How might Prez-Elect Trump operationalize his promise to pardon January 6 defendants?
Throughout his succesful campaign for a return to the Oval Office, Donald Trump spoke repeatedly about pardoning persons federally prosecuted for their behaviors at the Capital on January 6, 2021. With Trump now Preident-Elect, those promises are already leading to court filings in on-going Jan. 6 prosecutions as detailed in this new article:
Hours after most news outlets declared Donald Trump the winner of the presidential election, lawyers for January 6 defendants started to file motions, hoping to reap the benefits.
On Wednesday morning, an attorney for Christopher Carnell, who was found guilty of obstruction and other charges related to the riot on January 6, 2021, filed a motion to postpone a status hearing scheduled for Friday…. Carnell sought to move the hearing to December because he “is now awaiting further information from the Office of the President-elect regarding the timing and expected scope of clemency actions relevant to his case.”… A judge denied Carnell’s request on Wednesday….
An attorney for Jaimee Avery, another January 6 defendant, also filed a motion to delay a sentencing hearing scheduled for Friday. Avery’s lawyer is seeking to postpone it until after the presidential inauguration in January because of the “real possibility that the incoming Attorney General will dismiss Ms. Avery’s case or, at the very least, handle the case in a very different manner.” As such, it would be “fundamentally unfair” for Avery to be sentenced this week….
The Justice Department’s investigations and trials related to January 6 are ongoing. As of November, the Justice Department said that over 1,532 people had been charged, including 571 people who face felony charges of assaulting or impeding the police….
Trump has maintained that he would pardon many of the defendants, with the exception of those who are “evil and bad,” he told Time in April. Speaking to the National Association of Black Journalists in July, Trump said he would “absolutely” pardon rioters. “If they’re innocent, I would pardon them,” he said. “They were convicted by a very tough system.”
Obviously, it is not entirely clear just what Trump may mean by “innocent” and “evil and bad” as determinants of who he will and will not pardon among the Jan. 6 defendants once he gets back to the White House. But it does seem Trump is disinclined to issue a blanket pardon to all the Jan. 6 defendants. And, as detailed in this April 2024 NBC piece, the Trump campaign was eager to stress that Jan. 6 clemency would involve a “case-by-case” process:
Former President Donald Trump … said that, if elected, he’d “absolutely” consider pardoning every single one of the hundreds of criminals convicted in connection with the attack on the U.S. Capitol. But Trump’s campaign, in a statement to NBC News, said such pardons would be “on a case-by-case basis,” not the sort of blanket pardon Trump referred to in a recent interview with Time magazine….
“As President Trump has promised, he will pardon January 6th protestors who are wrongfully imprisoned by Crooked Joe Biden’s Justice Department, and those decisions will be determined on a case-by-case basis when he is back in the White House,” Karoline Leavitt, national press secretary for the Trump campaign, said.
I would guess that more than a few January 6 defendants and their supporters are already preparing clemency materials and that folks may already be trying to get them to Prez-Elect Trump and his team well before he takes office on January 20, 2025. That reality leads me to wonder just what kind of clemency process Trump and his team might adopt to review the huge universe of 1,500+ Jan. 6 defendants that may seek clemency.
Notably, Trump during his first term showed little interest in utilizing the traditional (and traditionally slow) Justice Department process for reviewing clemency applications. But he also only issued a few dozen clemency grants before his final year in office and many of those involve high-profile political cases. In his final year in his first Term (and especially once he was a lame duck), Trump ramped up his clemency grants, though finishing with still less than 250 total grants over four years. Carefully reviewing and making case-by-case clemency decisions for all the Jan. 6 defendants would be a massive undertaking that could easily take the Trump team years, and I have to think this work will not be the new administration’s top priority.
Notably, President Obama’s experiences with clemency in the final years of his seoncd term provides a possible template for this kind of work, though I doubt the Trump team is likely to follow this model. Working with the Justice Department, as detailed here, the Obama Administration created Clemency Project 2014 (CP14) which set forth a set of criteria for a kind of preferred clemency review at the Justice Department and in the White House. The administration of CP14 had all sorts of ups and down, but in the end it helped Prez Obama grant a record number of federal commutations (over 1700). Might Trump create some kind of CP25 to deal with the Jan. 6 cases?
Interesting times.