A Sweeping January 6 Pardon Is an Attack on the Judiciary

Donald Trump’s repeated promise to consider pardons for the January 6 attackers is rightly seen as a craven political move, one that would both satiate his base and bolster the lie that the violent assault on the U.S. Capitol was a peaceful protest, and that those who have been charged and convicted are political prisoners or even “hostages.” But the promise is something graver too: Blanket pardons for the January 6 rioters would be a severe assault on the legitimacy of the criminal legal system, and in particular, on the role of the judiciary in that system.

Since January 6, 2021, the federal judges of the district court in Washington, D.C., have worked tirelessly to handle the nearly 1,600 criminal cases brought by the U.S. Department of Justice against those who allegedly attacked police officers, damaged and stole government property, caused members of Congress and the vice president of the United States to flee for their lives, and prevented the counting of the Electoral College ballots for more than six hours. The charged crimes have ranged from misdemeanors such as trespassing and disorderly conduct to serious felonies such as assaulting police, obstructing an official proceeding, and seditious conspiracy.

In every case, federal judges have worked to ensure that the defendant’s constitutional rights have been protected, including the rights to counsel, due process of law, and a jury trial. More than 1,000 of those charged have pleaded guilty. More than 250 have been found guilty after a trial. More than 800 have received sentences of incarceration, including some who were permitted to serve their sentences in home detention. Others have received sentences of probation. And through it all, the federal judges—whether appointed by a Republican president, a Democratic president, or former President Trump himself—have devoted themselves to carefully stewarding their cases in accordance with U.S. law.

[Tom Nichols: Trump’s dangerous January 6–pardon promise]

This has required thousands of hours of intense, difficult work. These judges have seen the evidence over and over again—seen their fellow Americans beat police with baseball bats and flagpoles, erect a gallows to hang the vice president, scale the walls of the Capitol and break through its windows, and brag about their insurrection on social media. They have sentenced some who are contrite and remorseful, and many others who remain defiant and unapologetic, amplifying the lies about January 6. Regardless of political affiliation, the judges have been uniform in condemning the acts of those convicted in their courtrooms.

As Royce C. Lamberth, a Republican-appointed judge with nearly 40 years on the bench, said at the sentencing of a January 6 defendant:

The Court cannot condone the shameless attempts by [the defendant] or anyone else to misinterpret or misrepresent what happened. It cannot condone the notion that those who broke the law on January 6 did nothing wrong, or that those duly convicted with all the safeguards of the United States Constitution, including a right to trial by jury in felony cases, are political prisoners or hostages.

So let me set the record straight, based on what I’ve learned presiding over many January 6 prosecutions, hearing from dozens of witnesses, watching hundreds of hours of video footage, and reading thousands of pages of evidence. On January 6, 2021, a mob of people invaded and occupied the United States Capitol, using force to interrupt the peaceful transfer of power mandated by the Constitution and our republican heritage …

Although the rioters failed in their ultimate goal, their actions nonetheless resulted in the deaths of multiple people, injury to over 140 members of law enforcement, and lasting trauma for our entire nation.  This was not patriotism; it was the antithesis of patriotism.  

These same judges, many of whom have been threatened with violence by supporters of the January 6 defendants, are now being asked by those appearing before them to postpone their proceedings, including their sentencings, because Donald Trump has promised to pardon them. For the most part, the judges have remained firm and pressed ahead. As Judge Reggie B. Walton, another Republican-appointed judge, noted, “The potential future exercise of the discretionary pardon power, an Executive Branch authority, is irrelevant to the Court’s obligation to carry out the legal responsibilities of the Judicial Branch.” Judge Carl J. Nichols, who was appointed by Trump, lamented that “blanket pardons for all January 6 defendants or anything close would be beyond frustrating and disappointing,” though he added that it wasn’t his “call” and agreed to reschedule a jury trial from late 2024 to after the inauguration.

[Paul Rosenzweig: Pardon Trump’s critics now]

The judicial branch is an integral part of our country’s criminal legal system. Federal judges in the nation’s district courts must ensure that every defendant before them is treated fairly and afforded the same constitutional rights. It is their responsibility to dispense justice not only to those with means, or to those in the president’s favor, but to those who are indigent and far out of favor. And in my experience as a former federal prosecutor for nearly 20 years, most defendants respect the judges who handle their case and accept the sentence imposed on them.  

Some defendants who have been sentenced by a federal judge later receive clemency—either a pardon or commutation of sentence—from the president. This act of mercy is sometimes granted to defendants who have accepted responsibility and changed their lives for the better while serving their sentence. Sometimes it is used when sentencing practices have changed dramatically, making sentences imposed long ago seem draconian. But it would be an all-out assault on our criminal legal system, and on the role of the judiciary in that system, to issue blanket pardons to the January 6 attackers regardless of the seriousness of their crimes, their remorse (or lack thereof), and their actions post–January 6. These federal judges deserve more respect than that.