Considerable attention has focused on what led to the impaired federal response to the explosive riots on January 6th, where battered Capitol Police – including Officer Brian Sicknick, who was killed by rioters, and 140 officers who suffered injuries – waited over three hours before the Pentagon and National Guard came to their aid, among other deficiencies that day. In the search for an explanation for how rioters were able to breach the Capitol Building without a more immediate and stronger reaction from federal forces, officials have been reluctant to take responsibility for the resulting chaos, pointing fingers and deflecting blame.
“The failures are obvious,” Sen. Amy Klobuchar (D-MN) told the New York Times. “To me, it was all summed up by one of the officers who was heard on the radio that day asking a tragically simple question: ‘Does anybody have a plan?’ Sadly, no one did.”
While many analyses have touched on the role that failures of imagination and intelligence played in inhibiting the ability of federal officials to anticipate and react to the January 6th rioters, competing testimonies from former senior Department of Defense (DOD) and Justice Department (DOJ) officials have left Congress unable to answer a seemingly basic question: who exactly was in charge? Some commentators and analysts have noted the chaos caused by the inability of officials to identify a clear lead federal agency. But what has been largely overlooked is a significant set of statements by current senior Army officials: the lead agency failure cost the protection of the Capitol significantly.
I first discuss the publicly available information as to who was the lead federal agency for Jan. 6, and, second, I discuss the consequences of the apparent absence of such leadership.
Absence of a Lead Federal Agency for Jan. 6
As early as January 7th, the DOD signaled that it understood the DOJ to be acting as the lead federal agency “in charge of security preparations and response on January 6.” Then-Acting Defense Secretary Chris Miller, then-Secretary of the Army Ryan D. McCarthy, and Army Chief of Staff General James McConville have all reiterated this understanding in their testimony before Congress.
In his own testimony, however, former Attorney General Jeffrey Rosen denied that the DOJ was the lead federal agency to coordinate security preparations and maintained that the Department’s role was limited to “specific responsibilities for coordinating intelligence and information sharing with respect to the federal agencies, DHS, Interior, DOD.” His response prompted a frustrated Rep. Debbie Wasserman Schultz (D-FL) to state that “nailing down who was in charge has been like trying to nail jello to a wall, and the old adage that when everybody is in charge, then nobody is in charge appears to be what happened on January 6th.”
One possible (and somewhat charitable) explanation for this discrepancy may be that DOD officials, based on prior experience, presumed that the DOJ would have the lead. Existing precedent and internal government policies assign the Attorney General responsibility for leading military operations in response to domestic civil disturbances. This subordination to Justice Department authorities is grounded in “the constitutional commitment to civilian oversight of the military, which is especially important when it comes to use of military force against Americans on domestic soil,” as Ryan Goodman and Steve Vladeck have described it. Indeed, that same principle may have also motivated Army officials’ alleged concern with the “optics” of having the military engaged in law enforcement operations on Jan. 6.
Miller’s testimony suggests that the lack of a lead agency could have been due to a communication gap. While the DOJ may have been reminded that it “typically serves as the lead federal agency for domestic law enforcement activities,” it is not entirely clear that this leadership role or its scope was expressly stated in preparation for Jan. 6 events. A source for the Washington Post claimed that the DOJ’s role as lead federal agency was to coordinate between the DOJ, FBI, DOD, and the Interior Department but “did not cover the Capitol,” where Capitol Police were in charge. In fact, “the designation was so vague” that the DC officials and the D.C. National Guard appear to have been unaware “that the Justice Department was functioning as the ‘lead agency.’”
Then-Army Secretary McCarthy’s account before the Senate and news reports, however, casts doubt that the DOJ’s role as lead was merely a presumption. According to McCarthy, the DOJ was established as the lead federal agency on Jan. 3, after the Acting Secretary of Defense (Miller) and Chair of the Joint Chiefs of Staff (General Mark Milley) met with then-President Trump. But from the beginning, the DOJ appeared reluctant to take a leading role in security preparations. The Washington Post’s source, a former Pentagon official, stated that “Army leadership wanted to ensure there was a command-and-control architecture for appropriate decision-making and information-sharing before and during the event,” but “the Justice Department fell short of ensuring” this line of command.
McCarthy also stated that he was never provided with an official point of contact by DOJ, and DOD told the Senate that the DOJ did not conduct interagency rehearsals or develop an integrated security plan, something the DOJ did as lead federal agency in anticipation of the 2020 Black Lives Matter protests, and something they did in preparation for President Biden’s inauguration following the events of Jan. 6. Lt. Gen. Walter Piatt and Lt. Gen. Charles Flynn testified that DOD had asked for a lead federal agency and that DOJ failed to provide an integrated security plan.
Even Miller, who appears to have been told that Acting Deputy Assistant Attorney General Robert Donoghue was the operational lead for the DOJ, attested to the lack of leadership from the department. It was Miller, not anyone from the supposed lead federal agency, who coordinated and convened calls with Cabinet members on January 6th. That was an unusual role for DOD, so why did the Pentagon step in? “Somebody needed to do it,” Miller said. Miller was adamant that this leadership role could not be taken on by the DOD without undermining civilian interests but reiterated that he felt that he had no choice given the void in interagency leadership. In his written testimony, he stated:
I want to be VERY clear – it is NOT and was NOT the role of the Department of Defense to convene these sorts of interagency and intergovernmental meetings or calls concerning domestic law enforcement matters. I want to repeat that point – it is not in the best interests of the citizens of the United States, our Armed Forces or our constitutional form of government for the Department of Defense to take a lead role in organizing a domestic law enforcement response. But I felt it was my responsibility to initiate these discussions given my sense that these efforts and coordination were not tightly wired at that point.
(emphasis, including all caps and bold text, in original)
Rosen may have had other reasons to back away from taking the reins in planning security measures in advance of Jan. 6. On Jan. 3, President Trump had been considering firing Rosen over his reluctance to pursue election fraud claims in a meeting press reports described as “an ‘Apprentice’-like battle.” While his position was ultimately saved by the threat of mass resignations from department officials, Rosen may have been reluctant to be seen by some as developing a plan to combat President Trump’s supporters. For his part, Rosen believes that the level of preparation on the part of the DOJ was adequate and emphasized that his own role was “to ensure that the DOJ organization was appropriately fulfilling its functions,” a role he says he satisfied.
Consequences of Absence of Lead Federal Agency on Jan. 6
Two senior Army officials involved in responding to the Capitol attack on Jan. 6 were blunt in their response to members of Congress about the impact of failure to have a lead agency.
The details of the federal security apparatus on January 6 remain murky, particularly as departments continue to withhold information from investigating committees. What is clear, however, is that the method of maintaining security in the nation’s capital is a “convoluted” labyrinth of bureaucracy. A lead federal agency was critical to navigating this thicket and to preparing federal forces for protection of the large-scale event at the Capitol. The Senate Report in June indicated that nearly every DOD official questioned pointed to the lack of a lead agency and integrated security plan as inhibiting the security response to the Capitol and contributing to the delay in providing relief for Capitol officers. However, the most dramatic and blunt testimony came in the most recent public hearing before the House Oversight and Reform Committee.
General Charles Flynn’s exchange with Rep. Danny Davis (D-IL) was striking:
REP. DANNY DAVIS: “DOJ was either unaware of or resisted its lead agency role. According to the Joint Senate Report, Army Chief of Staff General McConville noted, and I’m quoting, ‘DOJ did not conduct any interagency rehearsals or have an integrated security plan, as DOJ did during the summer 2020 protests when it had [also] been designated as the lead federal agency.’ According to the Senate Report, General McConville, and I quote, ‘stressed the importance of integrated security plans and acknowledged that had there been one on January 6th, DOD’s response time would have been quicker.’ General Flynn, had [the] DOJ played a more proactive role in coordinating the federal security preparations prior to January 6, do you think the federal response would have been quicker?”
GEN. FLYNN: “Congressman, I can’t answer for the Department of Justice, however, what I would say is that integrated security plan, pre-federalized soldiers and airmen, a rehearsal, and an integrated security plan would have assisted us when the crisis rapidly escalated and the violence went in a direction that was unforecasted” (emphasis added).
Both Flynn and Lt. Gen. Piatt pointed to the lack of a lead federal agency as a critical impediment to the security response on January 6, and both included the need for such a lead federal agency in the lessons learned from the Capitol attack. In response to Rep. Peter Welch’s (D-VT) question of whether a designated lead federal agency, an integrated security plan, and better intelligence sharing would have been helpful, Piatt stated: “Sir, that would have been extremely helpful. That’s what we did, sadly, after 6 January, in the lead up for the security plan for the inauguration. We had a lead federal agency. We had an integrated plan. We had shared understanding of indicators and warnings, intelligence, and one lead federal agency” (emphasis added).
Similarly, when Rep. Jamie Raskin (D-MD) asked General Flynn what circumstances allowed the events on January 6 to happen, Flynn listed four actions that government and military officials “could” and “should” have undertaken in planning: “The first one, there should have been clearly a lead federal agency designated. The second one is we should have had an integrated security plan. The third one is… information and intelligence sharing on criminal activities before the 6th of January. And then the fourth one would have been, we should have pre-federalized certain National Guard forces so that they could have immediately been moved to the Capitol and had those authorities in place before this happened” (emphasis added).
Certainly, other factors contributed to the National Guard’s delayed arrival and limited function on Jan. 6. Miller went so far as to claim that the DOD’s slow response was necessary: “Good leaders slow things down to plan and then brief their Soldiers, ultimately saving time and lives.” Relatedly, Robert Contee, Chief of Police of the Metropolitan Police Department, was less sympathetic to Army’s claims that a need for planning delayed their response, noting that “I was able to quickly deploy my force and issue directives to them while they were in the field, and I was honestly shocked that the National Guard could not – or would not – do the same.”
Major General Walker, then-Commander of the D.C. National Guard stated that he could have implemented a faster response from his forces without the DOD’s slow authorization, something that Walker maintains could have prevented the scale of violence on Jan. 6.
The testimony of these current federal officials suggest that without the leadership of a lead federal agency, federal officials were ill-prepared and unable to coordinate a rapid response to a direct invasion of the U.S. Capitol during a critical moment for the democratic transfer of power.
This absence of a lead federal agency on Jan. 6 raises several questions. Why exactly was there no clear lead agency? Why was a lead agency designated for the Black Lives Matters protests months earlier but not for the large-scale events planned on Jan. 6? Was the failure due to a communication gap, or did the DOJ shirk or recoil from the responsibility? Was the DOJ distracted by the White House pressure campaign and near ouster of Rosen? Or is the DOD simply passing the buck? The answers will help to understand the causes of the law enforcement failures and to address issues of accountability. These are critical questions for the House select committee – and investigative journalists – to pursue.