“All. Old. News.”
That was the verdict rendered by the House Judiciary Committee Republicans led by Rep. Jim Jordan nearly one hour into the January 6 Committee’s prime-time hearing. Those Republicans who are invested in discrediting this committee are going to struggle to convince the public that they’ve heard it all before. That’s due in no small part to the fact that they have not.
We did not know that Republican lawmakers sought preemptive presidential pardons for their roles in the events leading up to January 6. We did not know that, according to what Cheney billed as direct quotes, Trump reacted to the chants of “hang Mike Pence” by saying, “Maybe our supporters have the right idea” and Pence “deserves it.” We did not know the number of occasions on which White House Counsel Pat Cipollone threatened to resign along with his team, which Jared Kushner described as “whining.” We did not know the regularity with which Trump administration officials were informing the president that he was peddling demonstrably false claims about election fraud, which did not dissuade the president from continuing to do just that.
Most consequentially, we had no confirmation that Donald Trump abdicated his duties as commander-in-chief of the armed forces, and that power was usurped out of necessity by the vice president.
What was Donald Trump doing on January 6 between 2:26 p.m., when Capitol Police Chief Steven Sund made an “urgent immediate request for National Guard assistance,” and 5:40 p.m., when Guardsman finally arrived at the Capitol? The details of Trump’s conduct were vague, but it has long been rumored that Vice President Mike Pence “played a key role in coordinating with the Pentagon” to save from a violent mob both lawmakers and the process of transferring power from one administration to another. According to Rep. Liz Cheney, however, the committee has at least learned what Trump was not doing.
Even as besieged lawmakers on Capitol Hill “begged the president for help,” she revealed, Donald Trump did nothing. “He placed no call to any element of the United States government to instruct that the Capitol be defended,” she continued. “He did not call his Secretary of Defense on January 6. He did not talk to his Attorney General. He did not talk to the Department of Homeland Security. President Trump gave no order to deploy the National Guard that day, and he made no effort to work with the Department of Justice to coordinate and deploy law enforcement assets.”
Cheney alleged that Mike Pence, surrounded by mayhem and witnessing a vacuum in leadership, simply assumed for himself the constitutional powers vested in the president and took command of the situation. Moreover, according to testimony provided by Chairman of the Joint Chiefs of Staff Gen. Mark Milley, the military was instructed to cover that fact up. Milley testified that Mark Meadows, Trump’s White House chief of staff, “said, ‘We have to kill the narrative that the vice president is making all the decisions. We need to establish the narrative that the president is still in charge and that things are steady or stable’ or words to that effect.”
This allegation represents nothing less than the breakdown of constitutional order. As constitutional scholars David Barron and Martin Lederman write of the Commander in Chief Clause of Article II, Section 2 of the Constitution, “the textual designation of the President as the Commander in Chief was intended to ensure that that officer, and no other, would be ultimately responsible for performing that role, whatever it was to entail.” That suggests that Congress cannot circumvent the president legislatively, but also that the command of the armed forces of the United States cannot devolve “to anyone other than the President.” Unlike every other state and territory in the country, the Washington D.C. Army National Guard reports only to the president. Even in the absence of the attempted cover-up that Milley alleged, this is a scandal that Congress was obliged to litigate.
Of course, Congress did just that. The president was impeached for his conduct on January 6, but Republicans in the legislature saw fit to acquit him. If, however, these members of Congress were aware that the constitutional order had broken down when they cast that vote—if they knew that Trump had shirked his duty to defend the people’s representatives from a violent mob because the mob shared his political goals—and they still voted against conviction, those members violated their oaths to “defend the Constitution of the United States against all enemies, foreign and domestic.”
We do not know what those members did or didn’t know when those votes were cast. It’s unlikely that we ever will. But the preponderance of evidence, which grows by the day, indicates that Donald Trump stood aside while a mob sought to do violence to the First Article of the Constitution in the name of the Second. A crime of this historic scale must not go unpunished.