January 6 defendants and attorneys have caught on to a shift in Donald Trump’s statements about a pardon in recent weeks: he’s teased the idea that he may issue a blanket pardon to non-violent offenders, while leaving the fate of the rest unclear.
“If they were non-violent, I think they’ve been greatly punished,” Trump told Time magazine last week, in one of a few similar statements. “I’m going to look if there’s some that really were out of control.”
This is to be taken with a big, shifting pile of salt. As one defense attorney to several January 6 defendants told TPM, Trump’s division between violent and non-violent offenders seems to be a matter of “this week.” Who knows what view he will take next week, or on January 20, the day of his inauguration. No defense attorney TPM spoke with had a solid idea of whether there was any organized process for submitting pardon applications. James Lee Bright, an attorney for Oath Keepers leader Stewart Rhodes, told TPM “I would give my left fucking nut” to speak with Trump about a pardon.
But that potential division between what sounds like a blanket pardon for “non-violent” January 6 offenders and a case-by-case approach to the rest has caught the attention of defense attorneys and January 6 defendants themselves, who are looking for something more concrete than Trump’s campaign-trail promises.
“IM COMING HOME!!!! THE JANUARY 6 POLITICAL PRISONERS ARE FINALLY COMING HOME!!!!” wrote January 6 defendant Jake Lang in a social media statement after Trump’s victory in the November election. Everyone involved in assaulting Congress on January 6 was, to some degree, involved in Trump’s plan to disrupt the certification, but Lang’s charges make the question of who gets a pardon, and whether Trump will embark on a separate process for violent offenders, more acute. He’s pleaded not guilty to allegations around assaulting police with a shield and bat, and is currently incarcerated awaiting trial.
William Shipley, an attorney for dozens of January 6 defendants, tried to hash out this question in a column at The Blaze published earlier this month. There, he argued that the cases could be divided into several categories, dividing it up by those who were only charged with misdemeanors, those who were charged with felonies but were not charged with a violent crime, and those charged with violent crimes.
To Sam Merchant, a professor of Constitutional law at the University of Oklahoma, it’s all a bit ridiculous.
“Part of that work’s already been done by Congress by specifying misdemeanors versus felonies,” Merchant remarked.
What it leaves unanswered is the question of arguably the most important and highest-profile defendants: those charged and convicted of seditious conspiracy.
That group includes Rhodes, several other Oath Keepers, and Proud Boys including leader Enrique Tarrio and top lieutenants of the group. Many of those charged with seditious conspiracy were not also charged with violent crimes; some were. The distinction, in other words, defies Trump’s categories.
Potential pardons for these defendants have already elicited dismay from members of the D.C. judiciary, who have spent the past several years plodding through hundreds of cases brought in connection with the insurrection.
“The notion that Stewart Rhodes could be absolved is frightening and ought to be frightening to anyone who cares about democracy in this country,” U.S. District Judge Amit Mehta for the District of Columbia said at a sentencing hearing for a different Oath Keeper this week.
Merchant, the law professor, emphasized that non-violent or violent doesn’t really capture or map onto the distinctions that the law makes. Seditious conspiracy, for example, is one of the most serious crimes on the books, though it’s a non-violent offense.
“Historically these have been seen as the most serious types of crimes,” Merchant said of treason and seditious conspiracy. “More serious than violent crimes, murders, things like that, because they go to the heart of the structure of government and whether government can function.”
Under the rubric that’s being discussed, seditious conspiracy offenders like Rhodes and Proud Boys leader Tarrio could be pardoned.
Nayib Hassan, an attorney for Tarrio, didn’t return TPM’s request for comment. CNN published a statement from Hassan in which he said that he and his client “look forward to what the future holds” from the new administration.
Bright, Rhodes’ attorney, jumped at the chance to argue to TPM for why his client would, according to Trump’s recent remarks, be deserving of a pardon.
“He’s an absolute nonviolent offender,” he said, adding that the only thing Rhodes was guilty of was “thought crime.”
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