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Did We Really Want Trump to Deploy the National Guard on Jan. 6?
Maybe Congress should check the commander-in-chief’s powers under the Insurrection Act
Tyler Merbler, Wikipedia Commons
A few months ago, I met a man from North Carolina in a small social setting. As we all chatted, the man mentioned that he’d supported Donald Trump’s presidency. He liked Trump’s tax cuts. He thought Trump had done well with the economy before the pandemic hit. He also felt immigration reform was necessary: He’d worked with immigrants in the building trades and thought very well of them, but he was troubled by stories of criminals who’d entered the country illegally.
Then the topic of Jan. 6 came up. Instantly, his face fell, and his voice went hoarse with emotion. Trump had done the wrong thing there.
“That was horrible,” he said slowly. “That was just … horrible.”
I recalled those words again after the U.S. House Jan. 6 committee’s July 21 hearing, which offered demoralizing details about Trump’s failure to intervene in the storming of the U.S. Capitol. On that day, for the better part of three hours, a commander-in-chief known for his restless drive and combativeness barely stirred while an invasion of the cherished U.S. Capitol Building drove members of Congress, the first branch of government, from their chambers during the performance of a prescribed constitutional duty. Worse, Trump’s inactivity bore a strong odor of ambition. These rioters were his supporters, and they believed he, not Democrat Joe Biden, should be declared the next president.
Trump’s singular conduct raises serious questions about his fitness for public office, but it also suggests a legislative concern that Congress should consider: the knotty issue of a president’s ability to deploy military force domestically during a presidential transition. This power is a double-edged sword.
On Jan. 6, the conundrum was on full display. Longstanding federal statutes broadly limit the president’s use of the military to enforce domestic law and order. Two major exceptions to this restriction are immediately relevant to Jan. 6 and involve National Guard units, which are typically under the authority of state governments. The first is the president’s unilateral ability, under the federal Insurrection Act, to assume command of state National Guards when the president believes that unlawful assemblies or rebellion against the United States in an area “make it impracticable” to enforce federal law there. The second is that the National Guard of Washington, D.C., is always under the president’s control, though this control is delegated by the president to the secretary of defense.
On Jan. 6, hours of rioting passed at the Capitol before the D.C. National Guard arrived to reinforce the overwhelmed Capitol and D.C. Metropolitan Police. A joint review by two U.S. Senate committees later found that intelligence failures, coupled with intricate bureaucratic protocols—some questionable, some arguably necessary—led to delay and confusion over deployment of the guard.
Yet this wasn’t the only theory for the delay. The more obvious suspicion was that the president and his staff dragged their feet to give the rioters time to intimidate Congress into officially requesting state ballot recounts or outright declaring Trump the winner. In a hearing before the House Committee on Oversight and Reform in May 2021, Democratic Congressman Hank Johnson of Georgia asked Trump’s former Acting Secretary of Defense Christopher Miller, “How did it come to pass that you slow-rolled the deployment of National Guard troops” that day, and, “Did you ever plan [that delay] with anyone inside or outside of the Trump administration or with President Trump himself”? Miller replied that Rep. Johnson’s description of the deployment was “completely inaccurate,” and he “most emphatically” denied that a delay was coordinated with the White House.
There is another possibility, however. At the New York University School of Law website “Just Security,” Ryan Goodman and Justin Hendrix cite considerable evidence that Miller and others in the executive branch, including Chairman of the Joint Chiefs of Staff Gen. Mark Milley, feared that Trump would foment violence on Jan. 6 and then cite the unrest to invoke the Insurrection Act, deploy the D.C. National Guard or other military forces, and use the state of emergency to try and suspend the transfer of presidential power.
This suggests a dynamic precisely the opposite of Rep. Johnson’s concern: Miller and others may have quietly used red tape to hamstring the D.C. National Guard’s deployment and disempower President Trump, rendering it harder for him to use the guard to engineer a “Reichstag moment” of the kind Adolf Hitler manufactured in 1933 to seize dictatorial power in Germany. This is one element of the double-edged sword: Given the president’s control of the D.C. National Guard, it was debatable, at least in advance, whether rapid deployment of the guard would be better or worse for the American republic that day.
Obviously, Goodman and Hendrix’s evidence isn’t conclusive. Miller and others may have raised the specter of a guard-enabled coup as a cover for ineptitude, conspiracy or both. Still, the unfortunate possibility of proactive presidential abuse suggests Congress should review the various laws allowing the president to deploy the military domestically. These provisions include the president’s control over the D.C. National Guard (perhaps it should be reassigned to the city’s mayor) and the president’s power to summon military forces domestically under the Insurrection Act (perhaps these should be subject to state or congressional approval, particularly around election time). Congress was also correct to consider reform to an apparent “posse comitatus” loophole that can be exploited to let the president easily bypass state governments’ objections to the local deployment of National Guard units.
And finally, it’s worth noting that the Constitution allows Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Under this provision, Congress may be able to grant itself more direct access to the D.C. National Guard when Congress itself is under attack.
This could prove useful. After Jan. 6, it now appears plausible that a president might not keep Congress’ safety and a peaceful transition of presidential power close to his heart. This betrayal of the American public—felt keenly even by some ardent Trump supporters—was, in a word, horrible. It was just … horrible.
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