Trump promised to pardon Jan. 6 felons. Where does that stand now?
President-elect Donald Trump says he鈥檒l pardon many of those convicted in the Jan. 6, 2021, attack on the U.S. Capitol 鈥 a potentially controversial precedent.
President-elect Donald Trump says he鈥檒l pardon many of those convicted in the Jan. 6, 2021, attack on the U.S. Capitol 鈥 a potentially controversial precedent.
For millions of Americans, Donald Trump鈥檚 election victory was a cause for celebration. But for a select group, it meant even more: the prospect of legal reprieve.
When Mr. Trump ascends the Capitol steps in late January for his second inauguration, he will be standing where thousands of his supporters violently stormed the building four years prior. Protesting what he claimed was a 鈥渟teal鈥 of the 2020 election 鈥 without conclusive evidence of fraud that could have swayed the outcome 鈥 Mr. Trump鈥檚 supporters attacked police officers, smashed windows, and ransacked congressional offices, trying to keep him in office.
Since then, the U.S. Department of Justice has charged over 1,100 individuals with crimes related to the Jan. 6, 2021, riots. As he campaigned for a second term, Mr. Trump promised to pardon at least some of these Jan. 6 defendants. After he secured victory, those followers celebrated not just his triumph, but also the prospect of their own freedom.
Some who condemned the Capitol attack may find this use of executive clemency troubling. For example, at a sentencing in April, federal Judge Royce Lamberth warned of Americans resorting to 鈥渧igilantism, lawlessness and anarchy鈥 if they don鈥檛 like election results.
Yet pardons would be perfectly constitutional. The pardon power exists because America鈥檚 founders 鈥渨anted to provide some kind of check on the prosecutorial power of the executive,鈥 says Michael Gerhardt, a professor at the University of North Carolina School of Law.
鈥淚t鈥檚 a way to correct an injustice,鈥 he adds. 鈥淭hat鈥檚 how Trump will see it.鈥
Where do the Jan. 6 cases stand now?
Six people died during or following the Jan. 6 attack, and some 140 police officers were injured, according to the Justice Department.
As of January, the department said 749 federal defendants have received sentences for criminal activity on Jan. 6. Charges in the attack have ranged from felony assault and use of a deadly or dangerous weapon, to misdemeanor entering or remaining in a restricted federal building.
The president has the power to issue a pardon, which would free a defendant and erase all records of that person鈥檚 criminal offense. However, the person charged or convicted must accept responsibility for the crime. As president, Mr. Trump could also issue a commutation, which would shorten or lessen a defendant鈥檚 sentence but keep their original offense on the books. Lawyers for some of the Jan. 6 defendants have already begun asking for sentencing delays.
Lawyers for one defendant, Christopher Carnell of North Carolina, filed a motion Wednesday asking to delay a hearing in the case due to the election result. Citing President-elect Trump鈥檚 鈥渕ultiple clemency promises,鈥 his lawyers wrote that Mr. Carnell, a 鈥渘onviolent entrant to 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.鈥
The judge overseeing the case denied that request, but other Jan. 6 defendants are optimistic that they will be granted early release. One is Ronald McAbee, a former sheriff鈥檚 deputy in Tennessee sentenced in February to 70 months in prison on six felony charges 鈥 including assaulting an officer 鈥 related to his participation in the Capitol riot.
鈥淪itting in prison, listening to the election results ... I feel vindicated,鈥 wrote Mr. McAbee in a note that his wife posted on social media. 鈥淒onald Trump has been elected ... and we are coming home! All the hardships we have endured are coming to an end.鈥
What kind of power does Trump have here? What has he promised?
The presidential pardon power is broad. Article 2 of the Constitution says the president can 鈥済rant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.鈥 Perhaps the most famous presidential pardon came when Gerald Ford pardoned Richard Nixon after the Watergate scandal.
鈥淭here aren鈥檛 really restrictions,鈥 says Mark Osler, a University of St. Thomas School of Law professor.
鈥淵ou can take issue with the morality of it, the policy of it, but not that he has the power to do it,鈥 he adds.
Mr. Trump issued 138 pardons during his first term, including for political allies like Steve Bannon and Paul Manafort. Other pardons went to conservative celebrities like Joe Arpaio, an Arizona sheriff convicted of criminal contempt involving the treatment of unauthorized immigrants, and Dinesh D鈥橲ouza, who pleaded guilty to making illegal campaign contributions.
Describing the Jan. 6 defendants on the campaign trail as 鈥減olitical prisoners,鈥 Mr. Trump promised on multiple occasions to pardon at least some of them. 鈥淚f they鈥檙e innocent, I would pardon them,鈥 he said in July.
The Trump campaign said, before the election, that he would decide pardons 鈥渙n a case-by-case basis when he is back in the White House.鈥
For Professor Osler, that suggests 鈥淚t鈥檚 going to be some [Jan. 6 defendants], not all鈥 who receive clemency.
What would be the significance of such pardons, on this scale?
A widespread pardon of potentially hundreds of federal criminal offenders would represent an unusually sweeping and premeditated use of the pardon power.
President Jimmy Carter, who in 1977 fulfilled a campaign promise by pardoning hundreds of thousands of men who evaded the Vietnam War draft, is believed to be the only other president to make such a promise.
鈥淲e don鈥檛 see presidents talk about using the pardon power before they take office,鈥 says Professor Osler. 鈥淚t鈥檚 a very unusual promise to make,鈥 he adds. 鈥淲e鈥檒l see how that plays out.鈥
President Carter鈥檚 blanket action proved controversial. George Washington鈥檚 pardon of participants in the Whiskey Rebellion 鈥 the first-ever use of the pardon power 鈥 was also unpopular with some.
A broad pardon of the Jan. 6 defendants is likely to be controversial as well. Some experts say it would be a troubling precedent, especially with regard to future elections.
A blanket pardon 鈥渟ends a message of condoning violence against the United States and [condoning] violence to contest an election in the United States,鈥 says Rachel Barkow, a professor at the New York University School of Law.
鈥淚f he commutes sentences or reduces them,鈥 she adds, 鈥渢hat would say maybe that what they did is not OK, but they were overpunished.鈥
Editor鈥檚 note: This article was updated Nov. 15, the date of original publication, to make a reference to claims of election fraud clearer and more accurate.