US-NEWS-CONGRESS-ELECTION-CAPITOL-GUARD-SIP

National Guard members work the perimeter of Capitol Hill on Thursday in Washington, D.C.

Listen to this article

During Wednesday’s insurrection at the U.S. Capitol building while Congress held a joint session to certify the presidential election, news reports discussed the requests for National Guard forces to try to help restore order.

As discussed in this spot several months ago about the National Guard in general, the District of Columbia has its own National Guard. Legislated by Congress originally as an organized militia to protect the district as the seat of the U.S. government, it has legislatively evolved into the modern form of a National Guard.

Organized and equipped along the lines of the U.S military, the D.C. Guard’s mission is exclusively federal, as opposed to state Guards, which are allowed under federal law to serve the interests of their respective states under those states’ particular laws.

Under federal law, the president is the commander-in-chief of the D.C. Guard. The president authorizes the secretary of defense to supervise and control the D.C. Guard while in its militia status (i.e., not deployed overseas). The secretary may order the Guard mobilized to aid D.C. civil authorities, but subject only to the direction of the president.

Thus, while reports circulated about House Speaker Nancy Pelosi and D.C. Mayor Muriel Bowser requesting the Guard to help restore order, only the president, or his secretary of defense, may order it to do so. The D.C. mayor has no authority and is not in the chain of command of the D.C. Guard. The D.C. metropolitan police did request Guard assistance for crowd control in preparation for the rally that preceded Wednesday’s riots.

Reports are that fewer than 400 of D.C.’s available 1,100 Army Guardsmen were approved for deployment at the start of the day by the acting secretary of defense (Trump fired Secretary Mark Esper on Nov. 9).

The D.C. Guard may assist civil authorities with uncivil disturbances. Federal law states that whenever the president is unable to execute the laws of the United States, they may call the D.C. Guard into service to the extent the president considers it necessary to help execute those laws.

Among the laws under assault Wednesday were sedition, trespassing, destruction of government property and assaulting police officers. While a large number of people lined the Capitol’s porticos, many others smashed the doors and rampaged through hallways, offices and the House and Senate chambers. Planted explosives were found nearby. It was the first mass breach of the Capitol since the British Army torched it in 1814 during the War of 1812.

While the Capitol police, D.C. metropolitan police and Speaker of the House called early on for more Guard assistance, such authority rests with only one person — the president. That call by the commander-in-chief was conspicuously absent.

Under the mobilization law, the president may also call upon other states’ Guards to assist in enforcing federal law. That, too, was conspicuously absent. Late in the day, all of the D.C. Guard, and some Virginia Guardsmen, finally arrived.

Peaceful demonstrators for Black Lives Matter were tear-gassed and beaten by police under the law-and-order president.

The only thing taking a beating Wednesday was American democracy.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.

Trending Videos