Trump win spotlights pledge of mass pardons for Capitol attack
When Donald Trump is sworn in as the 47th US president , more than 1,500 Americans convicted or awaiting trial for the Jan. 6, 2021, attack on the US Capitol will be waiting to see if he fulfills a campaign pledge to pardon them.
The riot prompted the largest criminal probe in US Justice Department history and prosecutors continue to bring new charges nearly four years later. The cases have consumed the federal court in Washington, with judges producing hundreds of pages of findings documenting the culpability of Trump's supporters for the violence and disruption as Congress met to certify his 2020 loss to President Joe Biden.
Trump will have the authority to clear all of that away the moment he takes office on Jan. 20. The president's clemency power is vast and subject to few limits.
Trump hasn't offered details about how comprehensive his pardons would be or how he'd carry them out. There is precedent for large-scale presidential clemency. President Jimmy Carter signed a proclamation in 1977 pardoning Americans who avoided the military draft during the Vietnam War, although there was an exception for crimes involving "force or violence."
List: Southern California residents accused or convicted in the Capitol insurrection
The prospect of mass Jan. 6 pardons has faced backlash when Trump has brought it up since leaving office. Critics raise high-level concerns about the message pardons would send about accountability for an event that undermined the peaceful transfer of power as well as immediate fears about threats to the lawyers, judges, witnesses and others involved in these cases.
High-level felonies
Judges typically have ordered pretrial detention for defendants charged with violence or more serious felonies. Of the nearly 1,000 people sentenced to date, two-thirds have received time behind bars, ranging from several days or weeks for misdemeanor convictions to months or years for crimes of violence or high-level felonies like seditious conspiracy.
Louis Manzo, a former Justice Department lawyer who helped prosecute members of the Oath Keepers extremist group over Jan. 6 activities, said in an interview that he is worried about the safety of current and former prosecutors. Manzo lamented the prospect of the pardoned defendants and other Americans feeling emboldened to use force to advance their political views in the future.
"Hopefully we as a country can move forward, but there's just never going to be any consequences for taking the Capitol" if Trump orders widespread clemency, Manzo said.
A Justice Department spokesperson declined to comment. Trump's campaign did not immediately return a request for comment.
Trump has echoed claims by some Jan. 6 defendants and their supporters that the investigation is politically motivated and said over the summer that he would "absolutely" issue pardons. Although the Capitol attack featured violent clashes between rioters and law enforcement officers, Trump has called it a "day of love."
Assault, obstruction
Judges handling these cases have denounced such depictions. More than 500 people have been charged with assaulting, impeding or obstructing officers, according to the US attorney's office in Washington. Many of those cases involved charges for using or possessing weapons.
Hours after news outlets declared Trump the winner Wednesday morning, at least one Jan. 6 defendant signaled that he was pinning his hopes on Trump's clemency promise. A lawyer for Christopher Carnell, who was found guilty of one felony and multiple misdemeanor offenses for going into the Capitol on Jan. 6 and is awaiting sentencing, asked to postpone an upcoming hearing, citing Trump's electoral victory.
"Mr. Carnell, who was an 18-year-old nonviolent entrant into the Capitol on January 6, is expecting to be relieved of the criminal prosecution that he is currently facing when the new administration takes office," attorney Marina Medvin wrote. US District Judge Beryl Howell denied the request.
Medvin did not respond to a request for comment.
The Justice Department has an office to aid the White House on executive clemency actions, but the president ultimately isn't required to go through a formal process.
Trump could fully pardon defendants or shorten sentences through commutations. When he spoke about his plans at an event in July, he said he would issue pardons "if they're innocent." Pressed on the fact that many defendants had already been convicted, Trump replied that they faced "a very tough system."
'Dramatic blow'
Mary McCord, who leads the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, said a full-scale pardon for Jan. 6 would be a "dramatic blow." Even if Trump limited his actions to defendants who weren't convicted of violence, she said, the pardons might still clear individuals who committed serious crimes but agreed to plea deals with lesser offenses.
It's also not clear if any executive action would be forward-looking and offer blanket protection from pending and future prosecutions. That would be trickier to execute but might not be necessary, McCord said, since Trump could simply direct Justice Department officials to dismiss existing cases and not to bring new ones.
Federal judges generally aren't allowed to publicly speak about pending cases, but members of the US District Court in the nation's capital have made clear through written opinions and comments in court that they considered Jan. 6 a threat to democratic institutions. Judges have also spoken during hearings about their hope that the convictions and prison sentences will deter a similar event in the future. Manzo, the former Justice Department lawyer, predicted "extreme disappointment" from the bench if Trump makes good on his promise.
"For all of the work that they've put into the cases, for it to all be pardoned will definitely be a shock to the system," he said.
