One of the looming questions about the upcoming administration of President-elect Donald Trump is whether he will pardon all 1,500-plus people who have either been convicted or face charges related to the Jan. 6, 2021, U.S. Capitol riot.
Trump has indicated numerous times that he will pardon those convicted for their participation in the assault on the Capitol and consider pardoning every Jan. 6 defendant.
The chances that Trump will issue mass pardons for those involved in Jan. 6 likely increased over the weekend when President Joe Biden surprised many by issuing a wide-sweeping pardon to his son Hunter Biden for the federal gun and tax evasion charges he was facing.
In a 2023 CNN interview, Trump took a more nuanced stance, saying he may distinguish between certain Jan. 6 defendants.
"I am inclined to pardon many of them," Trump said. "I can't say for every single one because a couple of them, probably, they got out of control."
Campbell County Commissioner and former state legislator Scott Clem said he doesn’t expect Trump to pardon people who engaged in violent activities or committed property destruction to the Capitol on Jan. 6, a move he would support.
“If he does (pardon), I think he’s going to be thoughtful about it,” Clem said. “If people were responsible for being violent or for destruction of property, I doubt very seriously they will be pardoned. If they were just walking into the Capitol and walking around there, I bet he’ll pardon those folks.”
The Campbell County GOP invited Jan. 6 participant and New Mexico resident Couy Griffin to speak in Gillette last January about his experiences. Griffin, who jumped a stone wall outside the Capitol to get on the inauguration stage during Jan. 6, received 14 days in jail and a year of supervised release.
Election Changes Fate
After Trump won the election last month, many convicted Jan. 6 defendants expressed hope that he would pardon them, and some even requested sentencing delays as a result.
Lawyers for Enrique Tarrio, the former chairman of the Proud Boys who is serving 22 years in prison for his role in the Capitol attack, released a statement hinting that he also might seek a presidential pardon.
“Unless the president pardons everybody, he is going to get some significant blowback,” John Pierce, a pro-Trump attorney who has represented dozens of the Jan. 6 defendants, told CNN. “They are not a shy group of people.”
But a blanket pardon could upset some of Trump’s moderate Republican allies in Congress like GOP Sens. Tom Cotton and Markwayne Mullin, who have already said Trump shouldn’t pardon anyone who attacked police, according to CNN.
When asked by CNN if Trump is considering blanket pardons for all Jan. 6 defendants, Trump transition spokeswoman Karoline Leavitt issued a statement saying, “President Trump will make pardon decisions on a case-by-case basis.”
Historical Significance
If Trump does issue a pardon for everyone involved in Jan. 6, it would serve as a massive repudiation of the largest criminal investigation ever undertaken by the Justice Department and likely end all future investigations related to the matter.
Cheyenne resident Jack Speight, a former Wyoming Republican Party chairman and federal prosecutor, said he would be disappointed if blanket pardons are handed out.
“As a former federal prosecutor, I would hate to see anybody get a pat on the back or a free pass,” he said. “I have a hard time wrapping my brain around people participating in that Jan. 6 fiasco getting off. It’s just wrong.”
State Rep. Ken Chestek, D-Laramie, a University of Wyoming law professor, went further and said it would set a horrible legal precedent for America if pardons are given out, particularly for people who committed acts of violence against police officers that day.
“If he issues pardons to people who violently tried to overthrow the government at the Capitol after a free and fair election it will be the beginning of the erosion of the rule of law,” Chestek said. “What makes this country so great is the rule of law.”
How Do Pardons Work?
Many people likely don’t know that presidential pardons can come in many different forms and are more dynamic than just the power to forgive, as Biden doled out to his son.
A president can also reduce a sentence to a lesser penalty or expunge a record.
That’s what happened when former President Bill Clinton pardoned his half brother Roger Clinton for prior cocaine charges and Trump pardoned his son-in-law Jared Kushner’s father Charles Kushner for tax evasion and other crimes. Both Kushner and Clinton had already completed their prison terms by the time their pardons were issued.
A president can also pardon someone by releasing them early from prison without removing any of the convictions off their record.
The U.S. Department of Justice’s Office of the Pardon Attorney facilitates all clemency requests made to the president. This office can perform background checks and a full-scope analysis of the pardon request being made, but ultimately it’s the president’s call to make about what his pardon will be.
Article II, Section 2 of the Constitution gives the president a broad but limited power “to grant Reprieves and Pardons.” According to the U.S. Supreme Court, the pardon power is intended as a tool for justice and mercy and to further “the public welfare.”
The Pardon Clause of the Constitution makes it clear that pardons may only extend to “offenses against the United States,” which rules out the pardoning of state criminal offenses and civil liability, a power which is limited to state governors. It also says that they may not be granted for “cases of impeachment.”
Presidents have taken full advantage of the power to pardon over the years.
Trump issued numerous pardons during his first term in office. Former President Jimmy Carter issued a proclamation in 1977 pardoning everyone who evaded the draft during the Vietnam War. Biden also granted a blanket pardon in 2022 for people convicted of some federal marijuana offenses.
One nuance Trump may give to his Jan. 6 pardons is the fact that different federal judges have given different sentences for equitable crimes committed during the riot.
Last week, Bedford resident Douglas Harrington became the second Wyoming resident to be sentenced for his role in Jan. 6.
Harrington, 69, was sentenced by U.S. District Chief Judge James E. Boasberg to 40 months in prison, 24 months of supervised release, and was ordered to pay $2,000 in restitution. During the Jan. 6 riot, Harrington swung a flagpole with a metal ball attached to the end of it at police officers.
Leo Wolfson can be reached at leo@cowboystatedaily.com.
