‘There’s Not A Darn Thing Anybody Can Do’: Rash Of Jan. 6 Pardons Will Mean Trouble, Former Prosecutor Says

If you take Donald Trump at his word, one of his first acts when he’s back in the White House will be to grant pardons to rioters who attacked the U.S. Capitol on Jan. 6, 2021.

A key question is whether Trump would issue pardons on a case-by-case basis or grant a blanket pardon to any and every Jan. 6 defendant regardless of the severity of their charges or conduct.

Trump has only told reporters that he will move “quickly” to review “everything” and has hedged when pressed on whether he will forgo pardons for particularly violent offenders. During an interview on “Meet the Press” earlier this month, reporter Kristen Welker asked Trump if even those rioters who pleaded guilty to assaulting police would be pardoned. Trump replied that these people “had no choice.” It was not clear whether Trump meant they had no choice but to plead guilty and strike a deal with prosecutors or whether he meant they had no choice but to act as they did that day.

Trump’s attitude toward Jan. 6 rioters has always been empathetic. He has called them “patriots” and “political prisoners.” Just this October, he referred to Jan. 6 as a “day of love” — despite over 140 police officers being assaulted and the multiple deaths connected to that day.

Four of Trump’s supporters died, including Ashli Babbitt, 35, of California, a U.S. Air Force veteran shot by a Capitol Police officer while she was trying to breach a window in the Speaker’s Lobby. Roseanne Boyland, 34, of Georgia died of a methamphetamines overdose, and although she was trampled by rioters, medical examiners determined her cause of death to be “acute amphetamine intoxication.” Kevin Greeson, 55, of Alabama suffered a heart attack while standing with Trump supporters outside of the Capitol. Benjamin Phillips, 50, a Pennsylvania resident and the founder of a pro-Trump website, Trumparoo, died of a stroke.

Capitol Police Officer Brian Sicknick, 42, died a day after the attack. Sicknick suffered two strokes; medical examiners attributed his death to natural causes but said the events of Jan. 6 played a role in his death. At least four officers died by suicide in the weeks and months after Jan. 6, including Capitol Police Officers Howard Liebengood and Jeffrey Smith as well as D.C. Metropolitan Police Officers Gunther Hashida and Kyle DeFreytag.

More than 1,500 people have so far been charged with crimes connected to Jan. 6. Of that group, roughly 1,250 have been convicted or pleaded guilty, about half of whom have been sentenced to prison already, according to the Justice Department. Charges have run the gamut from misdemeanors and lower-level offenses like trespassing to felony assault and other serious charges with significant penalties.

Only members of the extremist Proud Boys and Oath Keepers have faced the most serious charge of seditious conspiracy. The leaders of those groups have received the harshest sentences to date: Former Proud Boys leader Henry “Enrique” Tarrio was sentenced to 22 years in prison for his role in a plot to stop the transfer of power on Jan. 6, and former Oath Keepers leader Elmer “Stewart” Rhodes was sentenced to 18 years.

Both men were convicted by juries of other offenses tied to Jan. 6, but not assault. If Trump decides to pardon rioters without assault convictions, the fact that neither Tarrio or Rhodes were charged with using physical violence that day — even though their plans relied on violence to achieve their goals — may end up being all the president-elect needs to absolve the extremist group leaders and let them out of prison.

Ahead of Trump’s inauguration in January, Frank Bowman, a former federal prosecutor at the Justice Department and current professor at the University of Michigan School of Law, spoke to HuffPost about the prospective Jan. 6 pardons.

Is there anything or anyone who can stop Trump from issuing pardons for Jan. 6 rioters?

Nope. There’s not a darn thing anybody can do. There are some constraints on what a president can pardon. For example, presidents can’t pardon state offenses or offenses that haven’t yet occurred and things like that. But in these instances, these would all be events that have occurred and, in many cases, there are already convictions.

So, if a pardon is granted to someone who has been charged but has not yet faced trial, their entire case is effectively wiped away? What if they are mid-trial when Trump issues a pardon?

In either of those instances, the president is at liberty to pardon people who have been convicted, who have been charged but not convicted, and indeed, he can pardon people who have committed offenses in the past but haven’t been charged with anything as of yet. The other thing a president can do is issue a variety of kinds of clemency that the Constitution says he can issue around pardons and reprieves. A reprieve is simply a delay in the imposition of a sentence, but the word “pardon” has been construed to mean both complete pardon — wiping everything aside, the conviction and punishment — or the president can issue a commutation.

Trump could say, “Well, I’m not giving you a complete pardon but commuting your sentence to time served.” That’s what Trump did with Roger Stone. He’s not unfamiliar with that approach. If the case is pending, essentially what the person pardoned does is: They get a copy of the pardon warrant, they take it to court and say they are pleading the pardon issued by the president and they move to dismiss. The court can review it and if it covers offenses being charged or already sentenced, the court can say, yep, that’s it, you’re pardoned. When Hunter Biden was pardoned, the district court judge got cranky about it and said things that, in my view, he ought not to have since it’s not his business to. But be that as it may, once a pardon warrant is issued and appropriately presented, then that’s the end of the case.

If Trump issues a blanket pardon, what is the net effect you believe that would have on the American public’s perception of justice?

The answer to that question turns on the era in which we find ourselves. In another era, when there was not the kind of division and siloing of people’s understanding of the world and different media streams, I think a president issuing lots and lots of pardons to people who assaulted the Capitol, hurt officers — the response would be quite negative. And, of course, what makes this prospective set of potential pardons so unprecedented is the fact that he’s pardoning people who were essentially his co-conspirators in crime. That’s never happened.

Pardons following various kinds of rebellions, insurrections, domestic disturbances, civil wars and foreign wars are common, though. Pardons started with the Whiskey Rebellion: George Washington issued individual pardons. James Madison issued pardons to Barataria pirates operating under command of the Lafitte Brothers who helped Andrew Jackson at the Battle of New Orleans. During the Civil War and Reconstruction Period, there were thousands of pardons issued to former confederates, both in general amnesties and specific cases. The Mormons were pardoned on two different occasions, before the Civil War and afterwards. But in none of those cases was there even the slightest suggestion that the people being pardoned are people who had committed crimes in concert with the pardoning president.

In the normal prior era of American history, this would be thought of as unspeakably outrageous. But, of course, Trump got reelected despite the fact that every sentient human being in the country recognized that he tried to overturn the election and that the people he’s about to pardon are the people he sicced on the Capitol.

The problem is that there is a segment of electorate that either A, doesn’t care, or B, has the deluded view that what happened on Jan. 6 was not a riot or insurrection but some sort of legitimate political protest against a corrupted election. And if you have, apparently, at least, 49-and-a-fraction percent of the American electorate who either thinks that Trump was done wrong by or that these patriots are so ignorant or otherwise unconnected to public life that they just don’t care, well, there you are. The American public gave Trump the figurative permission to do what he’s about to do. He didn’t hide the fact that he was very likely to issue pardons to these people; he said it repeatedly during the course of his election campaign. I think it’s unspeakably scandalous and a terrible commentary on the state of our politics. I think it’s a bad harbinger of things likely to come. But, you know, nearly 50% of the voting population seems to think it’s just dandy.

And Congress is effectively helpless to stop Trump from issuing pardons?

There are only two potential legal constraints or constitutional constraints on misuses of pardons. One of them is impeachment. You can certainly be impeached for misusing pardons, several of the Framers said so in no uncertain terms back at the time of the founding. I would have said a few months ago, there are a lot of types of pardons or circumstances that the president could issue that would be crimes. For example, if you were to say, “Give me $1,000 and I’ll pardon you,” that’s a bribe under any ordinary understanding of how the law works.

But now you have a Supreme Court that said a few months ago: Pardoning is a core power of the president and the exercise of which he has absolutely immunity over. We know that Donald Trump is not going to get impeached for anything because the Republican Party is far too cowardly to stand up to him. They already proved that in February 2021. And I think it quite likely that had a set of pardons like this been attempted in the past, there would be a serious movement on part of people in Congress to impeach the president that did it and it would be entirely constitutional to do that. Is that gonna happen? Of course not. Not a chance in a million.

What does history show us about how sedition or treachery in particular is treated when it comes to pardons?

It’s perfectly acceptable under the Constitution for the president to pardon former insurrectionaries. The framers at the constitutional convention, later at the ratifying conventions, discussed quite a lot whether the president should be able to pardon treason. They asked the question of what to do when people the president is extending pardons to are his co-conspirators in some sort of treasonous enterprise, too. They knew that would be really bad.

The framers, [Alexander] Hamilton, each had something to say about this in the Federalist Papers and others had something to say about it at ratifying conventions. But it was waved off because, they believed, in cases of insurrection and so forth, it makes sense for the president to have the opportunity to pardon people to perhaps reconcile the insurrectionists, prevent a real outbreak of violence or reconcile the country. The Framers thought about, in essence, the precise problem that we’ve got or one very close to it and decided, for better and worse, they were not going to exclude even treason from the list of pardonable offenses.

Bottom line: How bad would blanket pardons be? Does it go toward this idea of “reconciling” after Jan. 6?

Bottom line: Do I think this is really bad? Yeah, it’s essentially saying, henceforth, presidents who commit the gravest crimes against the Constitution, as long as they can stay in office, can use the power of the pardon to create a zone of impunity for all of their co-conspirators. I think that’s terrible. I think that’s deeply dangerous. But it’s where we are. We have a Republican-majority Congress that can’t even bestir itself to reject lunatics from high offices. Are they going to impeach Trump for something the population has given him permission to do? Of course not.

Let’s say he pardons seditious conspirators. And a year after being pardoned, these people get involved again in some kind of criminal activity, perhaps against the federal government or federal agencies — or let’s say it’s just more violent rioting. Nothing from the past influences charging decisions in the future, correct?

If the Proud Boys go out and start another riot, and there’s anyone with a spine left at the DOJ — and, as an old DOJ guy, that is terrifying to say — if there are people left willing to make that call, then, yeah they could be charged. But with Trump, it’s not impossible that they could essentially be pardoned for something criminal 30 seconds after they do it.

This interview was lightly edited and condensed for clarity.