Esper under fire after breaking with Trump on Insurrection Act

Fissures emerge in GOP on the issue of deploying troops to quell protesters

Defense Secretary Mark Esper testifies before the Senate Armed Services Committee on March 4. (Caroline Brehman/CQ Roll Call file photo)
Defense Secretary Mark Esper testifies before the Senate Armed Services Committee on March 4. (Caroline Brehman/CQ Roll Call file photo)
Posted June 3, 2020 at 11:24am, Updated at 4:46pm

Defense Secretary Mark T. Esper’s implicit rebuke of President Donald Trump over using active-duty troops to quell domestic unrest may have landed Esper in hot water and is revealing splits within GOP ranks on the question.

Even as upheaval in U.S. cities has started to wane, the political fallout may still spread.

Two days after Trump said he might need to send active-duty troops to help police combat lawlessness in major cities — even if governors did not want the troops — Esper told reporters Wednesday he did not see the urgency in adding regular troops to the thousands of National Guard forces now backing up American police.

"The option to use active-duty forces in a law enforcement role should only be used as a matter of last resort and only in the most urgent and dire situations," Esper said. "We are not in one of those situations now. I do not support invoking the Insurrection Act,” he added, a reference to the 1807 law that Trump would have to invoke to deploy active-duty troops for law enforcement.

A handful of Republicans have come out in support of Esper’s position and in opposition to Trump’s, while many have remained silent on the thorny question. Esper’s division with the commander in chief on the issue has fueled speculation — and numerous media reports — that the secretary may not be long for this administration.

Democrats are rushing to Esper's defense — but doing Esper no favors with Trump in the process.

Some reports indicate Trump may be cooling to the idea of using active troops, if he ever meant it as anything other than a threat meant only to achieve a rhetorical and political effect.

Nonetheless, a rebuttal from one of his Cabinet members does not sit well with Trump.

"As of right now, Secretary Esper is still Secretary Esper, and should the president lose faith, we will all learn about that in the future,” White House Press Secretary Kayleigh McEnany told reporters.

"The president has the sole authority to invoke the Insurrection Act," she added. "It is definitely a tool within his power."

Republican fissures

The prospect of Trump using the Insurrection Act to deploy regular troops as law enforcers has sparked dissent in GOP ranks.

Sen. Tom Cotton, an Arkansas Republican, has been a vocal proponent of using the regular military for law enforcement to address the current situation. The New York Times published a Cotton oped Wednesday titled, “Send in the Troops.” Speculation abounds that Cotton could be considered for the Defense secretary position in a second Trump term.

On the other hand, Alabama Republican Bradley Byrne, a member of the House Armed Services Committee and ordinarily a strong supporter of Trump on national security and border issues, split with the president in a tweet Wednesday.

“I agree with Secretary Esper,” Byrne tweeted. “At this time, there is absolutely no reason to use the Insurrection Act to deploy active-duty U.S. forces. That is a tool that should only be used as an absolute last resort.”

Sen. Mitt Romney, R-Utah, one of Trump’s biggest GOP critics, told reporters Wednesday he hopes Esper keeps his job.

“I think Secretary Esper has the right to express his point of view and the president has his,” Romney said. “I hope the president is willing to listen to the perspective of others and to take that into account as he makes his decision.”

James M. Inhofe, R-Okla., chairman of the Senate Armed Services Committee, said in a floor speech Wednesday that Trump has not yet made a decision yet to invoke the Insurrection Act.

“But if we do,” Inhofe said, “I am confident that this decision will be made with the advice of top civilian and military officials, who were all confirmed with wide bipartisan support.”

Democrats, meanwhile, have defended Esper.

“Using the military to break up these protests would be illegal," Sen. Dianne Feinstein, D-Calif., said in a statement. "Under the Insurrection Act of 1807, troops can only be used against American citizens when unlawful mobs make it impossible to enforce the law or protect peoples’ rights. These protests are clearly not an insurrection."

Some 1,600 active-duty troops had been sent to D.C. to deal with protests. Esper had reportedly been considering starting to send them back to their bases. But, potentially in response to the fallout from Wednesday morning's press conference, Esper changed course and decided to keep the troops in place at least for now, the Associated Press reported Wednesday evening.

The president also commands the D.C. National Guard and their units participated in a violent assault Monday on peaceful protesters near Lafayette Square, a block from the White House.

More than 21,800 National Guard personnel are now deployed in just over half of America's states — more troops than are now in Afghanistan, Iraq and Syria combined. Those troops have been tapped to deal with looting and vandalism and other crimes being committed at the fringes of a largely peaceful protest movement in dozens of U.S. cities.

Esper on Monday assault

Esper’s comments on the Insurrection Act overshadowed the fact that, in his press conference Wednesday, he declined to pass judgment on federal police forces’ brutal actions near Lafayette Square on Monday.

Esper, who was among the officials with President Donald Trump that evening, has faced criticism for his participation in Trump’s photo op outside St. John’s Episcopal Church adjacent to the park just minutes after U.S. government police had just violently cleared demonstrators.

Esper told reporters Wednesday he had not been aware beforehand of the forcible steps that federal forces would take that evening. But he was neutral on whether their actions — or the order to rapidly clear protesters from the area, reportedly given by Attorney General William Barr — were appropriate.

“They had taken what action I assume they felt was necessary, given what they faced,” Esper said. “It was a law enforcement action,” he later added.

Some details of what happened near the church have varied. But most of the accounts of witnesses, verified by video, have been consistent.

Officers from a variety of federal organizations, including the Park Police and the National Guard, were involved. The police used batons, rubber bullets, pepper spray and an unidentified chemical gas to disperse scores of demonstrators.

The Park Police said Tuesday that the assault was triggered by demonstrators throwing objects at police and that it was announced beforehand on a loudspeaker, but reporters and protesters on the scene have not corroborated those claims.

Esper told reporters the National Guard troops “did not fire rubber bullets or tear gas,” but he did not explain what weapons they may have used or what their role was that evening, and he was not asked.

Esper said he had been aware that he and Army Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, would be joining the president and other top administration officials at the church. But Esper said he did not know much more than that beforehand.

'Battlespace' debate

On a separate issue, Esper has drawn criticism for a term he used in a call with governors Monday, audio of which was subsequently leaked. Esper used the word “battlespace” in the call to describe protest locations in U.S. cities. He said Wednesday that in retrospect he would not have used the term, even though he said he did not mean to refer to U.S. citizens.

Trump and Esper have drawn sharp criticisms from all sides, including the organization VoteVets, which called for the Defense secretary's resignation, to former Defense Secretary James Mattis, who on Wednesdsay broke his silence on the matter.

In a rare statement directly criticizing the administration he once served, Mattis implicitly went after his successor to the post. Esper served under Mattis as Army secretary at the outset of the Trump administration.

"We must reject any thinking of our cities as a 'battlespace' that our uniformed military is called upon to 'dominate,'. Mattis wrote in a statement to The Atlantic. "At home, we should use our military only when requested to do so, on very rare occasions, by state governors."

Esper indicated that the Army is conducting a probe into an Army medical helicopter being used to fly low over protesters in Washington, in what was construed as an attempt to intimidate them.