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.
In ordinary circumstances, Pence’s actions would be unconstitutional. Indeed, a vice president who usurped the president’s constitutional authority, and the Cabinet and military officers who followed his orders, could be committing an impeachable offense. But these were no ordinary circumstances: With Pence huddled in a secure location protected by his security detail, his actions were almost certainly justified.
Constitutional government depends on following the law, but emergency circumstances may provide for what the 17th-century political philosopher John Locke called prerogative power: power that in ordinary circumstances is unlawful, but that in extraordinary circumstances is warranted. There is a long-standing debate about whether the public should view such power as constitutional because necessary or as extra-constitutional but justified. In “Federalist No. 23,” Alexander Hamilton argued that people should see emergency power as constitutional because “the circumstances that endanger the safety of nations are infinite.” The Constitution, Hamilton insisted, must provide the lawful power for its preservation.
In contrast, Thomas Jefferson argued that people ought to recognize that emergency power is extra-constitutional but justified. As Jefferson famously wrote in a letter to John B. Colvin—the author of the early-19th-century book The Magistrate’s Guide, and Citizen’s Counsellor, who was then writing about Aaron Burr’s treason—“A strict observance of the written laws is doubtless one of the highest duties of a good citizen: but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.” For Jefferson, preserving the nation was more important than “a scrupulous adherence to written law.”
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.” Whether one sees emergency power from the perspective of Hamilton (constitutional because necessary) or Jefferson (extra-constitutional but justified), it is crucial that the officer who exercises emergency power justify himself to the public. The public must know what constitutional ends the officer thought he was serving and why the circumstances commanded extraordinary action. But Pence has retreated to silence, allowing some proxies to speak for him while ducking the crucial constitutional questions that surround his actions on January 6.
Did Pence think he was acting to preserve the constitutional transfer of power and save the country when it was in danger? Did Pence think that President Donald Trump was threatening the peaceful transfer of power? General Milley and those who followed Pence’s commands seem to think this. But the public should not have to guess at Pence’s motives—he has a constitutional obligation to explain why he thought the nation was in peril and how he acted to obviate that peril.
American history is replete with claims to emergency power. Whether people think they are justified depends on the circumstances and how they are attached to larger constitutional ends.
In the opening months of the Civil War, President Abraham Lincoln suspended the writ of habeas corpus, called up state militias, and blocked southern ports and harbors. Critics thought many of these actions unconstitutional and unjustified. Lincoln insisted that they were necessary to preserve constitutional ends and therefore justified. In a special message to Congress on July 4, 1861, Lincoln explained his actions to the people and Congress, while also asking for congressional approval. Squarely taking up the question of extra-constitutional action, Lincoln asked with a rhetorical flourish, “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”
Similarly, on 9/11, just after two hijacked civilian planes were flown into the World Trade Center, Vice President Dick Cheney, from a secure location in Washington, D.C., acted to prevent further attacks on the United States and keep the government operational under emergency conditions while President George W. Bush was on Air Force One. (With so many unknowns, the Secret Service thought Bush was safest aboard Air Force One rather than in D.C.) While there is dispute over whether Cheney issued the order before or after authorization from Bush, Cheney did ask Bush to authorize him to order the military targeting of civilian planes if necessary, as communications aboard Air Force One were spotty. Bush gave the authorization, which happily did not need to be carried out.
Americans can understand why Cheney exercised such power. They can understand why it was justified. Cheney was not grabbing power for himself, but issuing a truly awful order that was seen as necessary to prevent further casualties and, especially, an attack on the White House and Congress. People also understand that Cheney asked the president for authorization because Bush was unable to discharge his duties.
In contrast, Pence has given us no justification for or explanation of why he seized constitutional authority that was not lawfully his. Article II of the Constitution provides that in the event of the president’s removal, resignation, death, or “inability to discharge the powers and duties” of the office, those powers devolve on the vice president. If Pence thought Trump was unable or unwilling to discharge the constitutional powers and duties of his office, that informs the constitutional analysis of his decision. The formal constitutional mechanism for suspending such a president is by way of the Twenty-Fifth Amendment. It provides that the vice president and a majority of the Cabinet may convey to Congress a written declaration of the president’s inability, allowing the vice president to assume those powers as acting president.
Given the circumstances, following the formal terms of the Twenty-Fifth Amendment was nearly impossible. With the Capitol under siege, Pence’s actions were probably justified. We can surmise that he sought to protect the lives of the people in Congress and to ensure that he remained at the Capitol to officially preside over the counting of electoral votes. But Pence himself should explain to America why he feared for those in Congress, why he would not leave with the Secret Service, and why the sitting president was unable to carry out his duties. The president, after all, was not incapacitated as far as we know.
Justifying Pence’s actions turns almost entirely on Trump’s state of mind both before and on January 6—something Pence is uniquely situated to speak to. We can guess much of what Pence would say. Still, his explanation will help us better understand the events that led to that day. And it will very likely require him to explain that he acted to thwart a sitting president’s unlawful attempt to stay in power.
In retreating to silence, Pence is acting to preserve his own interests, not the country’s. One assumes that he does not want to explain why he used emergency power because it will implicate Trump—and doing so will make Pence unpopular with Republicans. This is the sort of self-serving use of authority that makes emergency power so dangerous.
To put it plainly: Pence either acted extra-constitutionally to preserve the constitutional transfer of power or unlawfully seized power from a sitting president who was acting in accord with his constitutional responsibilities. Pence is trying to have the best of both options, but those two components don’t square. The January 6 committee should force his hand.