There’s still a key mystery at the heart of Wednesday’s assault on the Capitol: What was Vice President Mike Pence’s role in deploying the D.C. National Guard?
Questions linger over why the unit wasn’t deployed at the start, and conflicting early reports about Pence’s involvement in authorizing the unit’s activation to quell the insurrection raised a far more serious question: Was there a violation in the chain of command amid the chaos and panic of the assault?
The answer is likely no, though the circumstances of Pence’s role in the matter remain unclear. Subsequent reporting has suggested that acting Secretary of Defense Chris Miller “consulted” with Pence on the matter, along with senior congressional leadership.
But even that still raises questions, given that Pence lacks any statutory authority over the military and that President Trump remains commander-in-chief.
Dr. Lindsay Cohn, an associate professor at the Naval War College and an expert in civil-military relations, told TPM that while Pence being consulted didn’t implicate any chain of command issues, it did reflect a “leadership vacuum.”
“The inference that I would draw is that the President was not interested in being involved in that discussion at all,” Cohn said. “That’s consistent with the overall lack of planning that we saw – there seems to have been an overall lack of leadership from the White House on planing and preparation for this, for what we all consider to have been a fairly predictable day of unrest.”
D.C. Mayor Muriel Bowser, along with congressional leadership, asked the Pentagon to approve a request to activate the D.C. National Guard on Wednesday before receiving an initial refusal.
Within an hour, however, the request was approved, with acting Defense Secretary Miller issuing a statement saying that he had spoken with Pence and top congressional leadership – everyone who mattered except Trump.
According to Rachel VandLandingham, a military law expert at Southwestern Law School, Pence’s involvement may have been unprecedented, but wasn’t illegal.
“How often the Vice President is consulted on these issues is rare, but we haven’t had these issues since the War of 1812,” she said. “They probably wanted to consult with Trump, but he seemed to be inciting the insurrection.”
The prospect of Pence – confronted either with a radically uninterested or insurrectionist President – on the ground at the Capitol as a mob of Trump supporters swarmed the complex, providing advice would go less towards issues around the chain of command.
The last time a vice president was seriously confronted with any of these issues took place on 9/11, when Dick Cheney purportedly gave authorization to shoot down outstanding hijacked jets.
But that’s a far cry from what happened on Wednesday, executive director of the 9/11 Commission Philip Zelikow told TPM in an email.
“In the 9/11 case, the issue was commander-in-chief authority in an ongoing military operation against an apparent foreign attack,” Zelikow wrote. “There was conflicting testimony about the timing of the presidential authorization, but no one thought the President was unable or unwilling to act.”
In the case of the Capitol insurrection, however, there was clear statutory authority on who could activate the unit – and even then, the “ongoing assault on federal property” could be construed to give Pence legal authority to authorize the Pentagon’s response.
“The President could have overruled him, and did not,” Zelikow added.