History Cautions Against Pardons for Jan. 6 Rioters

Donald Trump will soon return to the White House, raising the question of whether he will pardon the Jan. 6 rioters whom he has spent months defending. Calling Jan, 6 a “Day of Love” and labeling rioters “hostages” and “political prisoners,” Trump has likened his supporters to revolutionaries who were simply fighting for fair elections and to restore American democracy. Spinning this narrative has allowed Trump to successfully weave the idea that he and the 1,563 indicted Jan. 6 rioters are martyrs, persecuted by President Joe Biden’s Administration.

This rhetorical strategy is the exact same one deployed by the defendants in the Ku Klux Klan Trials of 1871-1872. They, too, claimed to be hostages, following a suspension of the writ of habeas corpus, and argued falsely that the Klan was peacefully supporting post-Civil War Reconstruction efforts to restore democracy after a fraudulent 1870 election in South Carolina. 

The Klan distorted the use of undercover operatives and informants, much as some Trump supporters have over Jan. 6. While the tactic didn’t work in the short term, eventually the Klan won the larger battle after Presidents Ulysses S. Grant and Rutherford B. Hayes tried to compromise. The result was a violent social order that deprived millions of Black Southerners of their rights for a century.

In December 1865, a group of Confederate veterans founded the Ku Klux Klan to restore and protect the political, social, and economic interests of white people. Confederate General Nathan Bedford Forrest, considered a military genius and highly respected in the South, served as the Klan’s first Grand Wizard. The new group brought together bands of white vigilantes who had massacred and maimed African Americans since the end of the Civil War. 

Support for the Klan was widespread, especially in South Carolina.

To combat the group’s violent influence, especially over elections, Congress passed the Enforcement Act of 1870, making election interference on the basis of race a federal crime. This law supported the 14th and 15th Amendments, which were designed to ensure the right of African American men to vote.

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That October, South Carolina held its first election under these new laws. Thousands of African American men voted, and for the first time in history Black Republicans secured three of the state’s four congressional seats. 

The majority of white South Carolinians, however, rejected this historic result. They claimed the new Reconstruction government was counterfeit because they despised the federal government’s assertion that African Americans, who had so recently been enslaved, were now equal citizens with the right to vote. When Republican governor Robert K. Scott, considered a phony carpetbagger by white South Carolinians, organized African American militiamen and allowed them to bear arms, this further heightened tensions. 

The Klan emerged as the voice of the disgruntled white South Carolinians, generating recruits from across class lines with the new members united in their belief that South Carolina’s legacy was under attack. The group embarked on an unprecedented wave of terror that included assaults, lynchings, and rapes predominantly against African Americans, but also against white people accused of being sympathetic to the 1870 election results and federal Reconstruction policies. The violence forced African Americans in the northern part of the state to flee en masse to the southern low country where they had greater numbers, as well to neighboring states. Between the October 1870 election and July 1871, in one South Carolina county alone, the Klan killed at least four people and assaulted, raped, or maimed some 200 more.

Newspapers quickly began reporting on the Klan’s violence and the situation escalated fears in the North of a widespread Confederate resurgence. Congress reacted by launching investigations into the Klan and passing the Ku Klux Klan Act in February 1871. This law explicitly prosecuted seditious activity, insurrection, and the use of violence or intimidation to violate federal law, such as the newly ratified constitutional amendments.

In October 1871, Grant declared parts of South Carolina to be in active rebellion against the federal government, suspended the writ of habeas corpus, and deployed the army to help apprehend the Klan. Grant’s actions marked the first time the federal government had declared an organized group in violation of sedition statutes since the beginning of the Civil War. U.S. soldiers quickly imprisoned over 600 men in connection with charges of conspiracy to subvert the Enforcement Act and for violations of the Klan Act.

The ensuing trials dominated headlines throughout the country. Southerners and northerners alike anxiously waited for updates amid fears that the trials could spark a second Civil War. 

By December 1871, the number of detainees in South Carolina had doubled and prosecutors boasted about having secured 49 guilty pleas. Klan lawyers, however, falsely claimed the federal government was hunting and persecuting innocent men. White South Carolinians praised the Klansmen as martyrs of the former Confederacy. 

Things shifted in 1872. The zest of federal prosecutors to punish violent Klansmen faded. They were worn down by death threats, repeated local sabotage of their cases, and congressional complaints over the high financial cost of their efforts. They discontinued prosecution in at least 1,188 cases. In 1873, Attorney General George H. Williams convinced Grant that they had made their point, and that further action would be both costly and detrimental to the goal of reuniting the Union. The extended presence of troops risked looking like federal overreach into state affairs.

Grant was unwilling to withdraw troops and let Klansmen impede the right to vote and wantonly violate the law. But he compromised by issuing pardons for those sentenced in the Klan trials and clemency for those not yet tried, as an act of good will.

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The continued presence of troops ensured that African American men could vote without facing violence in 1872 and 1874 and provided a show of federal force to any former Confederate state that would dare to challenge the delicate Union. 

But by 1876, the Klan was determined to upend federal influence in South Carolina and waged a massive assault to interfere with that year’s election. The group instigated a series of “race riots” where bands of white people roamed the streets assaulting and killing African Americans at random in public spaces. Their threats and intimidation worked, and Democrat Wade Hampton, the Klan’s preferred gubernatorial candidate, won by a little over 1,000 votes.

Because of the violence, however, Republicans refused to concede and inaugurated their candidate as well. The contested election, the presence of federal troops, and continual Klan violence threw South Carolina into chaos, which confronted President Hayes when he entered office in 1877. He agreed to withdraw federal troops from South Carolina in exchange for long-term Democratic support. Similar deals in other states essentially signaled the end of Reconstruction. 

The dwindling military presence in South Carolina enabled the Klan to finally triumph. With no federal troops protecting the state Capitol, the Klan and Democratic officials initiated a riot that allowed them to take control of the building, establish rule, and oust the Republican party. For the next century, South Carolina, along with other Southern states, would enact and violently protect the segregationist Jim Crow order.

The Ku Klux Klan Trials have much in common with the Jan. 6, 2021, insurrection and the ensuing wave of prosecutions and trials. Both moments featured far-right groups leading or taking part in violent riots that attempted to overthrow a newly installed government because of what they falsely claimed was a fraudulent election. In both cases, federal prosecutors used the Klan Act to attempt to hold accountable those responsible.

As in the 1870s, scores of federal prosecutions have taken place over the last four years. Several hundred Jan. 6 defendants have pleaded guilty to federal charges, and others have been convicted after trials. There is no evidence that politics played any role in their convictions. Yet, Trump and his supporters have labeled those incarcerated after convictions “political prisoners” and “hostages.”

Now Trump will soon be able to pardon them.

If he does so, the Ku Klux Klan Trials and their aftermath suggest that it would signal that threats to free and fair elections will be tolerated in America. When President Grant pardoned those convicted in the Klan trials  in 1873 and granted clemency to anyone else involved, he arguably emboldened the Klan, which understood that national Republicans wouldn’t remain steadfast in the fight to prevent violence and safeguard the right to vote. 

If Trump sends a similar signal by pardoning the Jan. 6 defendants, especially the Oath Keepers and Proud Boys leaders convicted of the most serious crimes, it too will send the message that violence is an acceptable political tool for overcoming disliked election results and imposing one’s views on the rest of America.

Brittany Friedman is an assistant professor of sociology at the University of Southern California and Affiliated Scholar of the American Bar Foundation. The author of Carceral Apartheid: How Lies and White Supremacists Run Our Prisons, her work has also appeared in the Washington Post, Associated Press, the Nation, and Jacobin Magazine.

Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here. Opinions expressed do not necessarily reflect the views of TIME editors.