal directory had to have given her. Cohen-Watnick was disturbed by this communication, and informed acting Secretary Miller.
Then, in late December, Patel employed Department of Defense resources to investigate another QAnon-aligned conspiracy theory that Italian military satellites had rigged voting machines in the election, according to Betrayal. Patel asked Cohen-Watnick for assistance but was rejected. Patel, however, reportedly succeeded in getting Miller to ask the director of the Pentagon’s Defense Intelligence Agency to investigate the idea. Internal emails later revealed that Mark Meadows tried to get the Justice Department to look into the same allegations, an idea which the deputy attorney general described to the acting attorney general as “pure insanity.”
Miller and Milley on watch against Trump using “the powers of the military to stay in office”
While Milley reportedly had reservations about the new acting Secretary of Defense, Miller later told Jonathan Karl that his priorities in taking the role were three: “no military coup, no major war, and no troops in the streets.” Milley had a similar aim: in their account of the final days of the Trump Presidency in the book I Alone Can Fix It, Washington Post journalists Carol Leonnig and Philip Rucker recount that Milley saw his role as one to “protect against Trump and his people manipulating the military,” and that he told “confidants he would never openly defy the president; that would be illegal and violate his own sense of duty.” He sought to get out ahead of any move by Trump or his loyalists to “use the powers of the FBI, the CIA and especially the military to stay in office.”
In the fall, Milley had written to assure lawmakers, “In the event of a dispute over some aspect of the elections, by law U.S. courts and the U.S. Congress are required to resolve any disputes, not the U.S. military.” The U.S. Army’s after-action report for Jan. 6 states that the Chairman was prompted to make this public declaration due to “concerns related to the role of the military in the transition of government after the November election.” Following the election and concerns raised by the new leadership at the Defense Department, Chairman Milley, standing alongside the new acting secretary of defense, made a point to restate the military’s constitutional role. “We do not take an oath to an individual. No, we do not take an oath to a country, a tribe or religion. We take an oath to the Constitution. And every soldier that is represented in this museum, every sailor, airman, Marine, Coast Guardsman, each of us will protect and defend that document, regardless of personal price,” Milley said during remarks at the opening of the US Army museum on Nov. 11.
When Trump issued a Dec. 19th call to action to his supporters to protest the certification of the Electoral College vote at the Capitol on Jan. 6, “Milley told his staff that he believed Trump was stoking unrest, possibly in hopes of an excuse to invoke the Insurrection Act and call out the military,” according to Leonnig and Rucker. Milley also shared these concerns with some trusted associates. According to Susan Glasser’s reporting, Milley specifically said he was concerned about a scenario in which Trump tried “to use the military on the streets of America to prevent the legitimate, peaceful transfer of power.” His associates were reportedly concerned too. On Jan. 2, a former defense secretary reportedly told Milley that “all ten living former secretaries of defense had reached the same conclusion.”
General Mark Milley, United States Chairman of the Joint Chiefs of Staff since 2019, testifies before House Armed Services Committee Sept. 9, 2021
The following day, on Jan. 3, those former officials — including Ashton Carter, Dick Cheney, William Cohen, Mark Esper, Robert Gates, Chuck Hagel, James Mattis, Leon Panetta, William Perry and Donald Rumsfeld – published an op-ed in the Washington Post titled, “Involving the military in election disputes would cross into dangerous territory.” Noting the “solemn obligations of the U.S. armed forces and Defense Department,” the former secretaries wrote that “acting defense secretary Christopher C. Miller and his subordinates — political appointees, officers and civil servants — are each bound by oath, law and precedent to facilitate the entry into office of the incoming administration, and to do so wholeheartedly. They must also refrain from any political actions that undermine the results of the election or hinder the success of the new team.”
In his written prepared testimony, Miller stated that the former secretaries’ op-ed as well as “fears that the President would invoke the Insurrection Act to politicize the military in an anti-democratic manner” affected his decision to restrain the use of Guard forces on Jan. 6. We quote these passages in full:
“My concerns regarding the appropriate and limited use of the military in domestic matters were 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. I was also cognizant of the fears promulgated by many about the prior use of the military in the June 2020 response to protests near the White House and fears that the President would invoke the Insurrection Act to politicize the military in an anti-democratic manner. And, just before the Electoral College certification, ten former Secretaries of Defense signed an Op-Ed piece published in the Washington Post warning of the dangers of politicizing and using inappropriately the military.
No such thing was going to occur on my watch but these concerns, and hysteria about them, nonetheless factored into my decisions regarding the appropriate and limited use of our Armed Forces to support civilian law enforcement during the Electoral College certification. My obligation to the Nation was to prevent a constitutional crisis. That, in addition to the limited request from the Mayor for D.C. National Guard deployment distanced from the Capitol, is why I agreed only to deploy our Soldiers in areas away from the Capitol, avoiding amplifying the irresponsible narrative that your Armed Forces were somehow going to be co-opted in an effort to overturn the election. But I did not believe, and I think my senior advisors shared this view, that January 6, 2021 was going to be “business-as-usual.”
In his witness interview with the Department’s inspector general, Miller also made explicit that concerns about the use of the Insurrection Act motivated him to place specific constraints on the use of the Guard in the authorizations promulgated for Jan. 6. The former acting secretary of defense said:
“There was absolutely no way … I was putting U.S. military forces at the Capitol, period.” He cited media stories alleging that the President’s advisors were pushing him to declare martial law to invalidate the election and that Mr. Miller was an ally installed as the Acting SecDef to facilitate a coup. He also cited a January 3, 2021 open letter from 10 former Secretaries of Defense warning the Defense Department not to use the military in a manner antithetical to the U.S. Constitution. Mr. Miller stated that he “made a very deliberate decision that I would not put U.S. military people … East of the 9th Street, northwest. … And the reason for that was I knew if the morning of the 6th or prior if we put U.S. military personnel on the Capitol, I would have created the greatest Constitutional crisis probably since the Civil War.” (internal ellipses in original)
The threat of creating the “the greatest Constitutional crisis probably since the Civil War” is, to be sure, not likely merely a concern about the “optics” of having Guard troops protect the Capitol. Another possible indication of the significance that the President might seek to invoke the Insurrection Act is contained in the inspector general report’s conclusions. Taking into account Miller’s statement in his witness interview, the inspector general concludes that Pentagon officials correctly did not advise Trump he could consider invoking the Act. “DoD officials received information from civilian law enforcement channels that did not warrant advising the President to consider invoking the authorities in the Insurrection Act or National Emergencies Act,” the report states.
Unprecedented constraints on the DC National Guard
While the Pentagon’s top leaders and their associates became increasingly concerned that Trump might attempt to use the military to hold onto power, questions arose as to whether and under what conditions to approve the DC Mayor’s requests for DC National Guard assistance for the events planned on Jan. 6.
In his congressional testimony and interview with the inspector general, Miller has been most explicit that concerns about Trump’s invoking the Insurrection Act or otherwise employing the military to interfere with the transition of power shaped his decision to restrict the use of the Guard including the “very deliberate decision that I would not put U.S. military people … East of the 9th Street, northwest.” The inspector general’s report notes that “other witnesses concurred with Mr. Miller” including Secretary of the Army McCarthy. “Mr. McCarthy told us … that Mr. Miller made it clear that the military would not be involved in certifying the election results and that ‘10 different news agencies’ asked him about military use and martial law. Mr. McCarthy said that he wanted to make sure that civilian law enforcement, not the military, was in the lead,” the inspector general’s report states.
These statements by McCarthy, however, could be simply about the optics or perception of military involvement especially after the summer protests. That said, as the bipartisan Senate report explained, “When General Walker was asked whether the issue of ‘optics’ of a uniformed presence was ‘ever brought up by Army leadership when the DC National Guard was deployed during the summer of 2020,’ he responded, ‘It was never discussed [in] June. It was never discussed July 4th when we were supporting the city. It was never discussed August 28th when we supported the city.’” The Senate report adds, “Other events also informed DOD’s posture in the days leading up to January 6. … Mr. McCarthy explained that ‘[the] hyperbole . . . about martial law and [the] 10 Sec Def letter’ were ‘discussed in the entire Pentagon.’”
In the new year, when Walker was preparing a slide show on planning support for Jan. 6, “Walker told [the inspector general] that …. McCarthy and senior Army leaders talked about optics, and how the DCNG personnel were not to be close to the Capitol.” Chief of the Staff of the Army, Gen. James McConville confirmed this posture. He told the inspector general that “the general feeling of all those involved [with approving the D.C. Request for Assistance] was that the military would have no role, and many people talked about the optics of having military at the Capitol. What that would look like, how that would influence even some of the demonstrators or protesters. And so there was a general feeling among everybody that the military would be in a very small and supporting role.”
There was even a point where the Secretary of the Army called D.C. Metropolitan Police Department Robert J. Contee on the afternoon of Jan. 3 and “indicated that the DoD was going to deny the D.C. RFA [Request for Assistance] and expressed concern with the optics of boots on the ground anywhere near the Capitol,” according to the inspector general’s report (emphasis added).
Ryan McCarthy, Secretary of the U.S. Army, 2019 to Jan. 20, 2021, at a Defense Department Briefing Oct. 13, 2021
Ultimately the Pentagon accepted the DC authorities’ request but imposed unusual substantive constraints on the location, equipment, and role for the DC National Guard. And the Pentagon imposed unusual procedural constraints on authorization for any modifications, even including having to go up the chain of command to get approval from the Secretary of the Army to move a Guard soldier from one traffic control point to another a block away. “Nineteen years I never had that before happen,” Maj. Gen. Walker said in his testimony before the Senate. A Jan. 5 letter from McCarthy to Walker also withheld the ability of the Commander to deploy the Guard’s Quick Reaction Force without first presenting a “Concept of Operation” (CONOP) to the Secretary of the Army and obtaining the Secretary’s prior approval, which Walker also described as unusual. The DC National Guard’s senior Judge Advocate General wrote, “McCarthy had typically trusted Walker to deploy the QRF at his discretion. … If the restriction was not there, Walker would likely have interpreted the riot on Capitol Hill as a ‘last resort’ situation and employed the QRF on his own initiative in support of MPD at the Capitol.”
General William J. Walker, Commanding General, District of Columbia National Guard, 2017-2021, testifies before Senate Rules and Homeland Security Committees, May 3, 2021
Trump, Meadows: Mobilize National Guard to protect Trump supporters (Jan. 3-5, 2021)
On Jan. 3, the same day that the former secretary’s op-ed appeared in the Post, Milley and Miller met with Trump in the Oval Office around 5:30 pm to discuss a matter involving Iran. At the meeting, Trump queried his defense secretary about preparations for Jan. 6 (see Senate bipartisan report). According to Leonnig and Rucker, Trump wanted to know whether there were plans to have adequate forces on hand that day, and in a pull-aside Milley asked Miller to assure him of the meaning of the exchange: “He approached Miller privately. Milley wanted to be clear that when Trump said ‘you’re all set,’ he was referring only to National Guard capabilities. ‘There’s nothing else set, right?’ Milley asked. Miller told him, yes, the National Guard was all the president meant. Nothing else was in the works.”
In testimony before the House Oversight Committee in an answer to a direct question from Rep. Byron Donalds (R-FL), Miller said that the President told him to “do whatever was necessary to protect the demonstrators that were executing their constitutionally protected rights.” That statement is consistent with an email Meadows sent to an individual on Jan. 5, which “said that the National Guard would be present to ‘protect pro Trump people’ and that many more would be available on standby,” according to records Meadows provided the House select committee.
On the late afternoon or evening of Jan. 5, the President spoke with Miller (who was reportedly with Patel) and said that the acting secretary of defense should have as many as 10,000 troops on hand for the following day – which Miller did not follow through on. That’s according to Miller’s written testimony before the House oversight committee, his interview with the Defense Department inspector general, and his statements to the press. It’s also consistent with Trump’s own account. A discrepancy is that Meadows referred to it as a “direct order” from the President (in a Feb. 7, 2021 interview with Fox host Maria Bartiromo), Trump said it was a “recommend[ation]” and “suggestion,” given “not as an order” (in a Dec. 11, 2021 public event). Miller described his reaction, “And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” What’s more, “Miller and other senior Pentagon officials did not relay the 10,000 figure to anyone outside the Defense Department, according to a former U.S. official who was familiar with the matter,” reported the Washington Post fact checker Glenn Kessler.
Miller, Milley: Consider revoking Trump supporters’ permits at Capitol (Jan. 4, 2021)
Meanwhile, the acting Secretary of Defense and Chairman of the Joint Chiefs of Staff were working to prevent an unruly situation during the certification. On Jan. 4, Miller convened a conference call with Cabinet members in which he raised concerns about militia groups such as the Boogaloo Boys and Proud Boys because he recognized “6 January was the critical day in many of these conspiratorial-minded folks’ narrative, and that [it] . . . could be a pretty dramatic day.” During the Cabinet meeting, according to Miller, both “he and General Milley voiced concern about the permits that had been issued, questioning whether there was a mechanism to revoke permits for the 1,000 to 2,000 people who had been granted permission to gather on Capitol grounds.”
The tick tock of January 6
The delay in the Guard’s response and questions that timeline raises have been amply reported and discussed elsewhere. We provide some added highlights that have not been widely recognized.
Before listing those highlights, we should note that in contrast with the planning stage, once rioters breached the U.S. Capitol grounds, the motivations and actions of senior defense officials with regard to whether and when to deploy the National Guard is not as clear. It may well be that the concerns about sending the Guard to the Capitol receded at that point. Indeed, Miller suggested as much in his interview with the department’s inspector general. And it may well be that some military officials were working at cross-purposes, with different goals or understandings in mind. The following data points, however, suggest that the concern about Trump’s re-missioning the Guard may have continued to affect the decision calculus of senior defense officials even after receiving urgent requests for assistance from Capitol Police and DC authorities. What’s more, it seems beyond question that the constraints placed on authorization of the DC National Guard in the legal framework finalized before Jan. 6 significantly delayed the Guard’s ability to reach the Capitol that day.
Steven Sund, Chief of the U.S. Capitol Police, June 2019 to Jan. 16, 2021, testifies before Senate Rules and Homeland Security Committees, Feb. 23, 2021
Highlights to consider:
1. No communications with the Secretary of the Army and Commander of DC National Guard
Despite a highly unusual arrangement requiring the Secretary of the Army McCarthy to sign off on even small changes to the movement of National Guard troops on Jan. 6, “the Secretary of the Army was incommunicado” during the day with respect to being unavailable to speak with the commander of the D.C. National Guard, according to then-Commander Major General William J. Walker and his senior Judge Advocate General Col. Earl G. Matthews.
2. No attempted communications with the President of the United States
Despite a violent attack on the seat of government, Miller says he never communicated with the President although he communicated with senior officials across the government including the Vice President. He says he saw no reason to try to contact Trump because he already had the President’s prior approval to deploy forces.
The Defense Department’s inspector general reported that on Jan. 6, “Miller exchanged telephone calls with the Vice President, Members of Congress, Cabinet members, and members of the White House staff. Mr. Miller and Gen. Milley both told us that there were no calls between the President and Mr. Miller.”
3. Director of Army Staff concerns about DC National Guard at the Capitol
In its official timeline, the Defense Department omitted the crucial meeting in which the Director of the Army Staff Lt. General Piatt allegedly expressed concerns about the optics of deploying the D.C. National Guard to the Capitol and said he could not advise the Secretary of the Army to approve the request – statements that “stunned” the commander of the Guard and Capitol Police and DC officials on the call. Piatt testified that he did not refer to the optics of having the Guard at the Capitol. However, according to the Pentagon’s inspector general report and others’ congressional testimony, Piatt’s denial is repudiated by many witnesses including then-D.C. National Guard Commander Walker, D.C. National Guard senior Judge Advocate General Col. Matthews, then-Capitol Police Chief Sund, acting Chief of the D.C. Metropolitan Police Department Robert J. Contee, Director of the D.C. Homeland Security and Emergency Management Agency Christopher Rodriguez, and two US Army witnesses.
4. White House vs. Pentagon public messaging narratives
At 3:36 pm, the White House press secretary announced on Twitter, “At President @realDonaldTrump’s direction, the National Guard is on the way along with federal protective services. We reiterate President Trump’s call against violence and to remain peaceful” (emphasis added). As an aside: the statement did not call for people to leave the Capitol.
Perhaps in response, nearly within 15 minutes (at 3:52 pm), the Pentagon spokesperson said on Twitter that “the DC Guard has been mobilized to provide support to federal law enforcement in the District” and “the law enforcement response will be lead[sic] by DOJ.” That was soon followed (at 4:08 pm) by Fox News’ Pentagon correspondent Jennifer Griffin reporting that it “will take several hours to mobilize but federal law enforcement will be in the lead, according to multiple defense officials” and that “Defense officials tell me the US military should not be in the lead here. The US military should NOT be used to determine the outcome of elections” (emphasis in original).
5. Milley’s fears realized
Milley was not only concerned in advance of Jan. 6 about the prospect of Trump’s orchestrating a Reichstag moment. He also appeared to consider the events that day amounted to such an attempt, Woodward and Costa reported in Peril. Glasser also reported:
“On January 6th, a version of Milley’s nightmare scenario played out anyway …. Milley had not envisioned it, not exactly—his fears had been largely about street violence, involving running battles between pro-Trump thugs and left-wing opponents that Trump might use as a pretext for demanding martial law. This was the analogy to Germany in the nineteen-thirties that Milley had in mind. When January 6th happened, it wasn’t quite like that, of course. But Milley told others on that awful day that what they had dreaded had come to pass: Trump had his ‘Reichstag moment’ after all.”
That said, not much has been reported about Milley’s actions or communications that day. Leonnig and Rucker reported that Miller turned to Milley at the initial 2:30 pm meeting and asked for the Chairman’s advice:
“Get on the phone with the A.G. right now and get every cop in D.C. down there to the Capitol this minute, all seven to eight thousand of them,” Milley said. He recommended Hokanson mobilize the entire D.C. National Guard and send out a call for National Guard reinforcements from the nearby states of Maryland, Delaware, Pennsylvania, and Virginia.”
According to the Department’s official timeline, Miller authorized the mobilization of the DC National Guard about thirty minutes later, and authorized actual deployment of the Guard to “conduct perimeter and clearance operations” over two hours later.
6. Timing with Trump’s public stance
According to the Department of Defense’s and U.S. Army’s own timelines, it is only after President Trump publicly released a recorded statement on Twitter, at 4:17pm, telling his followers, “You have to go home now, we have to have peace,” that Miller approved McCarthy’s plan for deploying the D.C. National Guard to the Capitol and even later when McCarthy authorized Walker to deploy his forces to the Capitol.
7. Repeatedly denying Maryland National Guard
It is also only after Trump’s tweet at 4:17pm that McCarthy calls Maryland Governor Larry Hogan (at 4:40 pm) to send his national guard forces. Hogan had been trying for “two hours” to get Pentagon approval after having received “frantic phone calls” from leaders of Congress “begging us to send the Maryland National Guard.” Hogan later reveals “our guys were staged at the border” waiting for McCarthy’s approval. In a press conference, Hogan says that he was “repeatedly denied” approval to do so from the Pentagon despite being “ready, willing and able to immediately deploy them to the Capitol.” Following McCarthy’s approval, the Maryland guard members were the first to arrive in Washington from out of state.
Leonnig and Rucker note in their book, “Despite Milley recommending the Pentagon call up neighboring National Guard units immediately, McCarthy hadn’t gotten around to it until more than two and a half hours after the Capitol was breached.”
8. Securing the perimeter
The U.S. Army acknowledged that Gen. Piatt “expressed concern about Army soldiers clearing the Capitol Building, recommending that the National Guard assist with crowd control while law enforcement cleared the Capitol Building.” When the Guard was finally deployed it was only to secure the perimeter around the building (see a heated exchange over this fact between Rep. Quiqley and Gen. Piatt). Regardless of the best mission objective for the Guard once the Capitol was breached, as the Senate bipartisan report explained, the Pentagon’s procedures “resulted in DCNG [the DC National Guard] not arriving until after both Chambers had already been secured.”
The inspector general report, for its part, “determined that DoD officials did not delay or obstruct the DoD’s response to the USCP RFA [Capitol Police Request for Assistance] on January 6, 2021.” However, Walker has called for the report’s retraction, and his senior Judge Advocate General wrote a scathing 36-page memorandum, relying on the accounts of senior DC National Guard and DC officials, and criticizing the report’s deference to the official account by US Army leaders.
* * *
It is important for many reasons to get to the truth of what happened inside the Department of Defense in the runup to and on Jan. 6. One reason is to ensure accountability of those most responsible for the attempt to interfere with the transfer of power.
In the absence of such clarity, Trump recently highlighted his having told Miller to prepare 10,000 troops for Jan. 6 – as though such an account would be exculpatory for the former president. In his “History Tour” with conservative media personality Bill O’Reilly earlier this month, Trump said, “I asked the Secretary of Defense, I said, I think you should recommend to Nancy Pelosi and to Congress, because they are the ones that control it, I would like to recommend 10,000 National Guardsmen.” (The side reference to Pelosi has been well and repeatedly debunked.) “That undercuts the entire premise that Donald Trump instigated the Capitol attacks,” said O’Reilly in a subsequent video production.
It would be a cruel and strange twist if the mystery about actions taken by senior Pentagon officials to avoid Trump’s use of the military in his bid to hang onto power became a cornerstone of Trump’s defense for his actions that day.
Attack on US Capitol, Department of Defense (DoD), House Select Committee on January 6, Insurrection Act, National Guard, Posse Comitatus
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by Stephenie Foster and Susan Markham
Nov 8th, 2021
by Eugene R. Fidell
Nov 5th, 2021
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by Eric Rosand
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by Brianna Rosen
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by Elizabeth Goitein
Oct 29th, 2021
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Oct 25th, 2021
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Oct 22nd, 2021
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Oct 21st, 2021
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Oct 18th, 2021
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Oct 14th, 2021
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Oct 13th, 2021
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Oct 12th, 2021
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Oct 12th, 2021
by Joshua Rudolph
Oct 7th, 2021
by Justin Hendrix
Oct 6th, 2021
by Ambassador David Scheffer
Oct 6th, 2021
by Brian Finucane
Oct 4th, 2021
by Ryan Goodman, Christine Berger and Margaret Shields
Sep 30th, 2021
by Ambassador Thomas Graham Jr.
Sep 29th, 2021
by Robert Howse
Sep 28th, 2021
by Corin R. Stone
Sep 28th, 2021
by Ambassador (ret.) Eileen Donahoe
Sep 27th, 2021
by Aryeh Neier
Sep 24th, 2021
by Ambassador Stephen J. Rapp
Sep 23rd, 2021
by Elizabeth Goitein
Sep 22nd, 2021
by Payam Akhavan
Sep 21st, 2021
by Tess Bridgeman and Ryan Goodman
Sep 20th, 2021
by Russ Feingold
Sep 20th, 2021
by Damian Lilly
Sep 20th, 2021
by Sean Murphy
Sep 17th, 2021
by Steven Katz
Sep 16th, 2021
by Justice Richard Goldstone
Sep 15th, 2021
by Jameel Jaffer and Ryan Goodman
Sep 14th, 2021
by Rebecca Barber
Sep 14th, 2021
by Joseph Margulies and Baher Azmy
Sep 13th, 2021
by John Fabian Witt
Sep 8th, 2021
by Tess Bridgeman, Rachel Goldbrenner and Ryan Goodman
Sep 7th, 2021
by Andrea Walther-Puri
Sep 6th, 2021
by Rachel Alpert
Sep 3rd, 2021
by Heather Barr
Sep 2nd, 2021
by Beatrice Eriksson
Sep 2nd, 2021
by Jonathan Hafetz
Sep 1st, 2021
by Siobhan O’Neil and Zoe Marks
Aug 31st, 2021
by Pablo Arrocha Olabuenaga
Aug 30th, 2021
by Dennis Aftergut and Kathleen Clark
Aug 26th, 2021
by Adam M. Smith
Aug 23rd, 2021
by Gregory F. Treverton
Aug 21st, 2021
by Pierre Esperance
Aug 19th, 2021
by Larry D. Johnson
Aug 18th, 2021
by Douglas London
Aug 18th, 2021
by Tess Bridgeman and Ryan Goodman
Aug 17th, 2021
by Corin R. Stone
Aug 17th, 2021
by Fionnuala Ní Aoláin
Aug 16th, 2021
by Andy Wright
Aug 13th, 2021
by Jason K. Dempsey
Aug 12th, 2021
by Ryan Goodman and Juilee Shivalkar
Aug 8th, 2021
by Khan and Julie Kornfeld
Aug 2nd, 2021
by Brian Finucane
Jul 31st, 2021
by Amal Clooney
Jul 29th, 2021
by Charles P. Henry
Jul 28th, 2021
by Ryan Goodman, Barbara McQuade and Joyce Vance
Jul 26th, 2021
by Irvin McCullough and Tom Devine
Jul 23rd, 2021
by Lotus Ruan and Gabrielle Lim
Jul 21st, 2021
by Dr. Ethan Hee-Seok Shin and Stephanie Minyoung Lee
Jul 20th, 2021
by Eric Chenoweth and Irena Lasota
Jul 19th, 2021
by Karl Mihm, Justin Cole, Iva Petkova, Margaret Shields, Mari Dugas, Nicholas Tonckens and Tess Bridgeman
Nov 19th, 2021
by Karl Mihm, Jacob Apkon and Sruthi Venkatachalam
Dec 21st, 2021
by Tess Bridgeman, Rachel Goldbrenner and Ryan Goodman
Sep 7th, 2021
by Matiangai Sirleaf
Jul 13th, 2020
by Just Security
Jul 19th, 2021
by Christine Berger
May 29th, 2021
by Emily Berman, Tess Bridgeman, Ryan Goodman and Dakota S. Rudesill
Oct 14th, 2020
by Justin Hendrix, Nicholas Tonckens and Sruthi Venkatachalam
Aug 29th, 2021
by Ryan Goodman and Juilee Shivalkar
Aug 8th, 2021
by Kate Brannen and Ryan Goodman
May 11th, 2021
by Atlantic Council's DFRLab
Feb 10th, 2021
by Ryan Goodman, Mari Dugas and Nicholas Tonckens
Jan 11th, 2021
by Ryan Goodman and Danielle Schulkin
Nov 3rd, 2020
by Chris Shenton
Aug 24th, 2020
by Ryan Goodman and Danielle Schulkin
Jul 27th, 2020
by Ryan Goodman and Julia Brooks
Mar 11th, 2020
by Viola Gienger and Ryan Goodman
Jan 31st, 2020
Ryan Goodman (@rgoodlaw) is co-editor-in-chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, and former Special Counsel to the General Counsel of the Department of Defense (2015-2016).
Justin Hendrix (@justinhendrix) is cofounder and CEO of Tech Policy Press and associate research scientist and adjunct professor at NYU Tandon School of Engineering. Opinions expressed here are his own and do not necessarily reflect the views of any organization or institution.
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by Conor Shaw
Dec 22nd, 2021
by Ryan Goodman and Justin Hendrix
Dec 22nd, 2021
by Karl Mihm, Jacob Apkon and Sruthi Venkatachalam
Dec 21st, 2021
by Ambassador P. Michael McKinley (ret.)
Dec 20th, 2021
by Ryan Goodman and Randal S. Milch
Dec 16th, 2021
by Steven Katz
Dec 10th, 2021
by Joseph Nunn
Dec 9th, 2021
by Ryan Goodman and Justin Hendrix
Dec 6th, 2021
by Jordan Street
Dec 6th, 2021
by Justin Hendrix, Justin Cole, Margaret Shields and Nicholas Tonckens
Nov 9th, 2021
by Eugene R. Fidell
Nov 5th, 2021
by Kel McClanahan and Mark J. Rozell
Nov 4th, 2021
Just Security is based at the Reiss Center on Law and Security at New York University School of Law.
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