Days after a deadly insurrection at the Capitol, Defense Department officials are unsure how many, if any, active-duty troops took part in the Jan. 6 riots.

Finding out how many, and what to do about them, is easier said than done.

“...investigations into service members fall under the services,” a defense official told Military Times on Monday. “If the member is no longer in the military it would fall under DoJ”.

The Justice Department is investigating 25 participants in the protest-turned-insurrection that ravaged the Capitol building on Wednesday, but it’s not clear who among them is either a currently serving member of the military, or perhaps a retiree subject to military criminal investigation.

Army Secretary Ryan McCarthy, who has been leading the Pentagon’s efforts to explain its role in the response to the riot, shared the 25 figure during a call with lawmakers Sunday. That information was relayed to him during an interagency briefing with DoJ officials, the lead investigating organization, his spokeswoman, Lt. Col. Audricia Harris, told Military Times.

Some of those may be active or retired service members, though that information will likely trickle out in the coming days and weeks.

Members of Congress are asking military leaders to prosecute any troops — and possibly some veterans — involved the attack on the Capitol, saying those individuals have violated their oath to the Constitution and the country.

“Any current or former military members who may have participated have disgraced themselves and committed serious crimes against the people of the United States,” Reps. Ruben Gallego, D-Ariz., and Sara Jacobs, D-Calif., wrote in a letter to Acting Defense Secretary Chris Miller on Sunday.

“Any such individuals should have the book thrown at them for violating their oaths and duty to the nation,” they added.

The exact number of service members and veterans among the rioters is unknown. Hundreds of President Donald Trump’s supporters overwhelmed police and occupied the Capitol building on Wednesday, the same day members of Congress were scheduled to certify President-elect Joe Biden’s victory in the 2020 presidential election.

Five people died in the violence, including Capitol Hill police officer Brian Sicknick — a former New Jersey Air National Guard staff sergeant who was struck in the head with a fire extinguisher — and Ashli Babbitt, a Air Force veteran-turned-conspiracy theorist who was shot by security while trying to force her way into the House chamber.

The military’s role in investigating or prosecuting service members’ role in the protest and/or riot is complex.

With the FBI leading the investigations, any criminal charges will first fall under DoJ’s purview, as the events took place out of the services’ jurisdiction. Further, the services’ individual investigative commands, as a matter of policy, tend to let federal authorities take the lead when federal crimes are part of the equation.

For those charged by the FBI, there could still be administrative consequences, up to and including involuntary discharges from service. Separate courts-martial for Uniform Code of Military Justice charges not covered by federal indictments are also possible, but not common.

At least one active-duty service member is under a local command investigation.

Capt. Emily Rainey, 30, a psychological operations officer, is under investigation by 1st Special Forces Command at Fort Bragg, North Carolina, spokesman Maj. Dan Lessard told Military Times on Sunday.

Rainey told the Associated Press that she was not involved in the riot that broke out inside the Capitol, and there are no indications she’s under federal investigation.

But her presence at the rally, and her admission that she organized a group of 100 community members from back home in North Carolina to attend the protest, could result in administrative or criminal action by the Army.

“I was a private citizen and doing everything right and within my rights,” Rainey told AP, although despite having resigned her commission in lieu of discipline for an incident last year, she is still on an active-duty status.

The defense official did not respond to questions from Military Times about whether acting SecDef Miller would issue guidance to the services to report up their local investigations into possible involvement in the protest or riot, for DoD’s own awareness.

Recall and prosecute?

On Sunday, authorities arrested retired Air Force Lt. Col. Larry Rendall Brock Jr. on trespassing and disorderly conduct charges for his involved in breaching the Capitol.

Photographs caught Brook with other rioters on the Senate floor during the attack, wearing military body armor with unit patches and carrying zip-tie handcuffs.

Rep. Jason Crow, D-Colo., said he spoke with McCarthy, the Army secretary, this weekend and expressed “grave concerns about reports that active-duty and reserve military members were involved in the insurrection.”

Crow, a former soldier who deployed to Iraq and Afghanistan, said he wants courts-martial against any troops involved in the attack, and a review by Army Criminal Investigation Command into the background of any troops involved in inauguration security, “to ensure that deployed members are not sympathetic to domestic terrorists.”

Gallego, who served in Iraq with the Marine Corps, in his letter to Miller suggested that some individuals in inactive service could be recalled to active duty to face prosecution for crimes committed in the Capitol assault.

But in Brock’s case, his retirement may present legal challenges. In recent years a number of retirees prosecuted and convicted of crimes that occurred after they retired have argued that they should not be subject to UCMJ.

So far, those arguments have failed. Military high courts have sided mostly with the government, specifically allowing for prosecution of retired military members in a reserve status, which is the case for many who have retired from active service but have not yet reached a full 30 years of combined service, at which point they are considered fully disaffiliated from DoD.

In early 2020, the Supreme Court declined to hear a petition from a retired Marine convicted of raping a woman in Japan while working as a contractor. That move meant that his military court conviction held.

Gallego asked DoD leaders to work closely with DoJ and FBI officials to identify any troops or veterans involved in the violence.

In addition to the security requests, members of Congress are also pushing military officials to better honor Sicknick’s heroism.

Rep. Elissa Slotkin, D-Mich., said the Capitol Police officer’s sacrifice deserves “posthumous special honors” to include burial at Arlington National Cemetery. Sicknick served in the Guard from 1997 to 2003, but is not eligible for burial at the site.

“Officer Sicknick died in the line of duty as a U.S. Capitol Police Officer, and did so living up to the oath he swore in the military: to protect and defend the Constitution,” Slotkin wrote in a letter to military officials. “He has paid the ultimate sacrifice, and he and his family should be recognized for all he did for his country.”

Meghann Myers is the Pentagon bureau chief at Military Times. She covers operations, policy, personnel, leadership and other issues affecting service members. Follow on Twitter @Meghann_MT

Leo covers Congress, Veterans Affairs and the White House for Military Times. He has covered Washington, D.C. since 2004, focusing on military personnel and veterans policies. His work has earned numerous honors, including a 2009 Polk award, a 2010 National Headliner Award, the IAVA Leadership in Journalism award and the VFW News Media award.

Todd South has written about crime, courts, government and the military for multiple publications since 2004 and was named a 2014 Pulitzer finalist for a co-written project on witness intimidation. Todd is a Marine veteran of the Iraq War.

Kyle Rempfer is an editor and reporter whose investigations have covered combat operations, criminal cases, foreign military assistance and training accidents. Before entering journalism, Kyle served in U.S. Air Force Special Tactics and deployed in 2014 to Paktika Province, Afghanistan, and Baghdad, Iraq.

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