What gave Pence the authority to call for the military on Jan 6?

[ex-khobar Andy]

Fascinating piece in the Atlantic. I have a subscription but I think anyone can get five articles a month or something like that. If you need me to copy and paste I can do that. I will do the first couple of paragraphs.

Mike Pence Owes the Country an Explanation
The constitutional authority to call out the military is vested in the president of the United States. So what was Pence doing on January 6?
By George Thomas

On January 6, 2021, from a parking garage under the Capitol Visitor Center, then–Vice President Mike Pence ordered the military to defend the Capitol against a violent insurrection. According to a taped deposition of General Mark Milley, the chairman of the Joint Chiefs of Staff, Pence “issued very explicit, very direct, unambiguous orders” to him and Secretary of Defense Christopher Miller: “Get the military down here. Get the Guard here. Put down this situation.”

This is a problem—one that has been overshadowed by the larger events of January 6. The constitutional authority to call out the military to defend the Capitol is vested in the president of the United States, not in the vice president. Why did Pence seize constitutional authority that wasn’t his? The country needs answers to this question, and it needs them from Pence, not from his chief of staff or his counsel.

Apparently the Framers thought about this sort of thing and there was a bit of debate in the Federalist Papers between Jefferson and Hamilton. Both agreed that in extremis it might be necessary to go outside the written law if, for example, the Republic was in danger: but they differed about the mechanics of the process. The most famous example is probably Lincoln suspending habeas corpus at the start of the Civil War. And they agreed that whoever did go outside the written law in such an eventuality had to be prepared to defend that decision at a later date as, in fact, Lincoln did.

So we are waiting for Pence's explanation why he did not wait for Trump to do what was clearly his duty to do. Should be interesting.

[BoSoxGal]

I haven’t read the article yet, but I will note that in the January 6 hearings we have already learned that the military tried calling the commander in chief for orders, and he would not take the call.

I believe as a general theory of military command - and I’m speaking only from my memory of studying it in JROTC in high school - that when a commander is DERELICT in his duty, it falls to the second in command to step up and serve the mission.

Obviously this is a special set of circumstances but the general principle seems to apply.

[ex-khobar Andy]

Yes, I think you are perhaps nearer the Jefferson side of the argument:

Yet, as Jefferson also insisted, the officer who exercises emergency power must justify his actions to “his fellow citizens generally.” For Jefferson, “the good officer” must throw “himself on the justice of his country and the rectitude of his motives.”

Essentially Hamilton said it had to be in the Constitution while Jefferson was a little more pragmatic - you can't foresee every circumstance and sometimes you just have to do what's right and hope that others agree with you, after the fact.

[Bicycle Bill]

I have to agree with BSG — in the absence, incapacity, or sheer ineptitude of a superior, the second-in-command is obligated to assume responsibility.  And if, as BSG avers, Trump was dodging calls while all the bullshit was going down, he was therefore by definition disregarding his responsibilities, absent, or utterly inept (although personally I lean to it as being a combination of all three).

At that point it all comes down to whose ox is being gored.  The person who is being supplanted will likely see it as insubordination, mutiny, or worse.  The person who is assuming responsibility and command sees it as doing what is necessary to save lives, property, or the mission.

-"BB"-

[ex-khobar Andy]

Obviously I agree that Pence was right to step in and take charge. The point I am making is that although he was right, he has to publicly justify his actions. From the piece:

Yet, as Jefferson also insisted, the officer who exercises emergency power must justify his actions to “his fellow citizens generally.” [My underlining.]

Lincoln did so, in his message to Congress of July 1861. Part of the relevant paragraph of that long message is excerpted below:

Soon after the first call for militia it was considered a duty to authorize the Commanding General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain without resort to the ordinary processes and forms of law such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to "take care that the laws be faithfully executed" should not himself violate them. Of course some consideration was given to the questions of power and propriety before this matter was acted upon.

The Federalist Papers and history demand that Pence explain his actions to the public. I, and I think most reasonable people, would agree that he did the right thing. I want to hear that explanation.

[MajGenl.Meade]

Of course some consideration was given to the questions of power and propriety before this matter was acted upon.

Oh, well that's all right then. Not at all like Trump explaining that he'd "declassified" all the documents so he could take ''em home and then "reclassified" the ones he DID send back earlier.

But it's a false analogy anyway. What Pence did was allowed by the Constitution subject to explanation. The point of requests for "public justification" is the forlorn hope that Pence is going to say, "Oh well, the VP had to do something because POTUS is a traitor who wanted it all to continue".

What Lincoln did was to violate the Constitution, plain and simple. The President has no Constitutional power to suspend habeas corpus - that's the job of Congress (yes, that's a dispute that continues; no need to tell me, but Lincoln thought he'd violated the Constitution and sought absolution).

Initially, he did it to allow the army to arrest whoever in Baltimore they deemed needed arresting. Genl Butler arrested Merryman (justifiably) on May 25, 1861, then the Marshal of police, then the entire Board of Police Commissioners. Despite Tawney's 100% correct argument and decision for the writ of habeas corpus, Butler and then Lincoln refused to hand over Merryman for due process. The Federal courts were open and Merryman could be properly tried. Lincoln blithely argued that it was perhaps necessary to break the law in order to prevent all the other laws from being broken and the Federal government from being destroyed.

Congress declined to pass a bill presented at Lincoln's behest on July 25 1861 to authorize the suspension of habeas corpus. His "explanation" was not accepted. They did pass a bit of chatter that the president had the full authority to do what was necessary to run the army.

So Lincoln carried on, suppressing newspapers throughout the loyal states and etc. In August 1863, Congress finally gave Lincoln his ex post facto exoneration.

So, the analogy is not apt. Lincoln got away with breaking the Constitution for 2 years. And his reasoning for it was specious and self-serving. Just like Trump.

[Big RR]

I would think the explanation would be that he acted due to the danger to one branch of the US government; while we can disagree on the magnitude of the danger, if the chief executive fails to act to quell an attack on the capitol when most members of the legislative branch are present and in danger, he is clearly in dereliction of his duties, which prompted the VP, as president of the Senate and the most senior person in the Capitol, to act to preserve the government. I also think that BSG makes a good point; if Trump was actually dodging calls (and not ordered to stand down by the president) as BB states, it would make sense in the chain of command to go to his second in command, especially as the commander was unavailable and Pence was on the scene and in a much better position to perceive the danger (at least theoretically).

Should Biden have justified his actions to the public as Jefferson suggested? Perhaps, but then I do not think either Trump of the Congress has demanded any such explanation--quite different from Lincoln and his (apparently successful, even if Congress didn't agree) attempts to expand the power of the executive. So maybe it is not necessary as the peoples' representatives (and even the president) tacitly approved.

Face it, we live in a very different time that the 18th century, and we now have the president able to commit troops to fight "wars" for years (even more than a decade) without Congress formerly declaring war (something that would be unthinkable in the 18th and 19th centuries). Calling out the militia to quell a threat to a branch of the government (importantly, the branch that most closely reflects the views of the people), would be something I would think most of the founding fathers (well maybe not Hamilton, but then he really wanted a strong executive and didn't want to be "bothered" with the Congress or the concerns of the people) would have certainly endorsed; I'm not so sure an explanation is necessary (although it would be welcome).

[BoSoxGal]

Pence has indicated a willingness to cooperate with the January 6 committee and public hearings recommence next month. Let’s hope we get the chance to hear from our former VP in person.

[MajGenl.Meade]

Pence, Big RR. Pence.

Though Biden might have a lot of explaining to do in future!!

[Big RR]

I've clearly tried to forget about the Trump presidency and thought Biden was still vice president at that time.

[MajGenl.Meade]

I've clearly tried to forget about the Trump presidency and thought Biden was still vice president at that time.