Presidential protection or abduction? Secret Service wrong for all the right reasons on Jan. 6
By: Jonathan Turley (The Hill)
S E E D E D C O N T E N T
The sixth hearing of the House Select Committee on the Jan. 6 riot finally fulfilled the media's billing as "must-see TV." Indeed, at points, the testimony of Cassidy Hutchinson, a former top aide to then-White House chief of staff Mark Meadows, sounded like a cable-series episode of "When Presidents Attack." She alleged that an enraged Donald Trump threw his lunch against a White House wall, an allegation Trump denies.
But the hearing's grabber came when Hutchinson testified that she was told that Trump became physical with his Secret Service security team, trying to force them to drive him to Capitol Hill as the riot unfolded.
Hutchinson's testimony offers an explanation for a long-standing mystery: Why did Trump repeatedly say he would go to Capitol Hill with his supporters but then decided to return to the White House? Hutchinson's surprising answer: He didn't decide.
According to her second-hand account from people in the presidential limo, known as "The Beast," Trump intended to do exactly what he promised and ordered the Secret Service to take him to the Capitol. But Tony Ornato, White House deputy chief of staff for operations, and Bobby Engel, who headed Trump's security detail, reportedly refused.
Hutchinson said Ornato asked her, "Did you f-ing hear what happened in The Beast?'" She then repeated Ornato's account:
"So once the president had gotten into the vehicle with Bobby, he thought that they were going up to the Capitol, and when Bobby had relayed to him, 'We're not, you don't have the assets to do it, it's not secure, we're going back to the West Wing,' the president had a very strong, very angry response to that … [Trump] said something to the effect of, 'I'm the f-ing president, take me up to the Capitol now.' To which Bobby responded, 'Sir, we have to go back to the West Wing.' The president reached up towards the front of the vehicle to grab at the steering wheel. Mr. Engel grabbed his arm and said 'Sir, you need to take your hand off the steering wheel, we're going back to the West Wing. We're not going to the Capitol.' … [Trump] then used his free hand to lunge towards Bobby Engel, and when Mr. Ornato had recounted this story to me, he had motioned toward his clavicles."
Stunning though the allegation was, several media reports cite "a source close to the Secret Service" as denying the claim of a physical altercation and offering to have Engel or another official testify to that under oath.
Even if true, that still leaves the main allegation — that the Secret Service effectively made the President of the United States a captive and refused his repeated, direct orders on where to take him.
If true, the security team's motivation certainly was commendable. It probably prevented Jan. 6 from getting much, much worse. Though the riot had not yet started when Trump allegedly issued his demand, both he and Vice President Mike Pence could have been in the midst of the uncontrolled violence, with uncertain communications and security.
The episode is likely to bedevil scholars for years, like much else in Trump's presidency. For starters, what was the authority of the security team to refuse a direct order from a sitting president to go to Congress?
The Secret Service has always been a unique organization, but it remains, first and foremost, a law enforcement agency. During the Clinton impeachment, I represented former attorneys general in opposing a "Secret Service privilege" that would have recognized enhanced powers and privilege for agents.
The Secret Service has always assumed discretion in seizing a president to protect him from immediate harm. Its agents are trained to take control of a president or other protected persons in a moment of peril. They do not ask permission; they grab a president and, if necessary, carry him to safety.
This was not a case of an imminent threat, however. It was based, presumably, on a decision that the Capitol was not adequately secured. It was not unlike a president demanding to get out of The Beast to work a rope line or to make an unscheduled stop at a building. Theoretically, he has the authority to do that, not only as the head of the Executive Branch but as a citizen.
After 9/11, then-Vice President Dick Cheney recounted how involuntary these moments can become: "My agent all of a sudden materialized right beside me and said, 'Sir, we have to leave now.' He grabbed me and propelled me out of my office, down the hall, and into the underground shelter in the White House." That was in the midst of a terrorist attack, of course, and Cheney perhaps could have countermanded the order.
Presidents are known to drive agents crazy with impromptu stops to shake hands with onlookers. Then-Soviet President Mikhail Gorbachev sent Russian and American security scrambling with a sudden stop to greet citizens in the middle of Connecticut Avenue and L Street NW during a 1987 state visit.
So Trump reportedly decided he wanted to lead the protests to the Capitol and didn't care about the security uncertainties — and he actually had a right to do so. Presidents can elect to put themselves in harm's way. For example, Jimmy Carter pledged to stay at his desk to be incinerated in any nuclear war.
What if Trump got out and called a taxi or, even worse, a police officer? The Secret Service has no authority to put a president into effective custody against his will. In criminal procedure, a person is in custody when a reasonable person would have concluded that they are not free to go. In Trump's case, he reportedly said he did not want to go back to the White House but was taken there anyway.
Was Trump effectively under arrest or in a custodial hold? Probably not, but it certainly is intriguing. The president could have gotten out of the limo; there is no report that Ornato locked the doors or turned a presidential protective mission into a presidential kidnapping.
It is unclear, though, what the Secret Service would have done if the president got out and tried to join his supporters in marching to the Capitol. The agents absolutely were correct that by doing so he would have put himself in danger — but the Secret Service cannot control the presidency by limiting the movement of a president. Otherwise, it can look like a modern Roman Praetorian Guard accused of dictating outcomes or events.
This act of disobedience may have saved the country from an even greater crisis, one in which the president and vice president stood on opposing sides of a protest line or, worse yet, in the middle of a full-fledged riot. The fact that Trump knew some of his followers were armed, according to Hutchinson's testimony, only makes that prospect more nightmarish.
As usual, the Secret Service did not ask permission (as opposed to later forgiveness) in taking action in a president's best interests. As a result, we did have a type of captive president, if only briefly. And it is worth contemplating the implications of that. After all, Trump was correct, if crude: He was "the f-ing president."
In the end, the security team was correct on the merits but probably wrong on the law. This was not an unlawful order, and a president must be able to control his own travel. In other words, the agents were wrong for all the right reasons.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.
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If it was all true? Would it have been insubordination?
Both questions need answers
It's an interesting question. If Trump going to the Capital would have potentially put him in danger, could not the act of Secret Service refusing to take him there be looked at in the same light as a Secret Service agent taking a bullet for the President?
A very good question.
Would any of the secret service told JFK that he couldn't ride around in an open top car?
As I remember history, they did object to the open-air car being used but JFK refused to listen and the Secret Service did not over-ride them. The limo also had running boards on the rear bumper so that SS agents could be riding on the car but JFK also demanded they drop back and tail him in a following car.
His rational was that they were close to an election and he needed to project to the people that he was accessible. That was also the last time in history that a president rode in an open top car.
Very good.
Do you think the secret service should have asked JFK for the right to make all decisions on his security?
In actuality no. The Secret Service is part of Homeland Security and is in the Executive Branch of the federal government. As the President is the top dog in the Executive Branch, the President is actually their boss. There is always friction between the President and politics vs the Secret Service and there always will be. The President needs to be able to get out and "press flesh" if they want to remain in office or get their policies looked at favorably.
With that said however, I don't see Secret Service agents getting in real trouble for refusing an order that would put the President in harms way in such an obvious way. The riot at the Capital was out of the control of the handful of Secret Service agents in the motorcade could have managed. At worst I believe in a situation like that, the President after the action could have demanded they be removed from his immediate detail but that would have been about it.
Very well said.
With that said however, I don't see Secret Service agents getting in real trouble for refusing an order that would put the President in harms way in such an obvious way. The riot at the Capital was out of the control of the handful of Secret Service agents in the motorcade could have managed.
So we've been told
At worst I believe in a situation like that, the President after the action could have demanded they be removed from his immediate detail but that would have been about it.
Which leaves the story we heard yesterday in doubt.
Agreed. That story has it's own built-in wriggle room so it's doubtful there would be any repercussions from it. It would have been better if they had also brought in someone who was actually in the beast when this all happened. But they didn't so this now tends to smell like the after effects of the Kavanaugh hearings.
Somebody on this site asked me "how do you know that the committee didn't talk to the agents?
Think about that for a minute. Now the agents want to testify under oath that it never happened.
I think we should look at this committee more like a prosecutor presenting a case to a grand jury, the grand jury in this case being the voting public, and as such to insure that the testimony is as damning as possible against the target. The purpose of the committee is more to poison the name of Trump and get the voting public to never vote him into office again. Of course it would be an added bonus to them if the DOJ were to formally charge Trump but I don't believe even they think that's likely.
Now lets be honest for a second, this batch of Democrats have not been known for being the best at planning / executing something like this. Just look at the two impeachments they ran. Both were shoddy with poor leadership and little management over evidence but more in the "hope and dreams" category. That the two agents in the car came out and want to testify that it never happened just goes to further prove that there is little leadership and planning in this committee other than the driving force to create that made-for-TV moment to cement in the voting public's mind their version. And vetting yesterday's testimony against the agents in the car could have removed the vivid picture of an out of control Trump attempting to physically overpower two Secret Service agents and drive the car where he wanted to go. (The funny picture in that is for years the left has painted Trump as a fat POS so it's kind of hard to believe that the old fat orange man could have physically overpowered two agents, but then again partisanship is stronger than logic).
And the unspoken part of that is they want him to run again. Thus no indictment from any direction.
Now lets be honest for a second, this batch of Democrats have not been known for being the best at planning / executing something like this. Just look at the two impeachments they ran. Both were shoddy with poor leadership and little management over evidence but more in the "hope and dreams" category. That the two agents in the car came out and want to testify that it never happened just goes to further prove that there is little leadership and planning in this committee other than the driving force to create that made-for-TV moment to cement in the voting public's mind their version. And vetting yesterday's testimony against the agents in the car could have removed the vivid picture of an out of control Trump attempting to physically overpower two Secret Service agents and drive the car where he wanted to go.
A monstrous abuse of power.
(The funny picture in that is for years the left has painted Trump as a fat POS so it's kind of hard to believe that the old fat orange man could have physically overpowered two agents, but then again partisanship is stronger than logic).
It's the picture they've had in their hearts & minds, thus it must be true!
Good comment.
It's hard to believe that that "old fat orange man" could have done what Hutchinson claimed he did, since the president always sits in the back seat of "The Beast".
Actually, they didn't use the beast that day. Trump was taken to and away from the rally in a Secret Service SUV. There's video of the event where he's leaving and it's definitely an SUV. Any way you look at it, it's still a funny picture after years of the left telling us how old & fat Trump was to think he might go after two younger and in much better shape agents.
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Except people in the crowd didn't have guns.
At least get your damn meme right!
I thought there was evidence that people who did not enter the Ellipse were armed. And there were a handful of protestors at the Capital who are facing gun charges even though they were not part of the group that entered the Capital on the 6th.
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You best hide behind your NY buddy.
Still waiting. When are Democrats going to indict Trump? Democrats can't hide behind Liz Cheney forever.
Will a steaming pile of hearsay testimony finally force Democrats to grow a backbone? Democrats have made the case. Now do something - or - shut up and go away.
When will the January 6 kangaroo court committee orchestrated by Pelosi, Schiff, Thompson, Cheney, Kinsinger, et al begin to allow due process that is enumerated in Amendments 5 and 14 of the US Constitution?
Don't believe they have to as this is not a trial. Think of this more like a prosecutor presenting to a Grand Jury where the committee is the prosecutor and the voting public is the Grand Jury.
Which is also part of why I don't believe Trump will ever be charged for this. If the DOJ were to charge him, then all those due process rights come into play and his team does get to cross examine all evidence and witnesses. To convict would, I believe, require that the DOJ prove intent and that's a very hard thing to prove. And a failure to convict after charges are made would be at a minimum a death sentence to the careers of any and all involved in the prosecution, and potentially a bunch of Democrat politicians as well.