The Cost of Pardoning the Jan. 6th Defendants
Trump suggests he will
wipe away hundreds of convictions and end pending prosecutions.
Dec 18, 2024
IN HIS “PERSON OF THE YEAR” INTERVIEW
with Time magazine, Donald J. Trump reiterated his campaign promise to pardon
the Capitol rioters, claiming that “a vast majority of them should not be in
jail.” While federal authorities continue to make new arrests, there have
been upwards of 1,488 individuals charged across all fifty states and the
District of Columbia for offenses ranging from misdemeanors to assault and
seditious conspiracy. As of August 6, 2024, the Justice Department reported that there had been 894 individuals
who pleaded guilty to a variety of charges. Another 223 have been convicted in
trials. Some 562 have been sentenced to prison.
Among the defendants are individuals
caught on tape brandishing stun guns, flagpoles, fire extinguishers, bike racks, batons, a metal whip, office furniture, bear spray, a tomahawk ax, a hockey stick, knuckle gloves, a baseball bat, a pitchfork, pieces of lumber, crutches, and even an explosive device during the attack in
which approximately 140 police officers were assaulted.
If Trump pardons these individuals,
what will it mean pragmatically for them? What will it mean for the American
taxpayer? And what will it mean for justice?
Bear in mind that Trump would be
squarely within his constitutional authority if he pardons every last one of
them. Article II of the U.S. Constitution contains the pardon power, with its only textual
constraint being a ban on pardons for impeachments. By tradition, the
rationales for presidential pardons fall into three clusters: as a measure of
mercy for someone convicted on shaky evidence or sentenced to overly harsh
terms of incarceration or execution, as a political salve or “amnesty” to quell
nationwide division and unrest, or out of self-interest and corruption. All of
these are constitutional.
In Trump
v. United States, the Supreme Court last summer deemed the
pardon a “core” power, adding that the reasons for its exercise are beyond
reproach or even scrutiny. Still, although the law does not sort “good” pardons
from “bad” ones, logic, morality, and public policy do. A pardon to cover up
and immunize a president’s own possible wrongdoing—which is arguably what
happened when George H.W. Bush pardoned people convicted over the Iran–Contra scandal and when Trump pardoned cronies like Roger Stone and
Paul Manafort—should be roundly scorned. Pay-to-play pardons—the specter of
which got Bill Clinton in hot water when he pardoned the “fugitive financier” and mega tax evader Marc
Rich, whose wife donated $450,000 to the Clinton presidential
library—should likewise be condemned as utterly unacceptable. (Although Congress and the U.S. Attorney’s Office for the Southern District of New York investigated
the propriety of the Rich pardon, the notion of oversight for presidential
pardons is now utterly gone from public discourse and the law.1)
Pardons of violent offenders whose
profiles suggest they might go on to commit violent crimes deserve special
opprobrium. For example, Trump, in his final hours in office in 2021, commuted the life sentence of Jaime A.
Davidson, who had been convicted of murder in 1993 for his role in the death of
an undercover police officer in upstate New York. In 2024, Davidson was
convicted of assaulting his wife and sentenced to three months in prison. Many
of the January 6th insurrectionists fall into this category, which is a prime
reason why Trump should not pardon them: Releasing them will make the public
less safe.
IF TRUMP PARDONS THESE INDIVIDUALS,
the public will also wind up paying the price in other, less obvious, ways.
Consider the case of Joe Biggs, a leader of the Proud Boys, who in
August 2023 was sentenced in federal court in Florida to seventeen years for
his convictions by a jury on seditious conspiracy; conspiracy to obstruct an
official proceeding; obstruction of an official proceeding; conspiracy to use
force, intimidation or threats to prevent officers of the U.S. from discharging
their duties; interference with law enforcement during civil disorder; and
destruction of government property. U.S. District Judge Timothy Kelly enhanced
Biggs’s sentence for “terrorism” because he tore down a fence between police
and rioters, which the judge deemed a “deliberate, meaningful step” in the
chaos that day.
Biggs’s lawyer, Norm Pattis, has made clear that his client will seek a
Trump pardon. January 6th was merely a “riot gone bad,” Pattis claims, and
although “it was awkward, it was inconvenient, and it was sometimes violent,”
there was “no attempt to overthrow the government” so it “shouldn’t cost
anybody decades behind bars.” Biggs had sustained a head injury in Iraq and
later became a correspondent for Infowars. Pattis argued that his military
service should qualify him for a pardon because he “put his life on the line
for the American people” and his conviction has cost him his “disability
pension.” Said Pattis: “Regardless of what you say about January 6th, an
afternoon shouldn’t cost he and his family a pension.”
A pardon, unlike a judicial
exoneration, does not wipe out all evidence of a criminal
conviction. If a person is incarcerated, a full pardon—like a lesser
commutation—means they get out of jail. But it can also restore several rights and privileges that a felony
conviction could otherwise take away, possibly for life,
including:
- bans on doing
business with the federal government, including acting as a contractor;
- restrictions on
voting rights and jury rights;
- bans on
obtaining, receiving, transporting, or possessing any firearm or
ammunition;
- a ban on
enlisting in the federal armed forces;
- bans on
obtaining certain federal licenses (such as U.S. Customs and import-export
brokers);
- bans on holding
certain federal and state positions;
- potential
restrictions on other job prospects, such as labor organization posts, and
banking or insurance company positions;
- an increased
sentencing range if convicted of future crimes;
- restrictions on
travel;
- loss of
parental rights; and
- loss of certain
public benefits and housing.
So for those convicted of January 6th
crimes—whom Trump has called “hostages” and “patriots” for having been
prosecuted over what was “a day of love”—a pardon could transform their
lives, restoring freedom and a host of benefits.
Meanwhile, taxpayers will in some
cases go from paying for these individuals’ prison time to paying for their
pensions. And one shudders to think what some of these Trump
loyalists—dangerous on January 6th and now perhaps emboldened and more
radicalized—might get up to when they’re no longer behind bars.
Although the Supreme Court majority
in Trump v. U.S. disputed Justice Amy Coney Barrett’s
suggestion in her concurring opinion that the ruling could “hamstring” an
attempt to prosecute a former president for bribery, practically speaking she
was probably correct.
