The January 6 Pardons

Trump's most dangerous abuse of power yet

I didn’t want to believe he’d actually do it.

On his first day in office, President Trump pardoned nearly 1300 defendants convicted of crimes related to the January 6, 2021 Capitol riot. He granted a full, unconditional pardon to nearly all of them, including hundreds who were convicted of assault on law enforcement officers, obstruction of justice, and other felonies. He also ordered the Justice Department to drop about 300 pending January 6 prosecutions that have not yet made it to trial or sentencing.

Trump also commuted the sentences for 14 members of the far-right militia groups the Oath Keepers and Proud Boys (the group Trump infamously instructed to “stand back and stand by” during a 2020 debate). These defendants were convicted of the most serious crimes, including seditious conspiracy for violently attempting to overthrow the government, and had received some of the longest sentences. The commutations mean they will be released from prison, but they will remain convicted felons and their civil rights will not be restored.

Trump had talked during the campaign about pardoning the January 6 defendants, whom he claimed were “hostages” who had been treated unfairly. But he and his allies, including Vice President Vance, also discussed taking a case-by-case approach and suggested violent criminals should not be pardoned.

I thought Trump might end up pardoning only those convicted of misdemeanors, such as unlawful entry on the Capitol grounds, but not the violent felons. Because polling shows that the pardons are politically unpopular, even among Republicans, I even thought there was a chance he might walk away from his pardon promises altogether once he was elected.

But no. Trump has granted blanket clemency to everyone who took part in the riot and sought to overturn the election that he lost. There was no case-by-case consideration. And he made it a top priority, acting only a few hours after swearing, once again, to protect and defend the Constitution of the United States.

It’s another first for Trump: never before has a new president violated his oath of office so quickly and thoroughly.

Trump’s action brings an abrupt end to the largest criminal investigation in Justice Department history. It is an unprecedented slap in the face to the justice system and to the judges, prosecutors, and law enforcement agents who toiled over the last four years to see that those responsible for this assault on our country were brought to justice. It’s part of Trump’s ongoing effort to rewrite history and whitewash what happened on January 6.

And it’s Trump’s most dangerous abuse of power to date.

A Different Category

Trump took many controversial steps on his first day in office, issuing Executive Orders that seek to overturn many of the Biden administration’s programs and priorities. But these pardons are in a completely different category.

Changing policies is one thing. For the most part, they are not permanent. Many of Trump’s Executive Orders can and will be challenged in court; some lawsuits have already been filed. Others are largely symbolic and cannot readily be implemented or enforced. Some, such as purporting to end birthright citizenship (which is guaranteed by the 14th amendment) or taking back the Panama Canal, will generate a lot of breathless press coverage but almost certainly will not go anywhere. Other policies can be changed again when there is a new administration with different priorities.

Pardons are different. They can’t be undone or challenged in court. The presidential pardon power is absolute, which is one reason Trump is so fond of it. There are no checks and balances at work here. The criminals who committed a violent assault on our democracy are forever free of any legal responsibility for it – although not from moral responsibility. The damage Trump has done to the justice system here cannot be undone.

An Insult to Law Enforcement

Republicans piously portray themselves as the party of law and order that defends and supports law enforcement. Trump’s actions prove otherwise.

Hundreds of law enforcement officers were violently assaulted on January 6. About 140 were injured. Those men and women put their lives on the line to defend our country and the Members of Congress who were huddled in fear inside the Capitol. The rioters assaulted them with baseball bats, batons, flag poles, pepper spray, and other weapons, while shouting curses and racial epithets and threatening to kill them. Five officers died as a result of their injuries or later took their own lives, and others suffered permanent injuries.

With these pardons Trump profoundly dishonors their sacrifice. He has declared that the true patriots and heroes are not the law enforcement officers who defended the Capitol but those who attacked them. Trump summoned the mob to Washington and sent them to the Capitol, then watched the riot unfold for three hours while doing nothing to stop it. The rioters assaulted the officers while acting on Trump’s behalf. Now he has set them free.

In another Executive Order on Monday, Trump instructed his attorney general to pursue the death penalty for anyone convicted of killing a law enforcement officer. This presumably is meant to signal that the Trump administration will support those officers and deal harshly with those who harm them. But these pardons reveal the truth: you can assault a law enforcement officer on Trump’s behalf and you won’t be held criminally responsible at all — even if the officer later dies.

Hypocrisy is nothing new in Washington, but this takes it to a breathtaking new level. I can’t understand how any law enforcement officer, agency, or organization could support Trump after he pardoned those who assaulted their comrades on his behalf - although I have no doubt that many of them still will.

The Pending Prosecutions

Another aspect of Trump’s order will get less attention but also is extremely troubling. He ordered the Department of Justice to dismiss the several hundred January 6 prosecutions that are currently pending.

This is an unprecedented violation of the Justice Department’s historical independence. The president does not tell DOJ who to prosecute or not prosecute - for good and obvious reasons. But norms like the rule of law and independence of the Department of Justice mean nothing to Trump.

Assuming she is confirmed, this administration will include an attorney general, Pam Bondi, who has shown herself to be a Trump loyalist. She has echoed false claims that the 2020 election was stolen and refused to disavow those claims during her confirmation hearing. And the president clearly will have no qualms about directing his attorney general to pursue cases against political opponents or drop cases against his allies.

In the first Trump administration there were some guardrails in place. There were people in the Justice Department and White House who still recognized the importance of keeping politics out of criminal prosecution and who stood up to Trump. It’s not clear any such guardrails are going to exist during the second Trump administration, where loyalty to Trump appears to be required above all else. Bondi promised during her hearing that she would not pursue cases for political reasons, but with Trump in charge there is reason for concern.

Biden’s Preemptive Pardons

Trump supporters will no doubt respond to criticisms of the pardons by claiming President Biden also abused the pardon power. In his final days in office, Biden granted preemptive pardons to members of the House January 6 Committee, members of his own family, and others against whom Trump has promised to seek retribution. These people were not credibly accused of any crimes, much less charged or convicted. Biden pardoned them to head off any unjustified criminal cases against them, which could be financially and emotionally crippling even if they had no factual basis.

Such preemptive pardons are also unprecedented. I don’t like them, although I understand why Biden thought they were necessary. I fear we are starting down a road where every outgoing president grants blanket preemptive pardons to all members of his administration for any actions they took while in office – just to be safe. This would have been unthinkable and unnecessary in the pre-Trump era, but it’s where we are now.

But Biden’s preemptive pardons are not in the same moral or legal universe as Trump’s January 6 pardons. It should be obvious that a president protecting innocent people from threatened, unjust retribution is not the same as a president pardoning defendants who have been convicted for committing violent crimes on his behalf.

This “whataboutism” is part of the effort to gaslight the public by suggesting Trump is merely doing what all politicians do. That’s not remotely true. Just as a peaceful protest outside the Capitol is not equivalent to the January 6 riot, a preemptive pardon to protect an innocent person is not equivalent to the January 6 pardons of convicted criminals.

Trump’s Most Dangerous Abuse of Power

These pardons are morally wrong because they seek to erase responsibility for those who committed crimes on behalf of the president who granted them. But what they portend for the new administration is even more concerning.

There were reports during Trump’s first term of him telling aides they should just carry out questionable policies and, if they got into trouble, he would pardon them. Now he has sent a clear signal on day one of his new administration: if you commit crimes on my behalf, I’ve got your back.

When you combine that with the newly-minted presidential immunity created by the Supreme Court last summer, the prospects are grim. Trump, a man who has repeatedly shown he has no qualms about violating the law, knows he can commit crimes with impunity while in office if they can be characterized as official acts. And those who work for him can rest assured that if he orders them to commit crimes and they follow through, he will not hesitate to pardon them.

This is a blueprint for a lawless administration that knows it will not be held accountable for criminal acts. That would include, of course, crimes committed to interfere with the next presidential election to allow the party, if not Trump himself, to stay in power. Trump’s team came very close to overturning the 2020 election. No doubt they have learned some lessons and will not repeat the same mistakes.

These pardons are deeply troubling. What they signal about what may be coming in the next four years is even worse.