Heather Cox Richardson

Tonight the Washington Post reported that the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol is weighing possible criminal referral for former president Trump, focusing on the 187 minutes between Trump’s urging his supporters to march on the Capitol and the video he finally released telling them to stop.

During that period, Trump was inundated with text messages and phone calls begging him to call off his supporters. Famously, when then–House Minority Leader Kevin McCarthy (R-CA) urged Trump to stop the violence, then-president Trump responded: “Well, Kevin, I guess these people are more upset about the election than you are."

Committee chair Bennie Thompson (D-MS) told Washington Post reporters Tom Hamburger, Jacqueline Alemany, Josh Dawsey, and Matt Zapotosky that the committee is interested in why the president delayed more than three hours before intervening. He reiterated that the committee wants to know if Trump was derelict in his duty and whether he criminally obstructed Congress from counting the certified ballots: interfering with an official proceeding is a crime.

The House can make a referral to the U.S. Attorney’s Office for the District of Columbia, but that referral has no legal effect and is generally intended to inform the Justice Department of something it doesn’t know. The U.S. Attorney’s Office issued a statement after the House’s referral of Trump’s White House chief of staff, Mark Meadows, for criminal contempt of Congress: “As with all criminal referrals, we will evaluate the matter based on the facts and the law, and the Principles of Federal Prosecution.”

Thompson said the committee is especially interested in the multiple videos Trump recorded before he finally got one his team felt it could release. The earlier ones were unacceptable because he would not say what was needed to calm the rioting, and the committee wants to hear what is in them.

It seems to me there is also something very odd about that video, in that it appears to have been shot outside the White House at a time when the Capitol was under attack and the next three people in the line of succession to the presidency were all inside the besieged building. The fact that Vice President Mike Pence, House Speaker Nancy Pelosi (D-CA), and President Pro Tempore of the United States Senate Chuck Grassley (R-IA) were all in the same building was unusual by itself, and that they were under attack together was unprecedented. Even aside from normal procedures, with the line of succession in such danger, why wasn’t the president himself in a secure location, rather than outside the White House recording multiple takes of a video?

It seems so odd to me, I feel like I must be missing something obvious.

The multiple videos are among the materials the January 6th committee has subpoenaed from the National Archives and Records Administration (NARA). Trump has sued to block NARA from complying with the subpoena, saying it violates executive privilege, although it’s the actual president, not a former president, who can invoke executive privilege and President Joe Biden has refused to in this case. U.S. District Judge Tanya S. Chutkan denied Trump’s request for a preliminary injunction, and a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld that decision on December 9.

This morning, Trump appealed the decision to the Supreme Court, continuing to assert that he has the right to invoke executive privilege over the materials in order to protect the office of the president. Later in the day, Thompson asked the court to move quickly on Trump’s request, suggesting it should decide by January 14.

Trump’s video of 4:17 p.m. on January 6 is under consideration for another reason, too.

One of the big questions about January 6 is why it took the National Guard more than three hours to get to the Capitol after the Capitol Police had called for help. On Tuesday, Ryan Goodman and Justin Hendrix of Just Security published a deeply researched article suggesting that the Pentagon was concerned that Trump would invoke the Insurrection Act of 1807, which gives the president the power to use the military, including National Guard troops, to stop civil disorder or insurrection. Goodman and Hendrix suggest that military leaders worried Trump would use troops deployed to the Capitol in order to hold onto power, and they note that the Pentagon did not let the National Guard deploy until after Trump released the video telling supporters to go home.

While observers have attributed the Pentagon’s reluctance to let the guard help either to bureaucratic inefficiency or to a deliberate effort to help Trump, the idea that Pentagon leaders were concerned about Trump trying to use the military to keep him in office lines up with other things we know about that period.

Military leaders spoke out against the actions of Defense Secretary Mark Esper and Chairman of the Joint Chiefs of Staff Mark A. Milley on June 1, 2020, when they walked next to Trump to St. John’s Episcopal Church after soldiers had cleared protesters from Lafayette Square. Both Esper and Milley apologized publicly, with Milley saying: “I should not have been there. My presence in that moment, and in that environment, created the perception of the military involved in domestic politics.”

The concern that Trump had plans for using the military to keep himself in power only grew after we learned that on June 1, Trump’s aides had drafted an order to invoke the Insurrection Act and deploy thousands of troops in Washington, D.C. Then–attorney general William Barr, Esper, and Milley objected and talked him out of it, and from then on, military leaders were vocal about their loyalty to the Constitution rather than to any particular leader.

Immediately after losing the election, Trump fired Esper (by tweet), and Barr resigned on December 23, 2020, so they were no longer there to object should he try again to invoke the Insurrection Act. He and his supporters, including Alex Jones of InfoWars and one-time national security advisor Michael Flynn—both of whom have been subpoenaed by the January 6th committee—repeatedly suggested he could declare martial law to hold a new election or to stop Biden from taking office.

On January 3, all ten living defense secretaries were concerned enough that they published a joint op-ed in the Washington Post, reminding Americans that “[e]fforts to involve the U.S. armed forces in resolving election disputes would take us into dangerous, unlawful and unconstitutional territory. Civilian and military officials who direct or carry out such measures would be accountable, including potentially facing criminal penalties, for the grave consequences of their actions on our republic.”

On January 5, Trump asked acting Secretary of Defense Christopher Miller to have 10,000 National Guard troops ready for the January 6 rally, and Meadows wrote in an email that the National Guard would “protect pro Trump people.”

Goodman and Hendrix make a strong case that Trump and his loyalists were at least considering using the excuse of chaos at the Capitol—as we know, they expected counter-protesters to show up, and appear to have expected violence—to invoke the Insurrection Act and prevent the counting of the certified ballots by force.