Trump’s promise to pardon the January 6th rioters

What it means for them, the rule of law, and the American taxpayers

For the second time, Time Magazine named Donald J. Trump “person of the year.” Sam Jacobs, Editor-in-Chief, explained to the readers that Trump was selected “for marshaling a comeback of historic proportions, for driving a once-in-a-generation political realignment, for reshaping the American presidency and altering America’s role in the world.”

Well, he certainly has reshaped the American presidency.

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In an interview with Time Magazine, Trump harped on some of the promises he made along the campaign trail regarding what’s to come in his term. Among these was the promise to pardon the individuals who attacked the United States Capitol to stop the legitimate transfer of power from Trump to Biden following the 2020 election.

Trump said “a vast majority of them should not be in jail.”

As of August, 1,488 individuals had been arrested from almost every state and the District of Columbia for their involvement in the events of January 6, 2021. They have been charged with a variety of crimes, from misdemeanors to assaults and seditious conspiracy. Law enforcement is still trying to identify over 80 people for “acts of violence at the Capitol and to find out who placed pipe bombs outside the Republican and Democratic national committee’s offices the day before the Capitol attack.”

As I said in my latest piece for The Bulwark, violent offenders whose profiles suggest they might commit more violent crimes in the future should be at the bottom of a president’s list of pardons.

What’s happened so far with those arrested and charged over J6?

The Justice Department’s August report also stated that 894 people have pleaded guilty to a span of the charges, 223 individuals have been convicted at trial, and 562 have been sentenced to incarceration. There are 172 people who will be fulfilling their sentences on home detention.

Among those who pleaded guilty, 288 have pleaded guilty to felonies, and 606 individuals have pleaded guilty to misdemeanors. Of those who pleaded guilty to felonies, 146 of them pleaded guilty to “federal charges of assaulting law enforcement officers.”

None of the defendants were charged exclusively “with obstructing, influencing, or impeding an official proceeding or attempting to do so. Every defendant also faces other criminal charges—felonies, misdemeanors, or both.”

Bear in mind that many of these people were caught on tape brandishing stun guns, flagpoles, fire extinguishers, bike racks, batons, a metal whip, office furniture, bear spray, a tomahawk ax, a hockey stick, knuckle gloves, a baseball bat, a pitchfork, pieces of lumber, crutches and even an explosive device during the attack.

Could Trump pardon them?

Without a doubt, it will be within Trump’s constitutional powers as a President. The only textual constraint in Article II is that pardons may not be issued in cases of impeachment.

Roughly speaking, pardons can be broken down into three main categories: (1) those issued in the name of mercy after a weak or improper conviction, (2) those made in political “amnesty” to help heal the nation, and (3) those that are self-interested and corrupt.

Even better for Trump, the Supreme Court classified the pardon power as a “core” presidential power in the case Trump v. United States. The majority went on to explain that pardons could be wielded by presidents, freely and with no accountability or scrutiny.

So if Trump were to sell pardons to the highest bidder, it would be difficult—if not impossible—to investigate or prosecute that bribe. The Court’s rationale is that we don’t want to discourage presidents from fulfilling their duties quickly and efficiently without fear of prosecution later down the line.

What are examples of other “bad” pardons?

George H.W. Bush’s pardon of those convicted in relation to the Iran-Contra scandal was criticized for covering up and immunizing the president’s own possible wrongdoing. Trump appeared to do the same thing by pardoning Roger Stone and Paul Manafort in connection with Robert Mueller’s investigation into Russian influence in Trump’s 2016 election win.

Then there are the potential pay-to-play pardons such as Bill Clinton’s pardon of the “fugitive financier” and mega-tax evader Marc Rich whose wife then donated $450,000 to the Clinton library. Despite Congress and the U.S. Attorney’s Office for the Southern District of New York investigating that pardon, since Trump v. United States, there is now effectively a ban on oversight for presidential pardons.

And lastly, there are the individuals who clearly demonstrate a likelihood of committing more violent crimes in the future and yet are afforded the extraordinary “mercy” and “grace” of a pardon. Trump has already shown us that he is willing to pardon such people after he commuted the life sentence of Jamie A. Davidson, who had been convicted of murder in 1993 for his role in the death of an undercover police officer in upstate New York. After the pardon, Davidson went and served three months in prison for assaulting his wife.

The J6 rioters fall within this latter category of people who, if pardoned, potentially pose a threat to the public.

If it’s constitutional, why shouldn’t Trump pardon these people?

Although the law does not distinguish between good and bad pardons, there are still bases for sorting through which are right and which are wrong—morally, logically, and practically.

I spoke with Pamela Comme from WESH 2 News about one of the individuals who is in prison for his role in the violence that took place at the Capitol, Joe Briggs. Briggs sustained a head injury in Iraq and later became a correspondent for Infowars. He also is a leader of the Proud Boys. Briggs was sentenced in a Florida federal court in August of 2023 to 17 years after a jury convicted him of seditious conspiracy; conspiracy to obstruct an official proceeding; obstruction of an official proceeding; conspiracy to use force, intimidation or threats to prevent officers of the U.S. from discharging their duties; interference with law enforcement during civil disorder; and destruction of government property.

His sentence for “terrorism” was enhanced by U.S. District Judge Timothy Kelly after Briggs had torn down a fence between police and rioters, an act the judge described as a “deliberate, meaningful step” in the chaos that took place that day.

Norm Pattis, the lawyer representing Briggs, has said that his client will be seeking a Trump pardon power. He argued that the “charges don’t reflect the crime,” and that January 6th was simply a “riot gone bad.” Pattis only described the chaos and violence as “awkward, inconvenient and sometimes violent,” with “no attempt to overthrow the government.” Accordingly, Pattis believes it “shouldn’t cost anybody decades behind bars.” Further, Pattis argues that Briggs is deserving of a presidential pardon because of his military service, where he “put his life on the line for the American person” and to keep his “disability pension.” Pattis emphasized, “Regardless of what you say about January 6th, the afternoon should not cost the family the pension.”

Pattis didn’t mention that the same afternoon cost five families a loved one. A pardon would send a message that J6 was A-okay.

Aside from “forgiveness,” what are the practical effects of a pardon?

A pardon is not like a judicial exoneration, which completely erases all evidence of a criminal conviction. If someone is incarcerated and receives a full pardon (much like a lesser commutation), they will be released from jail. However, they also can have a lot of their rights and privileges restored, which would have been lost had the felony conviction been upheld. The rights that may be stripped from convicted felons include:

• bans on doing business with the federal government, including acting as a contractor;

• restrictions on voting rights and jury rights;

• bans on obtaining, receiving, transporting, or possessing any firearm or ammunition;

• a ban on enlisting in the federal armed forces;

• bans on obtaining certain federal licenses (such as U.S. Customs and import-export brokers);

• bans on holding certain federal and state positions;

• potential restrictions on other job prospects, such as labor organization posts, and banking or insurance company positions;

• an increased sentencing range if convicted of future crimes;

• restrictions on travel;

• loss of parental rights; and

• loss of certain public benefits and housing.

What this means is that these people who stormed the country’s Capitol almost four years ago would—to a large degree—be treated as though they never did anything wrong. They would be restored to their full potential to commit similar violence all over again. And the rest of us will go from paying for their prison time to paying for their pensions.

What’s the takeaway?

January 6th was a day that should be remembered as a hateful and brutal attack on American democracy—no matter how many times Trump calls it “a day of love.” For a president to send a message that those responsible for J6 should feel vindicated and justified for what they did is dangerous.

Elections matter.

Follow the facts,

KW

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Check out my latest book, Pardon Power: How the Pardon System Works—and Why.

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