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House Oversight Hearing on Response to January 6 Insurrection; Former Acting Attorney General Testifies on Insurrection Response; D.C. Police Chief Testifies on January 6 Insurrection Response. Aired 10:30-11a ET

Aired May 12, 2021 - 10:30   ET



CHRISTOPHER MILLER, FORMER ACTING DEFENSE SECRETARY: As to the events leading up to January 6, on December 31st, 2020, Washington, D.C. Mayor Muriel Bowser sent a written request to Major General William J. Walker, Commanding General of the District of Columbia National Guard seeking unarmed National Guard support to the District of Columbia Metropolitan Police Department for planned demonstrations scheduled for 5 and 6, January. I formally approved the request on January 4th, 2021. We received no further request for different or additional support until the Capitol was breached.

I want to highlight. You said in my opening statement -- I want to clarify, between 1:00 and 1:30, I noticed that the outer perimeter had been breached, not the Capitol itself. I know that it's sometimes difficult to understand, but that's one of the purposes of this hearing today is to make sure we get our lexicon straight.

I want to remind you and the American public that during that time, there was irresponsible commentary by the media about a possible military coup, that advisers to the president were advocating the declaration of martial law. I was also very cognizant of the fears and concerns about the prior use of the military in June 2020 response to the protests near the White House.

And just before the Electoral College certification, ten former secretaries of defense signed an op-ed published in The Washington Post warning of the dangers of politicizing and inappropriately using the military.

No such thing was going to occur in my watch, but these concerns and hysteria about them, nonetheless, factored into my decisions regarding the appropriate and limited use of our armed forces to support civilian law enforcement during the Electoral College certification. My obligation to the nation was to prevent a constitutional crisis.

Historically, military responses to domestic protests have resulted in violations of Americans' civil rights and even in the case the state protests of the Vietnam War tragic deaths. In short, I fervently believe the military should not be utilized in such scenarios other than as a last resort and only when all other assets had been expended. On January 6, 2021, 8,000 local and federal law enforcement officers were on duty in the District of Columbia. I was told during planning sessions that such a force routinely manages demonstrations well north of 100,000 demonstrators. That is what they are trained, equipped, chartered and expected to do.

Many commentators mischaracterized my instructions and Army Secretary Ryan McCarthy's accompanying guidance is somehow contributing to the inability of the guard to respond or even worse, that those instructions somehow enabled the mob to enjoy an easy path to the Capitol. That is completely false. We did not disarm the National Guard. The request from the mayor was for unarmed support of local law enforcement and we authorized the support she and General Walker requested.

At about 2:30, it became clear to me that local and federal law enforcement personnel were insufficient to address the situation and the Department of Defense would be required to play a much larger role in reestablishing security in Washington, D.C. At 3:00, I approved the authorization and mobilization of the full District of Columbia National Guard to assist Capitol Police and the Metropolitan Police Department.

At 5:20 P.M., National Guard personnel arrived at the Capitol and began operations and support of domestic law enforcement entities there. Order was restored by 8:00 P.M. that evening and the Electoral College results were certified.

Those of you with military experience or who understand the nature of military deployments will recognize how rapid our response was. Criticism of the military response is unfounded and reflects inexperience with or lack of understanding of the nature of military operations for worst is simply the result of politics. I suspect the combination of both these factors.

There are complexities to redeploying forces in an urban environment. And, again, the critics disregard the subordinate role the military must play in the rare instances it is necessary to use such force to support domestic law enforcement agency. This isn't a video game where you can move forces with the flick of a thumb or movie that glosses over the logistical challenges in the time required to coordinate and synchronize with the multitude of other entities involved or complying with the important legal requirements involved in the use of such forces.

I have been in more crisis situations than I can meaningfully recall. I have personally been in riots, fist fights and brawls, gunfights, aircraft mishaps, mortar, rocketed, attacked with improvised explosive devices. And as a leader, I've commanded forces engaged in the most complex and hazardous military activities and operations known to human kind.


Good leaders slow things down to plan and then greet their soldiers, ultimately saving time and lives, assembling soldiers, equipping them correctly, conducting an abbreviated planning session and briefing all those involved with their task, mission, purpose, limits and rules of engagement, coordinate and synchronizing police and other domestic agencies on the ground to guarantee the National Guard's movement supported their efforts, moving them from the assembly point to the appropriate location and deputizing that via civilian law enforcement official prior to employing them. This is not a mere symbolic exercise. It all takes time.

I also had responsibility to the members of our armed forces and their families to make sure that when I sent them into difficult situations, I sent them in with a plan to not only succeed but that would spare them unnecessary exposure and spare everyone the consequences of poor planning or execution. Our arrival needed to impress upon the mob, the situation had fundamentally changed with the arrival of disciplined, organized and overwhelming strength so that the balance of power decisively shifted back in favor of the forces of order and it was in their best interest to give up and give up quickly, and I believe it did.

Again, anyone familiar with the culture, nature and practices of the military and the character of military operations in urban environments will understand the enormous accomplishment of the District of Columbia National Guard and army leadership in responding so effectively and quickly that afternoon.

As General Milley correctly assessed, the chairman of the Joint Chiefs of Staff, the military's response that day, Department of Defense responded at, quote, sprint speed, unquote. I stand by every decision I made on January 6th and the following days. I want to emphasize that our nation's armed forces are to be deployed for domestic law enforcement only when all civilian assets are expended and only as the absolute last resort.

To use them for domestic law enforcement in any other manner is contrary to the Constitution and a threat to the republic. I ask you to consider what the response in Congress and the media had been if I had unilaterally deployed thousands of troops into Washington, D.C., that morning against the expressed wishes of the mayor and the Capitol Police who indicated they were prepared.

I know that the brave law enforcement officers serving on the frontlines on January 6, 2021 did their best to protect the Capitol and the individuals, many of whom are on this hearing today, were in harm's way from a lawless and ignorant mob acting contrary to nearly 2.5 centuries of peaceful and respectful transfers of power under a Constitution.

I'm enormously proud of these National Guard soldiers and airmen who selflessly answered the call on January 6th, 2021 and in the subsequent weeks to support domestic law enforcement and our Constitution. Watching them, talking to them, listening to them and trying to support them as best I could remain the high points of my term as the acting secretary of defense. They are America's treasure and are true patriots. We must be worthy of their selfless service and sacrifice. Thank you.

REP. CAROLYN MALONEY (D-NY): Thank you. Mr. Rosen, you are now recognized for your testimony, Mr. Rosen.

JEFFREY ROSEN, FORMER ACTING ATTORNEY GENERAL: Chairwoman Maloney, Ranking Member Comer and members of the committee, good morning. My name is Jeff Rosen. And from December 24, 2020 to January 20 of this year, I have the honor of serving as the acting attorney general of the United States.

I appreciate this opportunity to discuss the actions taken by the Department of Justice on January 6th to help restore order at the Capitol to enable the completion of Congress' certification of the Electoral College vote and to begin the process of bringing to justice those who attacked the Capitol.

The events of January 6th were a nationally travesty and an intolerable attack on our democratic values. To those who risked their safety to protect everyone at the Capitol, I honor your bravery. To the families of the Capitol Police officers or others who were injured that day or died in the wake of the attack, I extend my deepest sympathy. And to all of you and your staff who looked through that day, I share the justified anger at what you endured.

I also take solace in the fact that our republic never faltered. Buildings were breached but the Constitution and our shared values were a bulwark against the violent mob. As set out in my written testimony, the Department of Justice prepared appropriately in the period before January 6th.


And I'm proud of the department's response on January 6th, when we urgently deployed more than 500 agents and officers from the FBI, ATF and U.S. marshals to assist in restoring order at the Capitol. That included the number two officials from both DOJ and FBI personally going to the rotunda while the intrusion was still under way.

All of these outstanding men and women from DOJ moved with urgency to assist the Capitol Police in the midst of an unprecedented security breach, and they helped clear the hollowed epicenter of our representative government.

As to holding the wrongdoers accountable, I'm also extremely proud of the swift action taken their actor by DOJ personnel and the FBI and the and the D.C. U.S. Attorney's Office to investigate and, where appropriate, begin to prosecute those responsible for the disgraceful attack on the Capitol.

I appreciate the importance of today's oversight hearing and I welcome the opportunity to share with you what I know about the January 6th events in light of my prior at the Department of Justice. Justice Department, of course, must always be guided by our Constitution and the rule of law. That is what guided me. The Department of Justice acted with the utmost integrity and urgency to support our institutions of government to the very best of our abilities when the legislative branch came under attack on January 6.

The violence that occurred at the Capitol on the afternoon of January 6th should never be repeated. As a society, we need to restore greater respect for our Constitution, for our representative form of government and for the rule of law.

I look forward to your questions about January 6 but should note as a threshold matter that there are some unavoidable limitations on the testimony I can provide at this time. For one, my access to information is limited because I am no longer with the Department of Justice. Further, while the events of that day will be with me forever, my memory is unlikely to be perfect, as I'm sure for all of us, there are some aspects that are seared in memory and others that have become a blur.

Moreover, I've been authorized by the Department of Justice to testify here today only on certain topics within the scope of today's hearing. As I'm bound as a lawyer and the former -- and as a former cabinet officer of the executive branch, to maintain some kinds of information in confidence and also must avoid making any statements that could interfere with the numerous ongoing investigations and prosecutions of individuals involved in the events of January 6th.

I appreciate your patience understanding as to those as I will otherwise do my best to address the events of January 6th, as I saw them.

With that, thank you for inviting me today and I look forward to your questions.

MALONEY: The gentleman yields back. And our next appointed speaker is Mr. Contee.

CHIEF ROBERT CONTEE III , D.C. METROPOLITAN POLICE: Good morning, Chairwoman Maloney, Ranking Member Comer and members of the committee. I'm Robert J. Contee III, Chief of Police of the Metropolitan Police Department, the primary police force in the District of Columbia. I appreciate this opportunity to brief you on the events of January 6, 2021, a dark day for our country.

It is critically important that we, members of Congress, district leaders and residents and all Americans find answers to questions about the 6th. I'll relate to you the facts as we know them at this time based on the point of view of the Metropolitan Police Department and the government of the District of Columbia.

As with any event with multiple agencies, thousands of people and almost as many cameras as people, there will inevitably be several perspectives and possibly inconsistencies that will need to be aligned as more information is gathered.

I would like to begin by highlighting a few key facts to ensure the committee and audience understand the very different roles of Mayor Muriel Bowser and District of Columbia, including MPD and those of congressional and federal authorities.

First, MPD is prohibited from entering the Capitol or its grounds to patrol, make arrest or serve warrants without the consent or request of the Capitol Police Board. [10:45:00]

Second, unlike any other jurisdiction in the country, the president of the United States, not the mayor of the District of Columbia, controls the D.C. National Guard. Any requests submitted by the mayor to mobilize the D.C. National Guard must be approved by the president and the scope of the request must be limited to supporting the district's local jurisdiction and authority, which excludes federal entities and property. A request for the Guard assistance at the Capitol or its grounds would have to be made by Capitol Police with the consent of the Department of Defense.

Third, since Mayor Bowser declared a public health emergency in March 2020, the District of Columbia has not issued permits for any large gatherings. On the morning of January 6th, MPD was prepared to support our federal partners with a First Amendment assembly that was held primarily on federal land while continuing to patrol and respond to calls for service throughout city neighborhoods.

In preparation for the anticipated demonstrations and the possibility of violence on city streets, the department was fully deployed on 12- hour shifts the week of January 4th with days off and leave canceled. Our federal partners each had their primary areas of responsibility. The Secret Service was focused of the former president and the White House area. Park police was focused on the Ellipse and the National Mall. And Capitol Police have responsibility for the Capitol, including both the building and grounds.

At Mayor Bowser's request and in advance of the scheduled demonstrations, mutual aid was requested from several area police departments to be on standby in the district and more than 300 members of the D.C. National Guard were deployed on district streets providing traffic control and other services to allow MPD to support the First Amendment assembly and continue to provide services to D.C. neighborhoods.

What follows is a brief outline of MPD's role in these events. At about 12:45 P.M., the first of two pipe bombs were found, the first at the Republican National Committee headquarters, the second found about 30 minutes later at the Democratic National Committee headquarters. MPD responded to the scenes for the pipe bombs to assist the Capitol Police.

At 12:58 P.M., Chief Sund asked for MPD's assistance to address the growing violent mob at the Capitol. Officers were immediately authorized to deploy to the west front of the Capitol and arrive within minutes. Our members arrived at a chaotic scene. The violent mob quickly overran protective measures at the Capitol prior to the arrival of the MPD officers at the west front.

MPD platoons immediately began working to achieve our objectives, one, stop rioters from entering the Capitol building and remove those that were already inside. Two, secure a perimeter so the Capitol could be cleared for lawmakers. Three, enable Congress to resume their sessions to demonstrate to our country and the world that our democracy was still intact. And four, lastly, only once the third objective had been accomplished, begin making arrests of anyone violating the law.

At 2:22 P.M., a call was convened with, among others, myself, leadership of the Capitol Police, the D.C. National Guard and the Department of the Army. On this call, the Capitol Police chief made an urgent request for support from the National Guard due to the dire situation we were facing.

In the meantime, by 2:30 P.M., the district had requested additional officers from as far away as New Jersey and issued notice of an emergency citywide curfew beginning at 6:00 P.M. The seven hours between the urgent call for help from the Capitol Police to MPD and the resumption of work at 8:00 P.M. by both Houses of Congress will be forever etched in the memories of every law enforcement officer who was on the scene and it is undoubtedly in the minds of the elected officials, congressional staff and other Capitol employees who were forced to seek safety behind locked doors.

Other harm from this traumatic day will be widely felt but possibly unacknowledged. Law enforcement training neither anticipates nor prepares for hours of hand-to-hand combat. Even brief physical fights are physically and emotionally draining.

In closing, I appreciate the opportunity to highlight the heroism of MPD officers and all of the law enforcement officers who responded to the Capitol and put their lives on the line to protect the Capitol, Congress and our democracy. But to ensure the continued safety of the district and its residence, the federal enclave, MPD officers and others, we must be frank in looking at several critical issues.


The federal police forces in D.C. are reexamining their security protocols given the risk of both foreign and domestic terrorism. As the chief of the district's municipal police force, I must think about our preparations, not only for possible attacks, but the daily impact of the changing operations of our federal partners, as they harden targets in the federal enclave, other buildings in the city under MPD jurisdiction may become more likely targets.

Thank you again for the opportunity to brief you today. I'll be happy to answer questions as we try to come to terms with January the 6th. Thank you.

MALONEY: Thank you. And I now recognize myself for questions.

On January 6, Congress was fulfilling its constitutional duty to certify the results of the presidential election when Vice President Pence, Speaker Pelosi and other members of congress had to be quickly evacuated because a violent mob had breached the Capitol.

Mr. Miller, you were the acting secretary of defense of January 6th. Did President Trump, as the commander-in-chief of the U.S. Armed Forces, call you during the January 6th attack to ensure the Capitol was being secured? Mr. Miller?

MILLER: No. I had all the authority I needed from the president to fulfill my constitutional duties.

MALONEY: Did you speak with President Trump at all as the attack was unfolding?

MILLER: On January 6th?


MILLER: No, I did not. I didn't need to. I had all the authority I needed and I knew what had to happen.

MALONEY: Did you speak with Vice President Pence during the attack? Yes or no?


MALONEY: According to a Defense Department timeline, it was Vice President Pence and not President Trump who called during the siege to say the Capitol was not secure and to give you the direction to, quote, clear the Capitol. What specifically did Vice President Pence say to you that day?

MILLER: The vice president is not in the chain of command. He did not direct me to clear the Capitol. I discussed very briefly with him the situation. He provided insights based on his presence there. And I notified him or I informed him that, by that point, the District of Columbia National Guard was being fully mobilized and was in coordination with local and federal law enforcement to assist in clearing the Capitol.

MALONEY: According to the DOD timeline, the vice president's call to you occurred at 4:08 P.M., more than two hours after the Capitol had been breached. Yet, according to this timeline, it was not until after your call with the vice president at 4:32 P.M. that you authorized D.C. National Guard troops to deploy to the Capitol. Did you issue your order in response to the vice president's call?

MILLER: No. I issued the order to mobilize the District of Columbia National Guard and provide all necessary support, civilian and local and federal law enforcement at -- I gave approval at 3:00 P.M. and the order was issued at 3:04 P.M.

MALONEY: But, Mr. Miller, you order to deploy came only 24 minutes after the vice president called you, and your testimony is that they are unrelated. Do I have that right?

MILLER: I'm sorry, you're going to have to say that again.

MALONEY: That's hard for me to believe but I'm going to move on.

MILLER: What's the question?

MALONEY: Excuse me. Mr. Rosen, let me now turn to you. You are the acting attorney general on January 6th and you reported directly to the president. Did you speak to President Trump at all on January 6?

ROSEN: I did not. I did not require any authorities that the department didn't already have.

MALONEY: Well, I think that the lack of direct communication from President Trump speaks volumes.

President Trump swore an oath to protect the Constitution and to faithfully execute his duties as commander-in-chief. But when his supporters attacked our nation's Capitol, the president was nowhere to be found, leaving it to others to scramble to respond.

I'd like to close with a few simple questions. Mr. Rosen, you were the head of the Justice Department on January 6th. Do you believe the 2020 presidential election was stolen from President Trump?

ROSEN: Chairwoman Maloney, I addressed that issue in my written statement. I don't really have anything beyond that other than to say that there was no evidence presented of widespread fraud of a sufficient scale to overturn the election.


MALONEY: And, Mr. Miller, based on his actions leading up to January 6th and on the day of the attack, do you believe President Trump fulfilled his oath to faithfully execute his duties as president and to preserve, protect and defend the Constitution?


MALONEY: Well, I think the evidence is clear. The president refused to lift a finger to send aid after he incited a violent rebellion against our republic. The president, therefore, betrayed his oath of office and betrayed his constitutional duty.

My time has expired, and I now recognize the gentleman from Arizona, Mr. Gosar.

REP. PAUL GOSAR (R-AZ): Thank you, Madam Chairwoman.

(INAUDIBLE) propaganda and lies are being used to unleash the national security state against law abiding U.S. citizens, especially Trump voters. The FBI is fishing through homes of veterans and citizens with no criminal records and restricting the liberties of individuals that had been never accused of a crime.

Mr. Biden calls January 6th the worst attack since the civil war. A president was impeached for his alleged role in that riot. It was reported early, totally unconfirmed that an armed insurrection, quote, beat a police officer to death with a fire extinguisher. The government has even enlisted Americans to turn in their own neighbors.

Federal Prosecutor Michael Sherwin on CBS News 60 Minutes continued the, quote, shock and awe, end of quote, strategy. Many of my Democratic colleagues opposed the quote, shock and awe, end of quote, strategy in Iraq. We should similarly oppose its application against American citizens.

Mr. Rosen, you claim that the DOJ would, quote, spare no resources, end of quote. Mr. Rosen, did the DOJ confiscate any firearms from suspects charged with breaching the Capitol on January 6th?

ROSEN: Congressman, as I alluded to in my opening remarks, there are certain limitations about pending investigations and prosecutions.

GOSAR: Mr. Rosen, I'll be looking forward to asking that question to people that can answer it from the Capitol Police and the FBI, but the answer is no, zero firearms from suspects charged with breaching the Capitol.

Mr. Rosen, was Officer Sicknick killed by rioters with a fire extinguisher?

ROSEN: Congressman, Officer Sicknick was there acting in the line of duty and went into harm's way. And I think, as others have said, he acted as one of many heroes on that day. So --

GOSAR: Mr. Rosen, I -- (INAUDIBLE) lightly. He did heroically, but he died of natural causes.

Mr. Rosen, was a single individual at or outside the Capitol on January 6th, have they been charged with the crime of insurrection?

ROSEN: Again, if you're asking me about charges that were either made, pending or being investigated, I'm sorry, I'm just not in position to address those.

GOSAR: Mr. Rosen, thank you. Once again, Mr. Rosen, to my knowledge, not a single person has been charged with a crime of insurrection.

Mr. Rosen, do you recall the name of a young lady, a veteran wrapped in in American flag that was killed in the U.S. Capitol?

ROSEN: I do. Her name was Ashli Babbitt.

GOSAR: Yes, Ashli Babbitt. Was Ashli Babbitt armed?

ROSEN: Again, Congressman, I mean to be respectful of your observations but I just don't want to talk about individual situations or --

GOSAR: Reclaiming my time. Mr. Rosen, no, she wasn't. She was wrapped in a U.S. flag.

Was the death of Ashli Babbitt a homicide?

ROSEN: Congressman, I'm not trying to be unhelpful here.

GOSAR: I understand.

ROSEN: But I just cannot comment.

GOSAR: I understand. But, I mean -- reclaiming my time. As the death certificate says, it was a homicide.

Who executed Ashli Babbitt? ROSEN: Congressman, I'm just going to have to say the same thing here that I don't want to get into the specific facts of the investigations.

GOSAR: Thank you very much. I appreciate it.

Now, Chief Contee, what are the rules of engagement at the D.C. protest?

CONTEE: At D.C. protest, sir?


CONTEE: Yes. The only time that we engage with riot gear, that kind of thing, is in situations where there's an actual attack that's going on, sir. I'm not sure --

GOSAR: I appreciate it you, and thank you for your service.

Madam Chairwoman, my constituents demand answers but the truth is being censored and covered up.


As a result, the DOJ is harassing peaceful patriots across the country.