Former President Donald Trump alerted his followers on Truth Social on July 18 that he has been “sent a letter… stating that I am the TARGET of the January 6th Grand Jury investigation, and giving me a very short 4 days to report to the Grand Jury, which almost always means an Arrest and Indictment.”
Trump added, “So now, Joe Biden’s Attorney General, Merrick Garland… together with Joe Biden’s Justice Department of Injustice, have effectively issued a third Indictment and Arrest of Joe Biden’s NUMBER ONE POLITICAL OPPONENT, who is largely dominating him in the race for the Presidency. Nothing like this has ever happened in our Country before, or even close… It is a very sad and dark period for our Nation!”
While it is unclear what the nature of the indictment might actually be, what is clear is that while Trump was in office, he and his administration, including the Department of Defense acting under his authority, unquestionably suppressed the riot at the U.S. Capitol on Jan. 6, 2021 as Congress considered legal election challenges on the floor of the House and Senate.
In part, we know that because then Acting Secretary of Defense Chris Miller said so to the House Oversight Committee in May 2021: “I had a meeting with Trump on 3rd of January concerning some international threats and at the very end, he asked if there were any requests for National Guard support.” Miller relayed what Trump said to “Fill it and do whatever’s necessary to protect the demonstrators.”
Trump said on Truth Social on June 9, 2022 that he had authorized up to 20,000 National Guard troops if they had been requested but those requests didn’t come: “The Unselect Committee has now learned that I, as President suggested and offered up to 20,000 National Guard, or troops, be deployed in D.C. because it was felt that the crowd was going to be very large. Crazy Nancy Pelosi turned down the offer, she didn’t like the way it looked. Likewise, the Mayor of D.C.”
The only request for National Guard was a limited request by Washington, D.C. Mayor Muriel Bowser, according to a March 18, 2021 report by the Department of Army Headquarters that outlined specifically what actions were taken, and under what authority: “On December 31, 2020, Mayor Bowser requested DCNG support of bot the Metropolitan Police Department (MPD) and the DC Fire and Emergency Medical Services (FEMS) during planned First Amendment demonstrations on January 5-6. The Mayor explicitly directed that ‘no DCNG personnel shall be armed during this mission, and at no time, will DCNG personnel or assets be engaged in domestic surveillance, searches, or seizures of US persons.’ Later that day the [DC Homeland Security and Emergency management Agency] HSEMA requested six crowd management teams to manage crowds at specified Metro stations and a team to assist at 30 designated traffic posts. HSMEA requested personnel from 0730 to 2400 on January 5 and 6, and specified that they were to be equipped with visibility vested and lighted wands.”
According to the National Guard, on Jan. 6, 2021, 1,110 National Guardsmen were sent in on top of the more than 300 who were there that very day, plus 6,200 in the days that followed, by Miller, who acted under the authority of former President Trump to restore order to the Capitol. Whatever was on the ground both prior to and after the riot began were all acting under the President’s authority.
According to the press statement by the National Guard on Jan. 8, 2021, “At around 2 p.m., D.C. Mayor Muriel Bowser requested more assistance. Acting Defense Secretary Chris Miller immediately called up 1,100 members of the D.C. National Guard. At the same time, officials were collecting Guardsmen at traffic points and Metro stations and returning them to the D.C. Armory to refit for a crowd control mission, the secretary said. Their mission was to support D.C. Metropolitan Police and Capitol Hill Police. Guardsmen started flowing into the area of the Capitol soon after and reinforced Metro Police on the perimeter of the Capitol. This allowed the police and FBI to clear the chambers and offices of the U.S. Capitol…”
And it worked, according to then Secretary of the Army Ryan McCarthy, from the statement: “By 7:15 [p.m.], both chambers and leadership offices were cleared, and members were able to return to business, and we began the planning for the following day.”
The press statement continued, “At 6 p.m., Miller authorized the mobilization of up to 6,200 National Guard members from Maryland, Virginia, New York, New Jersey, Delaware and Pennsylvania. These service members will flow into the city over the next few days and will help secure the peaceful transfer of power to President-elect Joseph Biden on Jan. 20.”
Now, one can argue about whether there were enough forces to begin with, and whether D.C.’s minimal request for assistance from the National Guard should have been overridden by Trump, but those are all political questions with which the President had discretion. He didn’t have to offer assistance or honor the request for assistance, and yet, he did both.
The Army reported also outlined under what authority to D.C. National Guard acts, confirming the chain of command that was in place that day and every day for that matter, with the President ultimately in charge of the Guard: “As provided in D.C. Code Sec. 4-409, the President is the Commander-in-Chief of the District of Columbia National Guard (DCNG); but through Executive Order 11485, dated 1 October 1969, he authorized and directed the Secretary of Defense (SecDef) to ‘supervise, administer and control’ the DCNG. By memorandum dated 10 October 1969, SecDef directed the Secretary of the Army (SecArmy) to act for him in matters related to the District of Columbia (D.C.) Army National Guard, and directed SecArmy to ‘command, through the Commanding General of the National Guard, all operations of the Army and Air National Guard elements,’ and ‘after consultation with [SecDef] and subject to the direction of the President as Commander-in-Chief, and in accordance with the Interdepartmental Action Plan for Civil Disturbance, may order out the National Guard under Title 39 of the District of Columbia Code to aid the civil authorities of the District of Columbia.’”
Additionally, per the Army report, “The President appoints and commissions the Commanding General (CG) of the DCNG, and may remove the CG from office at any time.” Trump appointed all of the officials who were directly responsible for D.C. Guard and controlling any civil disturbances in Washington, D.C., and they acted that very day, on Jan. 6, 2021, under the Commander-in-Chief’s authority, to order out the Guard and restore order.
As for the Save America Rally on Jan. 6, 2021, former President Trump explicitly urged everyone to “peacefully” protest the Electoral College certification of Joe Biden as President-elect: “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
Unfortunately, call for peaceful protest was not heeded, as some of the crowd breached the perimeter around the Capitol, attacked police officers and then proceeded into the U.S. Capitol, broke down doors, smashed windows and made their way to the floors of the House and Senate.
Under no standard of law would Trump’s speech ever constitute incitement of insurrection, as they are political speech fully protected under the First Amendment of the U.S. Constitution, and yet that’s exactly what the U.S. House of Representatives charged him with, incitement of insurrection, for which Trump was acquitted by the Senate. The single article of impeachment states the President “willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol.”
After the violence began, Trump immediately urged his followers to stop on Twitter on Jan. 6, 2021, stating: “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!”
I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!
— Donald J. Trump (@realDonaldTrump) January 6, 2021
And on Jan. 13, 2021, the President issued another statement denouncing violence: “In light of reports of more demonstrations, I urge that there must be NO violence, NO lawbreaking and NO vandalism of any kind. That is not what I stand for, and it is not what America stands for. I call on ALL Americans to help ease tensions and calm tempers. Thank You.”
So, there were calls for peaceful demonstration both before and after the riot.
In Brandenburg v. Ohio in 1969, the Supreme Court found “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That was a case of white supremacists who in demonstrations were in fact advocating the overthrow of the government, however, as there was no actual attempt to do so, was protected political speech.
In the case of Jan. 6, 2021, there was no call by Trump to engage in any rioting, insurrection, rebellion or any violence of any sort. And, ironically, the riot prevented the legal election challenges from being heard on the floor of Congress, which were not voted upon in the House until 11:08 p.m. on Jan. 6, 2021 and 3:08 a.m. on Jan. 7, 2021 for the objections to Arizona and Pennsylvania, respectively. However, an objection to the electors from Georgia was withdrawn after the riot.
Critically, when the objections that were heard on the floor of Congress were heard, former Vice President Mike Pence stated for the record that they had been made “in accordance with the law”—as if there was any doubt, challenges to the Electoral College are heard by Congress—underscoring that Trump’s speech at the Save America Rally on Jan. 6, 2021 was a First Amendment-protected political speech. He had a right to challenge the election. The election challenges that were heard by Congress have nothing to do with the riot, which interfered with that process. It prevented the challenges from being heard.
As for the riot itself, again, the indictment against Trump if it is coming, it appears the Justice Department will have to attempt to argue that Trump both simultaneously incited the riot and then acted to put it down. And yet, he had the First Amendment right to make his speech and he had the power to put the National Guard on the ground prior to the speech, which he and his administration via the chain of command did.
But it’s not about the facts, it’s really about attempting to interfere with the 2024 election by wrongly under Section 3 of the Fourteenth Amendment that disqualifies anyone “who, having previously taken an removing Trump from the ballot oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same” from being a Senator or a Representative, or an Elector for President or “any office, civil or military, under the United States” upon simple majority votes of Congress signed into law by the President under Section 5, which grants Congress “power to enforce, by appropriate legislation, the provisions of this article.”
Otherwise, the criteria to run for President is the person must be at least 35-years-old and a natural born citizen. In this case, then, the Justice Department could be attempting to bring a charge of rebellion or insurrection against Trump, leaving his fate and the fate of the 2024 election in hands of a jury of 12 “peers,” rather than in the hands of the American people voting at the ballot box, undermining democratic and constitutional norms.
Finally, Trump did not participate in the riot at the Capitol, instead he told everyone to disperse and activated the National Guard the same day to put it down. He cannot have participated in and suppressed the riot, even if Congress wants to later say it was an attempt to overthrow the government (dealer’s choice there), but Congress has not done so.
It is also worth noting that Congress has not passed any law declaring Jan. 6, 2021 to be an insurrection, either subject to the Insurrection Act or the Fourteenth Amendment. As for the Insurrection Act, it is up to the President at the time to determine whether there is a rebellion taking place that, whether at the request of the state, or if, for whatever reason, the rebellion prevents a state from calling up the National Guard, necessitating the President to do it himself.
In the case of Jan. 6, 2021, none of that was necessary, because the D.C. National Guard was already on the ground on Jan. 6 prior to the riot, as minimal as that was, and that after the riot began, additional forces were put on the ground under the President’s standing authority and at the D.C. Mayor’s request, and within hours the crowd was dispersed. Everything Trump might be indicted for will be things either he had the authority to do as President and Commander in Chief, or had a First Amendment right to challenge the results of the election. No where is there any allegation he interfered with suppressing the riot.
Because Trump suppressed it.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
