750
APPENDIX 2
- Force as a posse comitatus or otherwise to execute the laws shall be fined . . . or imprisoned . . . .")). See Memorandum Opinion, "Use of the National Guard to Support Drug Interdiction Efforts in the District of Columbia," 13 Op. O.L.C. 91, 92, 93, 97 (Apr. 4, 1989), available at https://www.justice.gov/olc/opinions-volume (Posse Comitatus Act, 18 U.S.C. § 1385, does not prohibit use of DC National Guard as a militia in support of DC Metropolitan Police Department). The President also has authority to mobilize the National Guard, which is a reserve component of the U.S. armed forces, to active duty (10 U.S.C. §12301 et seq.), and may "federalize" any National Guard unit to assist in addressing insurrection (10 U.S.C. §§251-253), invasion, or rebellion and to give effect to Federal law (10 U.S.C. §12406). The President did not exercise those authorities on January 6, 2021. The DC National Guard operated that day as the DC militia, in its civil support and law enforcement assistance capacity under the separate authorities noted above. See also, Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of General James Charles McConville, (Nov. 4, 2021), p. 8.
- Executive Order 11485, 34 F.R. 15411, § 1, (Oct. 1, 1969), available at https://www.federalregister.gov/documents/search?conditions%5Bterm%5D=34+f.r.15411# ("The Commanding General of the [DC] National Guard shall report to the Secretary of Defense or to an official of the Department of Defense designated by the Secretary . . ."). The Secretary of Defense exercises command authority over the "military operations, including training, parades and other duty" of the DC National Guard while in its non-federalized militia status, through the Commanding General of the DC National Guard. Id. Executive Order 11485 reserves appointment of the Commanding General of the DC National Guard to the President (i.e., does not delegate that authority to the Secretary of Defense or the Secretary's designee). Id., at §§ 1, 3. That Executive Order also specifies that, "[s]ubject to the direction of the President as Commander-in-Chief, the Secretary [of Defense] may order out the [DC] National Guard . . . to aid the civil authorities . . . of the District of Columbia." Id., at § 1. Under a longstanding Congressional authorization, the Mayor of the District of Columbia may request that the Commander-in-Chief (now, by the President's delegation, the Secretary of Defense), direct the National Guard to assist in suppressing "violence to persons or property" or "force or violence to break and resist the laws," including when "tumult, riot or mob is threatened." DC Code §49-103 ("Suppression of riots"), available at https://code.dccouncil.gov/us/dc/council/code/sections/49-103. See also, Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of William Walker, (Dec. 13, 2021), p. 104.
- Memorandum, Secretary of Defense to Secretary of the Army and Secretary of the Air Force, "Supervision and Control of the National Guard of the District of Columbia," (Oct. 10, 1969), ¶ 3. That memorandum is available as an attachment to the Secretary of Defense Lloyd Austin's December 30, 2021 memorandum modifying that 1969 delegation: "Effective immediately, the Secretary of Defense is the approval authority for DC Government requests for the DCNG to provide law enforcement support" to the District of Columbia if the support is to be provided within 48 hours of the request or if acceding to the request would require the DC National Guard to engage directly in civilian law enforcement activities, including "crowd control, traffic control, search, seizure, arrest, or temporary detention." Memorandum, Secretary of Defense for Secretary of the Army, "Authority to Approve District of Columbia Government Requests for District of Columbia National Guard Support Assistance," (Dec. 30, 2021), available at https://www.airandspaceforces.com/austinstreamlines-authority-to-deploy-dc-national-guard. See also, Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of William Walker, (Dec. 13, 2021), p. 104.
- Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Ryan McCarthy, (Feb. 4, 2022), p. 10.
- George Floyd was murdered on Monday, May 25, 2020. See Catherine Thorbecke, "Derek Chauvin Had His Knee on George Floyd's Neck for Nearly 9 Minutes, Complaint Says," ABC News, (May 29, 2020)), available at https://abcnews.go.com/US/derek-chauvin-kneegeorge-floyds-neck-minutes-complaint/story?id=70961042. Over the ensuing days, weeks, and months, Americans demonstrated in cities across the country. See Major Cities Chiefs
