Page:Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol.pdf/775

 minute lag-time in making a relatively small, but riot-trained and highly capable military unit available to conduct one of its statutory support missions.

While the delay seems unnecessary and unacceptable, it was the byproduct of military processes, institutional caution, and a revised deployment approval process. We have no evidence that the delay was intentional. Likewise, it appears that none of the individuals involved understood what President Trump planned for January 6th, and how he would behave during the violence. Imperfect inter-government and intra-military communications as the January 6th rally morphed, with President Trump's active encouragement, into a full-blown riot at the Capitol also help explain the time it took to deploy Guard troops to the Capitol after their assistance there was requested and approved. Post-hoc evaluation of real-time communications during an unprecedented and evolving crisis and limited tactical intelligence, nevertheless, carries the risk of a precision that was unrealistic at the time. It is also clear from testimony provided to the Select Committee that DoD and DC National Guard leaders have differing perspectives that are not reconcilable regarding the timing of deployment authorization.

Where the DC Guard's deployment on January 6th is concerned, then, the "lessons learned" at this juncture include: careful evaluation on the basis of limited information may take time; statutorily constrained intergovernmental requests for assistance and multi-level approval processes are complex and may be time-consuming; any visible military presence in the domestic setting is circumscribed by law and triggers considerable, constitutionally-driven sensitivities; and crisis communications are often imperfect, especially in unforeseen and rapidly evolving situations.

DC Code § 49-409, ("The President of the United States shall be the Commander-in-Chief of the militia of the District of Columbia."), available at https://code.dccouncil.gov/us/dc/council/code/sections/49-409 (The DC National Guard is the "organized militia" of the District of Columbia. DC Code § 49-406, available at https://code.dccouncil.gov/us/dc/council/code/sections/49-406). Subject to that top-level command distinction, the DC National Guard is, when acting in its civil support or militia capacity, comparable to the National Guard of the various States, which act as those States' militias. 32 U.S.C. §101(4) ("Army National Guard" statutorily defined as "that part of the organized militia of the several States . . . and the District of Columbia . . ."). The Department of Justice's Office of Legal Counsel has interpreted the DC Code provisions authorizing the DC National Guard's use as a militia in support of DC law enforcement activities as within the exemptions from the Posse Comitatus Act's prohibitions on use of the military for domestic law enforcement (18 U.S.C. § 1385 ("Whoever, except in cases and under conditions expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air