A comprehensive report by Just Security offers a chilling theory on why there was an hours-long delay in getting National Guard to the U.S. Capitol during the attack on Jan. 6. Mounting evidence—supplied by several senior defense officials—indicate the delay may have occurred because of a significant and shared fear among top brass that former President Donald Trump would use a freshly deployed National Guard to invoke the Insurrection Act and attempt to hold on to power indefinitely.
Just Security co-editor in chief and former special counsel for the Defense Department Ryan Goodman and editor of Tech Policy Press and contributor to Just Security Justin Hendrix posited this well-sourced theory in their Dec. 21 piece alongside some of the more commonly held beliefs regarding the delay. Those include the notion that authorities weren’t keen on the “optics” of having U.S. troops installed at the Capitol and that officials had considerable misgivings about the deployment overall.
In November, the Office of the Inspector General for the Defense Department published a 153-page report reviewing the agency’s role, responsibilities, and actions to prepare for and respond to the Jan. 6 assault and its aftermath.
Key portions of those findings are cited in the Just Security analysis, including an excerpt from former acting Defense Secretary Christopher Miller. Miller testified to the House Oversight Committee in May that if he ordered the U.S. military to be on Capitol grounds on Jan. 6, he could have “created the greatest Constitutional crisis probably since the Civil War.”
“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)
Miller stopped short of naming specific officials who shared that view. Still, when testifying to House Oversight, he did not shy away from admitting that he thought Trump would use the Insurrection Act in an “anti-democratic manner.”
But as Goodman and Hendrix pointed out Tuesday, it has become clear in more recent months— thanks to public reporting—that Miller’s concerns were shared by officials like the chairman of the joint chiefs of staff Gen. Mark Milley, former CIA Director John Brennan, and former Secretary of State Mike Pompeo.
In I Alone Can Fix It, Milley was quoted as telling Pompeo that the U.S. military was “not going to be used” as Trump’s plaything. And as pointed out by Goodman and Hendrix, though many have theorized that the slow response by Defense on Jan. 6 was a display of the military’s willingness to abet Trump’s power grab, growing evidence suggests otherwise.
“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,” Goodman and Hendrix wrote Tuesday.
That would explain not only the delay of the first wave of Guardsmen deployed to the Capitol, but it could also explain why the Defense Department only sent help until after Trump stated publicly: “You have to go home now. We have to have peace. We have to have law and order.”
That statement, it should be noted, was not made until after 4 PM on Jan. 6. Earlier that afternoon, and long after rioters had breached the complex, Trump was on Twitter ratcheting up tensions and pushing his agenda.
At 2:24 PM on Jan. 6, Trump wrote: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
Fourteen minutes later at 2:38 PM—and, again, this was still hours before Trump finally called for peace more plainly—the former president addressed his supporters on Twitter: “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”
U.S. Air Force veteran Ashli Babbitt was shot within the next 45 minutes.
Babbitt was forcing her way into chambers and ignored repeated verbal orders to stand down from U.S. Capitol Police Lieutenant Michael Byrd. An investigation into Babbitt’s death by the Department of Justice concluded this April. Officials said they would not pursue criminal charges against Byrd since his actions were “lawful and within Department policy.”
Further, Milley, in response to Trump’s late afternoon request for rioters to disperse on Jan. 6, reportedly told staff at the Pentagon he felt Trump was “stoking unrest, possibly in hopes of an excuse to invoke the Insurrection Act and call out the military.”
In light of the mounting evidence suggesting assistance to the Capitol was delayed for strategic purposes aimed at preserving democracy as a whole, Goodman and Hendrix noted new questions, naturally, arise:
- Under what conditions might the U.S. military try to subvert the will of the President (even if one ethically agrees with the difficult choices the Pentagon made before and on Jan. 6)?
- What information did senior officials have concerning President Trump’s potential use of the military to hold onto power and who else did they believe was participating in such a scheme?
“There’s a need for public information about what actually happened at the Pentagon on Jan. 6, because Trump and others are exploiting the current mystery to spread disinformation and to avoid accountability,” Goodman and Hendrix said in a statement to Daily Kos on Tuesday.
Goodman added: “I hope congressional investigators and reporters will follow up on the profound questions our analysis raises. For example, what exactly gave Chairman Milley such concerns about the prospect that Trump would try to use the military to hold onto power, and who did Milley think was involved in such a plot? The evidence led us to this chilling account of what likely happened. It’s important for our country to understand how close we came to going off the cliff.”
The Defense Department has been restrained in its public response, saying only that the agency has been transparent with the timeline and telling Just Security that given the ongoing probe by the Jan. 6th Committee, it would be inappropriate to comment further, for now.
The Insurrection Act was first established in 1807 and has seen many amendments and revisions in the 214 years since it was first put on the books. In short, the legislation allows a president first to issue a proclamation ordering insurgents to disperse within a limited time. Then, if things are not sorted out in that time, the President of the United States is authorized to issue an executive order deploying troops to quell insurgents.
According to the U.S. code, a president is permitted to use armed forces in the event of a domestic terrorist attack or a natural disaster. It also allows for military forces to “suppress” significant civil unrest.
However, what is less clear is whether the act implies that the act is only properly invoked when a state also requests troops in its borders. Experts debated this last July during a Congressional Study Group on Foreign Relations and National Security.
Trump had several “near misses” with invoking the act, Goodman and Hendrix noted.
He reportedly told Milley and then-Attorney General William Barr to “beat the fuck out of” or “just shoot” Black Lives Matter demonstrators last June, even going so far as to draft up a proclamation invoking the Insurrection Act. It was widely reported that Trump also considered sending 10,000 active-duty troops into the streets of several U.S. cities, including the Nation’s Capitol.
He was reportedly only held back when then-Secretary of Defense Mark Esper and General Milley objected.
The examples from Hendrix and Goodman continued:
- At the time, Trump reportedly demanded 10,000 active-duty troops be deployed to the streets of Washington, D.C. and other cities, but then-Secretary of Defense Mark Esper and Chairman of the Joint Chiefs of Staff General Mark Milley objected to the plan.
- These demands immediately preceded the President’s photo op with both men in Lafayette Park—an act for which Milley—the country’s top military official— later apologized, noting that his “presence in that moment and in that environment created a perception of the military involved in domestic politics.”
- The next day Esper hosted a press conference at the Pentagon where he addressed the role of the Department of Defense in the protests across the nation and announced his opposition to using the Insurrection Act to deploy troops to American cities. Esper stopped short of apologizing, but noted that he sought to stay apolitical, but “sometimes I’m successful at doing that, and sometimes I’m not as successful.”
- Following these events, Esper and Milley were then summoned to the White House, according to ABC News reporter Jonathan Karl’s book Betrayal, where the President expressed anger over the statement and reminded them that the decision to invoke the Insurrection Act was the President’s alone.
- Trump ordered troops from the 82nd Airborne Division to be stationed 30 minutes outside of Washington D.C., but within days Secretary Esper was able to get Trump to reverse that order and have the troops start withdrawing in what The New York Times reported as “temporarily easing a contentious standoff with the Pentagon.”
Other Trump cronies like Roger Stone, Alex Jones, and Michael Flynn also publicly called for Trump to invoke the Insurrection Act to further his bunk election fraud propaganda.
As a part of the Jan. 6 Committee probe, Stone and Jones have said they will invoke their Fifth Amendment right against self-incrimination. According to the committee, a deposition with Flynn is currently delayed for a short time.
The entire Just Security analysis is available here.