Exclusive: Officials Bypass Donald Trump to Protect DC from Insurrection After Capitol Riot

Trump supporters clash with police
Trump supporters clash with police and security forces as they push barricades at the US Capitol in Washington D.C on January 6, 2021. How do you halt an insurrection if the president is the insurrectionist? ROBERTO SCHMIDT/AFP/Getty

Extraordinary last-minute arrangements for the security of the nation's capital began to form Wednesday evening after the unprecedented breach of security by pro-Trump rioters—arrangements that, according to senior military officials, are bypassing the Constitution and President Donald Trump.

"The president, as Commander in Chief, has the sole responsibility to direct the armed forces to put down insurrections and execute the laws," one senior Judge Advocate General in Washington told Newsweek in an early morning email. "But there is no established system to employ the military if the president himself is the instigator of an insurrection."

The general officer spoke on condition of anonymity because he is not authorized to speak for the Department and he fears reprisals in the current political environment, he said.

"The national security leadership might conclude under the current circumstances that the White House needs to be circumvented anyhow given the volatility of the president, but because this is also the District of Columbia, other rules apply. The Constitutional arrangement is that the states retain the primary responsibility and authority to provide for civil order, including the protection of property. That doesn't fully apply here in Washington because the District isn't a state."

That's why there have long been special arrangements for the capital city. But these are arrangements, another retired senior officer with direct knowledge of the situation says, that ultimately cannot be sustained—particularly if the president issues countermanding orders to the armed forces. The officer, once a commander of the U.S. Northern Command, requested anonymity because he is consulting with his former command on employment of military forces domestically.

The lawyer says there will now be various National Guard units deployed under different legal authorities and in multiple chains of command. The "normal" arrangements under U.S. Northern Command and its Joint Task Force-National Capital Region cannot be fully implemented because of the view—already voiced by Pentagon leadership—that the active-duty force should play no role in the election or the transition.

"My guess is that we will see active duty forces carrying out purely military functions—air and maritime defense—and ceremonial duties, but not have anything to do with enforcement of the laws or crowd control," the retired senior officer says. "Will it work? If something else happens? If the inaugural ceremonies are attacked? I just don't know. But at least now we have to take the most catastrophic possibilities into consideration."

As of mid-day Wednesday, six states have announced the special deployment of some 3,000 National Guard forces specifically to respond to the breach of the Capitol building and grounds.

Additional District of Columbia National Guardsmen and women—some 1,000 strong—were deployed yesterday under special orders from district Mayor Muriel Bowser, ultimately approved by both Secretary of the Army Ryan D. McCarthy and acting Secretary of Defense Christopher Miller. Though some news media said the "entire" District force was being mobilized, the DC Guard is made up of 2,700 ground and air personnel, a good number of them not suitable for street duty.

By statute, the District Guard is subordinate solely to the president of the United States. Authority to activate the District Guard has been delegated, by the president, to the Secretary of Defense and further delegated to the Secretary of the Army. It is the only National Guard unit, out of all of the 54 states and territories, which reports only to the president.

And yet there has been no presidential order, and the senior JAG officer says he is unaware of any attempt to seek Donald Trump's approval.

Quite to the contrary, even as ineffective police forces finally shooed the crowds away from the Capitol building last night, making minimal arrests, the District government and the Metropolitan Police Department started thinking about contingency plans should the president order the DC Guard to stand down, an order they might not be able to refuse.

Both Virginia and Maryland began helping on their own governors' Constitutional authorities and under special emergency assistance compacts unique to the "National Capital Region," send troops. Maryland says it provided 500 troops yesterday while the state of Virginia says that for "operational security" reasons it would not divulge how many troops they provided and where they are going.

Late in the evening, New York state announced it would send 1,000 Guardsmen and women "to aid and facilitate the peaceful transition of presidential power," Governor Andrew Cuomo said.

New Jersey also announced that it is sending 500 Guard members, according to a release from Governor Phil Murphy this morning, "to protect our democracy and facilitate the peaceful transition of power."

Delaware Governor John Carney said this morning that he is deploying members of the Delaware Guard "to support law enforcement and ongoing security efforts after the breach of the Capitol."

Both New York and New Jersey say they are providing these additional forces after a request from the National Guard Bureau, which is a Pentagon bureaucracy with no particular power other than to promote the interests of the National Guard as a whole. The Bureau has made no public announcements about the Capitol breach or a beefing up of Washington forces. But military sources say that these additional forces, and more to come, are beyond those already slated to deploy for the inauguration (which takes place from January 15-21).

"The plans for the next two weeks now have to be rewritten but also kept flexible," given the volatility of President Trump and the uncertainties of what kinds of protests still will unfold, the senior JAG officer says. "It may be necessary to find Constitutional and legal processes that have never been employed."

Congress, for instance, the senior legal officer says, is empowered to authorize the militia—today's National Guard—to be called forth to execute federal law. But it is a rarely used power and intended for rare circumstances: ones that certainly now exist, he says.

The Justice Department, the officer says, has to take the central and unchallenged lead in identifying the members of the mob who violated multiple federal laws, both because that is a non-partisan requirement to live under the rule of law and also because the police forces failed so miserably yesterday.

Acting Attorney General Jeffrey A. Rosen announced Thursday that criminal prosecutors were working "throughout the night" with the U.S. Capitol Police, FBI, Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF), and the Metropolitan Police Department "to gather evidence, identify perpetrators, and charge federal crimes where warranted."

"We can't just put military troops on the ground because it makes us feel good," the senior Pentagon lawyer says. "Who commands them, under what authorities, and what powers they truly have now has to be made crystal clear." He warns that the Pentagon's contingency plans and other secret arrangements are inadequate given both the situation and the so many overlapping and competing elements of the federal government.