The J6 Pardon Process -- What Might We Expect?

Informed speculation at best, but I do know some people who know some people who have heard some stuff.

Social media/X is abuzz with questions and speculation about what the pardon process might be for persons convicted for their actions on January 6.  These questions were supercharged last week by a comment attributed to an unnamed “transition official” stating that all convictions will be reviewed on a case-by-case basis, throwing a wet blanket on the expectations/demands by some that pardons be given to everyone convicted of any crime.  The transition official’s comment leaves open the possibility that some who have been convicted – or maybe even some who have not yet had a trial – might not receive any relief from a Trump Justice Department beginning on January 20 or thereafter. 

Because I’m releasing this article to the public, it is likely that many who read it will not know anything about me or my connection to the January 6 cases.  So, as a foundation to those readers who might wonder why there is a basis for some “informed speculation” on my part, here is how I have come to the views expressed herein.

After spending 21 years as a federal prosecutor in California and Hawaii, I went into private practice in 2013 and my work has been almost exclusively in federal criminal defense. Beginning in October 2021 I began representing defendants charged in connection with the events of January 6, and as of now have had in the neighborhood of 90 clients who faced Jan 6 charges. I have defended clients in 10 trials, three of which were jury trials — my 11th trial begins in 9 days, and my 12th trial is set to being on January 6, 2025, the fourth anniversary of the January 6, 2021, protest at the Capitol.

Given that something like 99.9% of all defendants have been convicted of at least one crime — fact not hyperbole — the results I’ve obtained for my clients have been the best obtained by any defense attorney. That is also a fact. In this area of practice just about everyone is unhappy to one degree or another, and some are always looking for someone else to blame, so there are a few disgruntled detractors out there who will blame their attorney — it comes with the territory.

But I get about 6-8 calls a week for clients whose cases are concluded wanting to know how I think the pardon process might work once it is put in place. I will be handling pardon applications for all of my clients who have been convicted — and I will be taking on any other Jan 6 defendants who want to seek a pardon but do not want to use their prior counsel in order to do so. Look for more information about that on X.

Here is the basic answer I have given all who have asked:

1. President-Elect Trump, based on what I have heard him say and what has been reported, has promised relief to those convicted, but that comment has usually — not always — been coupled with a condition that it applies to “non-violent” offenders. The comment by the transition official that this will be based on a “case-by-case” review has been met by demands by some in the J6 community that pardons be issued to all regardless of circumstances or their conduct.

2. But even a case-by-case process is likely to not be nearly as complicated as some might fear. If there is a dividing line — in the initial analysis — between “violent” and “non-violent” offenders, much of that work has already been done by the Biden DOJ in the manner in which they have charged the cases for nearly 4 years. Anyone charged with and then convicted of the basic four misdemeanors is, by virtue of the fact, a “non-violent” offender. A “case-by-case” review would simply put every such case in a stack to be pardoned at the start. That stack is going be a significant majority of all cases by a large margin because somewhere around 1100-1200 Jan6 defendants fall into that category.

3. A second category of “non-violent” offenders is likely going to be any defendant whose only felony charge is a violation of 18 U.S.C. Sec. 231 — “civil disorder.” That crux of that offense is impeding or interfering with the efforts of the police to disperse the crowd and end the “riot.” Failing to leave when told to do so, or moving past a police line where one had been established are the two basic factual circumstances where this has been the felony charge employed by DOJ without other charges. If there was some form of physical encounter with the police, that has usually drawn a charge under 18 U.S.C. Sec. 111 — “assaulting, interfering, etc.” with law enforcement officers. The dividing line between the two charges which are almost otherwise identical is actual physical contact with the officers rather than simply making their job more difficult by failing to comply with their instructions. Because the Sec. 231 charge does not involve any violence directed at police, any Jan6 defendant convicted on that felony alone — and there are a few dozen in that category — would also be in the “non-violent” offender category entitled to a pardon.

4. A third category of “non-violent” offenders is likely going to be any defendant whose only felony conviction is a violation of 18 U.S.C. Sec. 1512 — the “obstructing Congress” charge that was undermined by the Supreme Court in Fischer v. United States. In the six months since Fischer was decided, the DOJ has not yet articulated a manner in which it can still apply that charge to Jan6 defendants under the narrower application allowed by the Supreme Court in Fischer. The Jan6 defendants with appeals pending of their 1512 convictions have been getting their cases sent back to the trial court for further proceedings in light of Fischer. That generally involves a new sentencing hearings without the Sec. 1512 count being included. The problem is more complicated for defendants who pled guilty to a Sec. 1512 charge and waived their right to appeal because they have no active case pending that can be sent back to the trial court. The problem for those defendants would be solved by pardons recognizing the 1512 charge should never have been brought in the first instance. The 1512 charge does not involve violent conduct, so in cases where that charge is the only felony for which a defendant was convicted, they should go in the pardon stack along with the Sec. 231 convictions.

5. That leaves only two broad categories of felony convictions — 18 U.S.C. Sec. 111(a) and (b), and 18 U.S.C. 1361 — “assaulting, interfering, etc.” with federal officers, and destruction of government property, respectively. These are the convictions where a case-by-case analysis of the Jan6 defendant’s actions will likely to necessary and consequential. My guess — I’ve made no effort to dig through the stats — is that those two categories are less than 400 total defendants. The problem with including them in a “blanket pardon” is that video evidence exists of every action taken by each such defendant, and that video will become political fodder in future elections. I have clients in this category and I will be advocating aggressively on their behalf for pardons, but those arguments will be individualized as to each defendant, will focus on ALL the video evidence of their conduct on Jan. 6, the failure of DOJ to prosecute other protesters on other similar circumstances in the past, and the difference in the kinds of sentences imposed in other “protest” situations and the sentences given in Jan6 cases. These are arguments we weren’t allowed to make in their defense, but they are arguments that should be considered in evaluating whether or not they should be pardoned.

I understand better than just about everyone reading this the way the deck was stacked against Jan6 defendants who endured the federal criminal judicial process in the District of Columbia. That makes me sympathetic to the views expressed by many online — including a few of my clients — that the unfairness of the process is a ground upon which blanket pardons should be issued to all regardless of the nature of the conviction.

But the claims made by some who advocate this view include allegations about “facts” that I’ve never seen evidence to support. These include some of the most specious “conspiracy theories” about the events of the day for which I’ve just never seen any evidence — and I’ve seen just about all the evidence. Maybe a Trump DOJ investigation will result in the disclosure of something I have not yet seen. But what I do know is that many of the most “popular” social media conspiracies have actual factual evidence that run contrary to them — facts that the proponents of these conspiracies simply ignore.

I can’t endorse those conspiracies by using them as a basis to justify claiming that everyone should get a pardon based on such conspiracies.

For nearly three years while advocating for my clients in sentencing hearings I’ve made the same observation about the events of the day and the participation by various broadly-described components of the crowd that went to the Capitol on January 6, 2021. Most had been to the rally at the Ellipse, but not all. A huge majority — above 90% would be my guess — came to D.C. on January 6 to hear Pres. Trump speak at the rally, without any intention or expectation of going to the Capitol when the rally ended. I’ve heard that explanation dozens of times over the past 3 years — going to the Rally was the reason for coming to D.C., but going to Capitol was unplanned and spontaneous.

But that doesn’t account for everyone.

In considering the composition of those who went to the Capitol, I’ve argued that the vast majority of the crowd — in the tens of thousands — that went to the Capitol were those who simply intended to be part of the protest and did nothing more than watch what took place between 1:00 pm and 6:00 pm. A small part of this group moved forward and went inside the Capitol but did nothing more than walk around for some period of time before exiting. This is the group of Jan6 defendants who have faced only the four misdemeanor offenses — approximately 1100-1200 Jan6 defendants.

Second, a segment of the crowd who went to the Capitol to do more than simply watch — they went to loudly and raucously voice their objections to the certification of the Electoral College vote, hoping the GOP members of Congress would be convinced to vote to delay the certification — but with no pre-conceived intention to do more than get the attention of Congress. They pushed their way to the front and were more demonstrative in their conduct. In this group are Jan6 protesters who were — for the most part — drawn into clashes with law enforcement, with the clashes coming in response to ill-advised efforts by law enforcement to disperse the crowd with measures such as flash-bangs, tear gas, and pepper spray.

Third, a much smaller group of individuals who came to D.C looking for a fight, expecting ANTIFA and other anti-Trump extremist groups to engage in violent clashes with the pro-Trump protesters. Those extremist groups had attacked Trump protesters at the “Million MAGA March” on November 14, 2020, and the “Jericho Rally” on December 12, 2020 — both in D.C. Those attacks were topics of extensive communications online, particularly among members of the Proud Boys — attacked on December 12 — and “Three Percenters.” Not all members of the Proud Boys and/or Three Percenters came looking for a fight, but some certainly did — for some of the Proud Boys it was “pay back” for serious injuries suffered by members of the Proud Boys at the hands of left-wing extremists on December 12.

But there were some in this third group who were simply “bad guys” for whom “finding trouble” was the attraction. They went looking for a fight because the prospect of a fight seemed like a “good time.” Many in this small group had prior criminal records and were no strangers to the inside of a jail/prison cell. I know, more than one was a client.

Much of the suspicion and criticism of protesters stems from the superficial reaction to attire and gear that many brought with them — body armor, helmets, goggles, pepper spray, bear spray, etc. But most who have that view do not realize the degree to which online commentary about the violence on November 4 and December 12 motivated most of these protesters to come equipped in that manner — and, notably, without bringing firearms to D.C. The attire and equipment were meant to be protective and for defensive purposes — not with respect to the police but against the attacks expected from left wing extremist groups. This FACT has been uniformly ignored in the DOJ narrative, but will be pressed by me on behalf of my clients who came with such paraphenalia.

The real travesty is that many defendants in the second group who will likely be subjected to case-by-case reviews have no prior criminal record and many having military or law enforcement backgrounds. They have served their country and never had any involvement with the criminal justice system. I have many clients who were changed with Sec. 111 violations who fit that description. Emotions were high and most were drawn into their confrontations with law enforcement on Jan. 6 by what they saw happening around them — they reacted to it. They did not come to the Capitol with an intent to fight anyone, including law enforcement.

But these defendants in the second group are lumped in by the DOJ “narrative” with those in the third group — the small number who came to the D.C. looking for a fight, and if the Capitol was where they might find a fight then that is where they went. These are going to be the cases that deserve to get the most scrutiny on review, but that is also going to bring a greater level of scrutiny on many of those Jan6 defendants who belong in the second group. This could lead to reducing their chances at a pardon because of a view that their conduct was similar to the conduct of the “bad guys” who went looking for a fight.

One thing I know from having handled the number of cases I’ve handled is that the DOJ prosecutors and FBI Agents have commonly — more common that would be an acceptable error rate — mischaracterized and exaggerated the nature of the conduct by the Jan6 defendants that is reflected on video. Consistently — and I mean in every case I have handled — the DOJ has offered the most egregious characterization of what is shown on the evidence, up to the point of being a deliberate mischaracterization. This is passed off as “zealous advocacy” — fine in normal litigation but not when the prosecutor’s ethical obligation is to “seek to do justice.”

In order to receive a plea offer, Jan6 defendants have been forced to accept as truthful the mischaracterizations presented by the DOJ, with the factual statements that come with the plea offer have been made on a “take it or leave it basis.” With 99.9% of trials ending in guilty verdicts, Jan 6 defendants wanting to realize the benefits of a plea agreement have had no leverage to have their views be reflected in the factual basis reviewed by the Judge. This has many consequences, but that is a subject for another day.

Many of the Jan6 defendants who will undergo a case-by-case review will benefit because they will be able to advocate for their characterization of what the video evidence shows. This is what I will be doing on behalf of my clients — getting to argue for the first time in most instances what the video shows, or does not show, without having to be handicapped by a signed factual statement that was obtained by DOJ at the “barrel of gun.”

That said — and acknowledging that I know there are legitimate complaints about having to undergo the criminal justice process in the District of Columbia under the circumstances — there are some Jan 6 defendants who were convicted of engaging in criminal acts that would have been prosecuted as crimes against law enforcement no matter where they were committed and no matter on what day they were committed.

That might be unpopular for some to read but it is the truth.

I will be announcing in a few days a pardon initiative that I am going to offer free of charge to any Jan6 defendant who wants to seek a pardon but does not want to employ the attorney who handled their case.

It might be that no submission of materials will be required by the Trump Administration in the pardon process it decides to undertake. But given the reference to a “case-by-case” analysis for some/all cases, I will be prepared to make those filings on behalf of my clients who want to seek pardons. As mentioned above, I’m going to offer this same service to other Jan6 defendants as well.

More details to follow shortly.