[Pam] Bondi, Trump’s new pick to lead the Justice Department, has said nothing publicly about Jan. 6, the perpetrators of the Capitol attack or whether she agrees with Trump’s view of the riot. [Suzanne] Monk, who is leading an effort called the J6 Pardon Project, has told allies she is working to open lines of communication with Bondi. In the meantime, Jan. 6 defendants and allies have continued hoping and speculating.
« "Why Mass IncarcerationIs Uniquely American" | Main | Prez Biden issues full pardon to his son Hunter »
December 1, 2024
Fascinating account of concerns and chatter over Prez-Elect Trump's pardon plans for Jan 6 defendants
In this post the morning after Donald Trump's election, I wondered aloud about how he might seek to make good on his campaign promises to pardon persons federally prosecuted for their behaviors at the Capital on January 6, 2021. In that post, I noted that Trump's campaign team seemed eager to stress that Jan 6 clemencies would be decided "on a case-by-case basis." But that statement raises all sorts of questions about what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants likely to seek clemency.
A new lengthy Politico article notes that adds further intrigue to this developing story under the headline "Trump promised Jan. 6 pardons. His post-election silence is making loyalists nervous." I recommend the piece in the full, and here are excerpts (with links from the original):
Donald Trump campaigned on a pledge to pardon a vast swath of supporters who stormed the Capitol on Jan. 6, 2021. But his silence on the matter since winning the election has begun unsettling some fervent allies awaiting even the slightest signal from Trump about how he intends to turn his campaign rhetoric into reality.
Federal judges overseeing Jan. 6 cases have been left to guess at Trump’s plans. As a result, they have allowed nearly all cases to proceed, saying Trump’s clemency plans are merely “speculative.” Meanwhile, federal prosecutors have brought a handful of new Jan. 6 felony cases since Election Day, and they’ve argued repeatedly against efforts by defendants to delay their cases to await Trump’s inauguration.
The Justice Department has charged more than 1,500 people for their roles in the riot. Throughout the 2024 campaign, Trump repeatedly said he would pardon many of them. But he left the specifics unclear, and never said whether he might leave in place some prosecutions, particularly against people who assaulted police.
Now that he’s president-elect, his failure to say more has begun nagging at some of his die-hard supporters, who have engaged in a public guessing game on X about Trump’s intentions.... Adding to the anxiety expressed by some Jan. 6 defendants is a statement from Trump’s transition team that hinted at a far more limited approach than the sweeping pardons that many in Trump’s base have demanded.
“President Trump will make pardon decisions on a case-by-case basis,” incoming White House press secretary Karoline Leavitt said in the statement. The meaning of “case-by-case” has morphed into a raging debate among Jan. 6 defendants and their allies....
[T]wo Trump allies in Congress — Reps. Marjorie Taylor Greene (R-Ga.) and Andy Biggs (R-Ariz.) — issued new calls this week for Trump to issue blanket pardons. [Julie] Kelly, who has spoken with Trump and congressional Republicans about concerns with Jan. 6 prosecutions, has similarly called for a blanket pardon to address what she calls a “blanket denial of the due process rights of Jan. 6 protesters.”
Kelly suggested that Trump’s public silence belies an enormous amount of advocacy behind the scenes, but she said there are also “political sensitivities” about the notion of pardoning those with assault charges — even though she believes many such pardons would be justified....
For any and everyone interested in these issues and broader clemency matters, let me further recommend my recent Sentencing Matters Substack post as well as this December 10 event I will be moderating on federal clemency topics.
A few recent related posts:
- How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
- Prez-Elect Donald Trump already getting notable clemency requests amid lots of expectations
- Imagining better clemency traditions than turkey pardons and lame-duck frenzies
- Register for "President Biden’s Pardon Legacy and the Future of the Federal Clemency Power"
December 1, 2024 at 04:22 PM | Permalink
Comments
The clemency power, always plenary and frequently abused (including by the events today), should be changed by constitutional amendment. It can be used by a sufficiently irresponsible person to essentially emulsify the judicial system.
Posted by: Bill Otis | Dec 1, 2024 10:18:43 PM
Given that no one was prosecuted for the riot that burned down the St. John's church in DC, each J6 defendant should be pardoned--except for those who assaulted cops.
Posted by: federalist | Dec 2, 2024 9:40:33 AM
Doug, feels to me like you have to hand it to Trump. He has said he will pardon these people, and the voters voted on it.
Posted by: federalist | Dec 2, 2024 1:32:24 PM
But did Trump promise a blanket pardon or a case-by-case approach? Which one did you vote for, federalist?
Specifics aside, I do give Trump credit for making clear certain clemency priorities as a candidate, and I hope he makes robust use of his clemency authority throughout his term.
Posted by: Doug B | Dec 2, 2024 3:52:21 PM
Wow, Doug. Trump's disclosure was clear enough for purposes of voting. The snark doesn't really advance the ball.
Posted by: federalist | Dec 3, 2024 9:52:09 AM
Not snark, federalist, but genuine questions, for which I am eager to get an answer because I find the clemency issues here fasctinating and consequential.
Did you understand Trump to be promising a blanket pardon for all Jan 6 defendants (which would be 1500+ persons, perhaps right away) or just a case-by-case review (which might only lead to only a few hundred grants, perhaps not for years)?
You said "the voters voted on it," but I am trying to understand what you think it was that "voters voted on." Of course, I know you cannot speak for all Trump voters, but I am eager to know which version of a pardon pledge you thought you were voting for.
Posted by: Doug B | Dec 3, 2024 10:21:42 AM
I didn't get that granular. I doubt most voters did. Basically, I trust that Trump will do what he feels is right. I think you will see quick movement on many.
Posted by: federalist | Dec 3, 2024 10:35:14 AM
That's a sensible answer, federalist, but it undercuts somewhat any claim that voters voted on blanket Jan 6 pardons. I have been granular, and Trump and his people to said repeatedly that Jan 6 pardons would be case-by-case (whereas he made a direct promise to commute Ross Ulbright on day 1). The Politico article in the main post is all about concerns from Jan 6 supporters that Trump will not take the blanket route.
In the end, your "I trust Trump on clemency for Jan 6er" may be the proper view as to what's been blessed by the voters. And it will be interesting to see how he delivers -- procedurally and substantively -- on this Jan 6 clemency trust. I assume Trump has a lot of pressures on his time and so little extra bandwidth for reviewing Jan 6 case files. So it is likely the sorting by (and trust in) Trump's staffer(s) that will be key determinates of who is getting Jan 6 clemency and when.
Posted by: Doug B | Dec 3, 2024 10:50:16 AM
It will be interesting. Since he pledged to do it (although he wasn't 100% clear on all the details), any pardons/remissions will have democratic legitimacy. It's good to see that you understand that point, even if you are not 100% in agreement.
Posted by: federalist | Dec 3, 2024 3:36:54 PM
Well, federalist, any and all clemency decisions by any and all Presidents always have more "democratic legitimacy" than any sentencing decisions by other federal sentencing decision-maker. The Prez is elected, whereas the federal prosecutors bringing charges, federal judges imposing sentences, and federal prison officials implementing those sentences, are not. That said, I agree that there is even more democratic legitimacy when someone campaign on a policy and there implements that policy.
More broadly, I think it would be great for democracy and our justice systems if candidates for Prez discuss clemency plans/priorities --- which, like other campaign pledges, may not always be fufilled, but will provide a kind of democratic feedback loop we should all want to encourage.
Posted by: Doug B | Dec 3, 2024 6:47:43 PM
Doug, honestly, that's just silly. No one elected Bill Clinton to pardon Marc Rich. And don't your fellow travelers argue against election of judges and even prosecutors?
Posted by: federalist | Dec 4, 2024 9:14:36 AM
federalist: whether a pardon decision (or any other) is sound or corrupt is distinct from whether the decision-maker was democratically elected. Decisions made by those democratically elected, as I see it, always have more "democratic legitimacy," but they still can be terrible. That was meant as my only point in using that phrase.
More broadly, there are lots of folks who think criminal justice/sentencing decisions and others are made better by folks entirely insulated from democratic influence. The federal system, which I see as perhaps the most broken, reflects that lack of "democratic legitimacy" reality more than nearly all state systems. Personally, I favor criminal justice structures with more democracy in which the people and non-electeds are checking each other. That is why I favor much more jury involvement (and jury respect) in our justice systems. It is also why I would like to see the federal justice system subject to much more democratic input/influence, and much more transparency and review by elected officials, to review and check the work of federal prosecutors and judges. But that might require constitutional amendments.
Posted by: Doug B | Dec 4, 2024 9:30:56 AM
Please. I hate getting into these silly parlor debate tactics. Yes, when someone who is "democratically" elected (the quotes come in because our system is not wholly democratic, and that's not a criticism), then his/her lawful decisions have democratic legitimacy. That is somewhat tautological. My point is greater. The J6 defendants issue was actively discussed in the campaign, and Trump indicated in a manner for all the world to see that he would use his pardon power to address what he feels is an injustice. The voters knew this, and they elected him. That matters from a democracy standpoint.
As for your OT riff on the federal system, respect for the jury system etc. etc., I think your arguments would be a lot better had you noted some of the obvious partisan use of our federal justice system. And you know that I am a strong supporter of clemency used wisely. I think that pardons for ancient history crimes should be freely granted, and to be honest, I think that when the President pardons someone, collateral consequences should largely go away, so I am a little uneasy about Scarsi's decision at the behest of the Special Counsel. But you know what, Doug, you don't really get to decry that, as "Judge" Sullivan played silly games with the dismissal of Flynn's case. Now it's a little bit of an apples to oranges comparison, but the principle seems the same. (And no one can really say that Flynn was fairly treated by the DOJ/Special Counsel.)
Its funny too--our friend anon poses a question to me, but cannot answer mine.
Posted by: federalist | Dec 5, 2024 9:28:25 AM
federalist: not trying to play parlor games, rather trying to highlight the reality that clemency reflects one of the few federal CJ decision made by a democratically elected official. And, as I said before, I agree that there is even more democratic legitimacy in clemency decisions if/when someone campaigns on a policy/plan and then implements that policy/plan. (I also believe your many concerns with DOJ are connected to the lack of transparency and democratic checks on DOJ actions.)
And I do not know why you think I am inclined to "decry" Judge Scarsi's decision, I have not even mentioned it. (And that may, perhaps, explain why anon is disinclined to respond to you -- he may not want to further engage with someone with a tendency to head off-topic with a partisan focus reacting to their own inventions.)
Posted by: Doug B | Dec 5, 2024 10:07:57 AM
First of all, Doug, anon went OT, and I happily answered. With respect to Scarsi, I was a little unclear. I was being predictive, lol. I would think that you would find it a little unseemly for an Article III judge to make his feelings about a presidential pardon. My view is that the judiciary really doesn't get to question things like that and should aim to give the pardon full effect. I would have dismissed the indictment. Not because I agree with the pardon but because there may be pardons resulting from unfair convictions, and in those cases, I want the pardon to have as broad a reach as possible. I would think that you agree from, you know, a policy perspective. Actually, if you are inclined, I would be fascinated by a full-on discussion about what people think ought to be the full reach of a pardon. I think you and I are pretty aligned on this issue.
Posted by: federalist | Dec 5, 2024 2:09:52 PM
The Confederate soldiers committed treason against the United States and killed hundreds of thousands during the course of the rebellion.
Yet, in 1868 President Andrew Johnson pardoned every single one of them. Because of his conduct, Johnson became the most hated President to that time, was impeached, and barely escaped conviction in the Senate by one vote. Question: If all confederate traitors can be pardoned, what's the big deal about pardoning the Jan. 6 insurrectionists?
Posted by: anon12 | Dec 5, 2024 3:54:22 PM
I rather liked the Scarsi opinion for calling out the sloppiness of the pardon and the statement in support of it. The judge still gave the pardon its proper legal effect, and I have no problem with judges adding a little modest commentary while following the law. Former Judge Paul Cassell did that in a notable way encouraging clemency in the Angelos case, for example (though I am not sure he got the law right). And for lots of pardon talk, here are links to discussions on the topic future and past:
https://moritzlaw.osu.edu/president-bidens-pardon-legacy-and-future-federal-clemency-power
https://www.youtube.com/watch?v=af466WfJ1Y0
https://youtu.be/Dn2TeU8SFhs?feature=shared
https://youtu.be/4ucYMzxCVvY?feature=shared
https://youtu.be/l0Th0M2r0R8?feature=shared
Posted by: Doug B | Dec 5, 2024 4:42:43 PM
