With President Donald Trump’s pardoning and commuting the sentences of some 1,500 Jan. 6 defendants, former Justice Department officials are warning that he's sending the signal that he will pardon just about anyone who acts in his name.
On his first day in office, Trump signed an executive order pardoning supporters who stormed the U.S. Capitol just over four years ago, including those convicted of violent crimes and attacks against police officers that day. The pardon paves the way for the release of both violent offenders and the leaders of far-right groups, like Enrique Tarrio, a Proud Boys leader who was convicted of seditious conspiracy and released from prison Monday evening.
“This is a big one," Trump said while signing the pardons. "We hope they come out tonight, frankly."
In addition to the pardons, Trump also appointed a longtime GOP operative and "Stop the Steal" activist, Ed Martin, as the new interim U.S. attorney for Washington, D.C., and instructed the Justice Department to drop its 470 ongoing criminal cases against Jan. 6 defendants, raising serious questions about prosecutorial independence going forward.
Dennis Fan, a former Justice Department official who now teaches at Columbia University, told Salon that the sweeping pardon is most comparable to when President Andrew Johnson pardoned thousands of Confederate officials in 1866.
“The pardon power just as a historical power has often been exercised in political ways. When you pardon someone, you are inherently sending a message that some federal prosecution or that some crime was not so bad,” Fan said.
Fan noted that the Jan. 6 pardons are distinguished from other pardons because the Jan. 6 convicts were storming the Capitol with the goal of keeping Trump in power and overturning the results of the 2020 election. Fan said that Trump’s pardons send the signal that anyone working in pursuit of his political goals will be shielded from legal consequences.
“I don't think anything off the table. If you say, ‘I’m willing to push police officers and potentially hit them for my preferred political candidate to take office,’ even if that’s not what the outcome would be if the political process went through, you are sending the message that we don’t care about the consequences as long as we win,” Fan said.
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Fan went on to say that the pardons were a symptom of a shift among Republican officials with respect to their view of the Justice Department’s independence from the president.
“Big picture-wise, I think modern Republicans have a very different view of whether independence is a virtue," he said. “It’s one of these things that you would’ve asked maybe 20 years ago and they would have said, ‘Of course we want it to be independent.'"
Now, though, Fan added: “A lot of modern Republicans think that everything should be controlled by the president.” Fan noted that Justice Clarence Thomas, for example, had questioned the legality of Special Counsel Jack Smith.
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, told Salon that “these particular pardons are very concerning because of the nature of the offenses.
“A pardon is a show of mercy or forgiveness. People who used brute force to block Congress from certifying an election is political violence. The pardons send a message that as long as you are acting in the interests of the leader, political violence will be rewarded,” McQuade said.
McQuade said that the pardons were a “signal that Trump will not respect the criminal justice process” and that she “wonders whether DOJ will be willing to take positions that are not favored by Trump for fear that he will simply pardon the defendants anyway.”
“I think Biden's pardons of family members contribute to the perception that anything goes when it comes to pardons,” McQuade said. “While Biden's pardons may be troubling, they lack the wholesale disregard for political violence.”
Trump’s pardon will also have the most immediate material effects for those convicted of more serious crimes. While around half of those sentenced for a crime received prison time, many had either already served their time or were never sentenced. The pardons will have the biggest effect on those convicted of attacking Capitol police officers on Jan. 6, or militia members convicted of seditious conspiracy for their actions during or leading up to the attack on the Capitol.
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