Trump's Blanket Clemency for Capitol Rioters Excuses Political Violence
The president drew no distinction between people who merely entered the building and people who vandalized it or assaulted police officers.
President Donald Trump has called the riot that interrupted congressional ratification of Joe Biden's election four years ago "a heinous attack on the United States Capitol." And even when he began talking about pardoning some of the people who invaded the Capitol that day, he signaled that he would use his clemency power with care. "I am inclined to pardon many of them," he told CNN in 2023. "I can't say for every single one because a couple of them, probably, they got out of control." Just last week, J.D. Vance, now the vice president, elaborated on that point. "If you committed violence on that day," Vance said on Fox News, "obviously you shouldn't be pardoned."
Trump drew no such distinction on Monday, when he granted "a full, complete and unconditional pardon" to nearly 1,600 people who had been charged in connection with the Capitol riot. Trump also commuted the sentences of 14 people who were still serving time for riot-related crimes and instructed the Justice Department to drop pending cases. Those decisions, he claimed, were necessary to correct "a grave national injustice" and begin "a process of national reconciliation."
Such a reconciliation is impossible when the president is willing to excuse political violence as long as it is perpetrated by his supporters. Despite Trump's insistence that he expected people inspired by his stolen-election fantasy to do nothing but march to the Capitol "peacefully and patriotically," he has proven unwilling to draw that line in practice.
On the campaign trail, Trump repeatedly described January 6 defendants as "hostages" and "patriots" who had been unjustly targeted for political reasons. There was an element of truth to that characterization.
The Justice Department was determined to portray the riot as an "insurrection," even though it mainly involved spontaneous reactions by Trump supporters who got carried away by their outrage at a supposedly stolen election. The government's misleading narrative, which implied a level of intent and organization belied by the chaotic reality of the day's events, drove prosecutors to send a message in defense of democracy by doggedly tracking down and punishing Trump supporters who had entered the Capitol.
Most of those defendants were ultimately charged with misdemeanors such as demonstrating inside the Capitol, "disorderly or disruptive conduct," and entering or remaining in a restricted building without authorization. The sentences in such cases ranged from probation to short jail terms. But because defendants who insisted on their right to a trial could have been hit with more serious charges carrying much more severe penalties, such as obstructing an official proceeding, they were under a lot of pressure to plead guilty, as about 1,000 had done as of last November. And in light of the revelation that FBI informants who entered the Capitol faced no punishment at all, those defendants had reason to complain about selective prosecution.
Supporters of the Capitol riot defendants, in short, had some legitimate concerns. Dream.org, a progressive group that promotes criminal justice reform, notes that "the issues raised by the January 6th defendants, including decrepit jail conditions and overly aggressive prosecutions, are rampant in the American criminal justice system."
Trump's clemency, however, extends beyond people who were prosecuted merely for entering the Capitol without permission. As of November 6, the Justice Department reported, about 600 people had been charged with "assaulting, resisting, or impeding law enforcement agents or officers or obstructing those officers" during the riot. They included 169 defendants "charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer."
Trump was reluctant to intervene after the riot started—a fact that figured prominently in his second impeachment and in the scathing report published by the House select committee that investigated the incident. But he eventually urged his followers to "stay peaceful" and "please support our Capitol Police and Law Enforcement," who he said "are truly on the side of our Country." He reiterated that message 35 minutes later: "I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order—respect the Law and our great men and women in Blue. Thank you!"
Trump's avowed support for law enforcement and opposition to violence are hard to discern in his blanket clemency, which encompasses defendants who flouted both principles. They include, for example, Andrew Taake, who pleaded guilty to attacking police officers with bear spray and a "whip-like weapon"; Curtis Tate, who was accused of hitting police officers with a metal baton; and David Dempsey, who was convicted of engaging in "a sustained attack against multiple officers at the Capitol, using his hands, his feet, a flagpole, crutches, pepper spray and broken pieces of furniture."
In addition to his pardons, Trump commuted prison sentences to time served for 14 members of the Proud Boys and the Oath Keepers. Those defendants include former Proud Boys leader Enrique Tarrio, who received the longest sentence imposed in the January 6 cases: 22 years for seditious conspiracy, obstructing an official proceeding, conspiracy to prevent an officer from discharging his duties, obstruction of law enforcement during a civil disorder, and destruction of government property. They also include Oath Keepers founder Stewart Rhodes, who received the second-longest sentence: 18 years for seditious conspiracy, obstruction of an official proceeding, and tampering with records. There were puzzling aspects to both of those cases.
Tarrio was not even in Washington, D.C., at the time of the riot. But as Reason's Christian Britschgi noted, he did "post messages encouraging the riot on social media," and he "claimed credit for helping carry it out after the fact." Based on such evidence, prosecutors argued that Tarrio "conspir[ed] to oppose by force the lawful transfer of presidential power."
Unlike Tarrio, Rhodes was at the Capitol grounds that day, and during his trial a federal prosecutor described him as "a general surveying his troops on the battlefield." But unlike other members of his group, Rhodes did not enter the Capitol or participate in the violence or vandalism. Notably, the jury found him not guilty of conspiring to obstruct an official proceeding, a baffling verdict if he did in fact direct his followers to assault the Capitol.
The jury "made the confusing decision to acquit Mr. Rhodes of planning in advance to disrupt the certification of the election yet convict him of actually disrupting the certification process," The New York Times noted after the verdicts. "That suggested that the jurors may have believed that the violence at the Capitol on Jan. 6 erupted more or less spontaneously, as Mr. Rhodes has claimed."
In both cases, the judges were free to take into account acquitted conduct in settling on a sentence—a bizarre practice that contradicts basic notions of justice. And it seems strange that defendants who were not accused of directly participating in violence would receive longer sentences than defendants who were.
Tarrio was arrested on March 8, 2022, and he was denied bail, so his commuted sentence amounts to nearly three years. Rhodes was arrested on January 13, 2022, and he also was denied bail, so he served a bit longer. Trump evidently deemed those penalties adequate, although assuming that he gave the matter careful thought is probably giving him too much credit.
