Presidential protection or abduction? Secret Service wrong for all the right reasons on Jan. 6

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.