As Donald Trump prepares to return to the White House, politicians, legal observers and even sitting federal judges are expressing alarm about his stated intention to pardon or offer commutations to supporters who attacked the US Capitol on 6 January 2021 and were then convicted of crimes.
Clemency for those who sought to block certification of Joe Biden’s 2020 election victory “would undermine the US judiciary and criminal justice system and send a message to Americans that attacking US democratic institutions is appropriate and justifiable”, said a spokesperson for the Society for the Rule of Law.
The group of conservative attorneys, academics, and former federal officials and judges also quoted sitting judges Royce Lamberth (“We cannot condone the normalization of the January 6 US Capitol riot”) and Carl Nichols, a Trump appointee who said “blanket pardons for all January 6 defendants or anything close would be beyond frustrating and disappointing”.
In December, while sentencing a member of the Oath Keepers militia who pleaded guilty to seditious conspiracy, the most serious charge brought in relation to January 6, the US district court judge Amit Mehta said: “The notion that Stewart Rhodes [the group’s leader, jailed for 18 years on the same charge] could be absolved is frightening and ought to be frightening to anyone who cares about democracy in this country.”
In ongoing January 6 cases, the Department of Justice continues to argue that “general deterrence may be the most compelling reason to impose a sentence of incarceration”, as “future would-be rioters must be deterred”.
Once, Trump would have agreed. On 7 January 2021, as the Capitol lay strewn with smashed glass and smeared with blood and feces, teargas lingering as troops stood guard, Trump faced historic disgrace. In a video address, he said supporters he told to “fight like hell” the day before had “defiled the seat of American democracy”, adding: “To those who engaged in the acts of violence and destruction, you do not represent our country. And to those who broke the law, you will pay.”
Many have indeed paid. According to the Department of Justice, by 6 December 2024, 1,572 January 6 defendants had been federally charged. Of those, 996 pleaded guilty to felonies or misdemeanors and 215 were found guilty after contested trials. Just under 600 were charged with assaulting, resisting or impeding law enforcement; 174 were charged with entering a restricted area with a dangerous or deadly weapon; and 18 were charged with seditious conspiracy. Some rioters were convicted but did not serve jail time; 645 were convicted and jailed. The most substantial jail sentences, for violent crimes or seditious conspiracy, range from 10 to 22 years.
But Trump did not pay for inciting January 6, escaping conviction in his Senate impeachment trial, and has long since changed his tune. On the campaign trail, he made the supposedly unjust fate of the rioters a key part of his stump speech. It would be his “great honor”, he said in Washington last May, “to pardon the peaceful January 6 protesters, or as I often call them, the hostages … a group of people treated so harshly or unfairly”.
Elsewhere, he called January 6 prisoners “patriots” and even characterized the day they smashed their way into Congress – some looking for lawmakers to capture or kill in a riot linked to nine deaths – as “a day of love”. At rallies, and at his Florida home as his return to power draws near, Trump has played a recording of January 6 prisoners singing the national anthem.
Despite it all, some think Trump has signaled that not all such offenders should expect pardons or commutations. In December, he told NBC “there may be some exceptions”, perhaps if “somebody was radical, crazy”. Some think that means Trump may not pardon those convicted of more serious charges, from assaulting police officers to seditious conspiracy.
But Trump is notoriously difficult to parse. In the same interview, the president-elect rambled about the supposed presence among rioters of “antifa” – leftwing activists widely blamed by rightwingers but absent from January 6 legal proceedings – and other conspiracy theories. Asked if he would consider pardoning those who pleaded guilty to assaulting police, he chose to dodge the question.
“I’m going to look at everything,” Trump said. “We’re going to look at individual cases.”
His host asked: “Everyone?”
Trump said: “Yeah.”
Also in December, Time magazine asked Trump if he had “decided yet whether you’re going to pardon all of the January 6 defendants”.
Trump said: “Yes.”
Did he mean all of them?
“I’m going to do case-by-case,” Trump said, “and if they were non-violent, I think they’ve been greatly punished. And the answer is I will be doing that, yeah, I’m going to look if there’s some that really were out of control.”
Did Trump mean he would not pardon those convicted of violent acts, notably the 591 rioters then convicted of violence towards police officers?
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“Well, we’re going to look at each individual case,” Trump said, “and we’re going to do it very quickly, and it’s going to start in the first hour that I get into office. And a vast majority of them should not be in jail … They’ve suffered gravely.”
Under Biden, January 6 investigations continue. A spokesperson for the US Department of Justice said: “The investigation and prosecution of those responsible for the attack moves forward … especially those who assaulted law enforcement officers and engaged in disruptive or obstructive conduct that interfered with the peaceful transfer of power.”
The FBI, the spokesperson added, “currently has nine videos of suspects wanted for violent assaults on law enforcement agents or officers”, and is seeking public help to locate them.
The question is whether the FBI and justice department will drop such investigations once Trump returns to power. Kash Patel, nominated for FBI director, has openly vowed to prosecute Trump’s enemies – and voiced conspiracy theories about January 6. Trump’s nominee for attorney general, Pam Bondi, supported Trump’s lie about electoral fraud in 2020 but is not on record about January 6 convictions and sentences or the investigation itself. Trump claims he will not tell Bondi or Patel what to do.
Amid such uncertainty, the question of pardons remains to the fore. To many observers, concern over Trump’s use of pardons and commutations in relation to January 6 highlights serious problems with presidential power itself.
“I think this power of the pardon has become abused, not just by Trump but by Biden as well,” Leon Panetta told the Guardian.
The former White House chief of staff, CIA director and secretary of defense was referring to the current president’s decision to pardon his son Hunter Biden on multiple criminal charges – a move some said cleared the field for Trump to act with similar impunity – but also to speculation that Biden might preemptively pardon opponents of Trump now in danger of persecution, members of the House January 6 committee prominent among them.
Trump could conceivably use the pardon power appropriately in January 6 cases, Panetta said, if any individual could be shown to have been “falsely accused or had problems” with their prosecution.
“That needs to be taken into consideration,” Panetta said, even though there is “no question” that on January 6, “the mob was intent on making sure that the constitution was not followed when it came to the election. And that’s as close to an insurrection as this country has ever gotten.
“In other words, if Trump takes a selective approach, that’s one thing, but if it appears to be a more blanket approach that really forgives all those that were involved in January 6, I think that would really undermine respect for the constitution and respect, frankly, for law and order.”
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