President-elect Donald Trump has promised to carry out a large-scale pardon operation when he takes office, which could gift clean slates to hundreds of defendants who participated in the Jan. 6, 2021, Capitol riot.
While Trump has been largely mum on the specifics of the plan, his transition team, lawyers involved with the Jan. 6 cases, and legal experts have signaled that they anticipate at least some of the 1,500 defendants who face charges receiving relief.
Trump spokeswoman Karoline Leavitt, the president-elect’s incoming White House press secretary, said in a statement provided to the Washington Examiner that Trump “will make pardon decisions on a case-by-case basis.”
Meanwhile, Trump himself has promised that a “large portion” of the defendants, whom he has described as “hostages,” will receive his clemency.
Conservative lawyer Andy McCarthy, a former federal prosecutor, told the Washington Examiner that he expects that the process will run through the Office of the Pardon Attorney at the Justice Department. However, he added, Trump’s attorney general could make “different arrangements.”
Trump will have unilateral clemency power when he takes office, but the DOJ’s pardon office typically vets pardon applications submitted by people who have been convicted of crimes before the president grants his clemency.
The president-elect has repeatedly made broad promises that he will grant pardons to many of the defendants, which would erase their convictions or guilty pleas and restore any civil rights they lost as a result of their crimes. Trump could also commute sentences of people who are still serving time in prison or instruct prosecutors to withdraw charges of those who have not yet made it to trial.
By the numbers
Of those who have faced charges, the DOJ has secured guilty pleas or convictions for about 1,229 defendants who breached the Capitol in protest of the 2020 election results.
Nearly 200 have pleaded guilty to assaulting police officers during the incident. A Senate report found that some officers suffered brain injuries, cracked ribs, and chemical burns. One officer lost an eye, while another was stabbed.
Dozens of defendants have also been charged with stealing or destroying government property.
The DOJ secured 10 convictions on rare seditious conspiracy charges, and those defendants, who are mostly members of the far-right Proud Boys and Oath Keepers groups, are all serving yearslong prison sentences.
Meanwhile, several hundred have admitted to misdemeanors that typically have involved mild trespassing violations.
What are the defendants’ lawyers saying?
Thomas Osborne, who was indicted this year on four disorderly conduct charges related to the riot, has asked the court to postpone his trial in anticipation of a pardon.
His attorney, Jeffrey Brown, wrote in the postponement request that he learned from a Trump official that clemency for his client is likely.
“The undersigned has spoken with a high member of the future Trump Administration and the future pardon of Thomas Osborne is almost a certainty,” Osborne’s attorney wrote.
The attorney argued that the DOJ took three years to charge his client and that the least the court could do was pause court proceedings for three months. Judge Amit Mehta, an Obama appointee, denied the request.
During the riot, Osborne grabbed a police officer’s baton after the officer used it to push him backward, according to court records. Prosecutors asked that Osborne be detained until his trial in part because they found in his home what they described as an “incredible” number of loaded guns, including rifles, a shotgun, a revolver, and several handguns. Mehta rejected the request and allowed Osborne to be released on personal recognizance.
Isabella Maria DeLuca, a Trump-supporting social media influencer, is an example of a defendant who immersed herself among the activists breaching the Capitol but was not violent, court records show.
Her attorney, Anthony Sabatini, told the Washington Examiner that she and every other defendant should see “zero” consequences for their actions on Jan. 6.
DeLuca was seen on camera with her hand on a table as people were pushing it out of a broken window of the Capitol building. She faces misdemeanor charges of theft of government property, disorderly conduct, and trespassing in a restricted area.
“The entire process, investigation and prosecutions, were premised on prejudice against the protesters’ ideological affinities,” Sabatini said. “Therefore, the only way to correct the entire situation is by wiping it away with pardons.”
Sabatini said he intends to seek dismissal of DeLuca’s case rather than a pardon because she is among those who have not yet gone to trial.
Like other attorneys, Sabatini is in a holding pattern while he awaits cues from the incoming Trump administration on how to seek relief for his clients. Bill Shipley, an attorney who has represented dozens of Jan. 6 defendants, told the Washington Examiner that he has instructed eager clients of his to have “a little bit of patience” while the process plays out.
Rachel Powell of Pennsylvania was sentenced to nearly five years in prison last year after she was found guilty of assaulting officers and taking an ice axe to a window of the Capitol. Powell’s three daughters recently told CNN that they were certain Trump would pardon her.
“He will keep to what he said,” one of the daughters said. “He will keep his word. He is going to pardon her.”
Powell herself agreed.
“I know he’s going to pardon me,” she said.
Who should receive a pardon?
McCarthy said he felt that people who “committed a crime of assault or property destruction” should not be pardoned. He said all pardons should be granted based on the circumstances of each case, rather than in “broad categories.”
“I would pardon or commute sentences of anyone who was only charged with nonviolent misdemeanors and who would ordinarily not be charged by DOJ,” McCarthy said, contending that the Biden administration was overzealous with its charges because it was “trying to run up the numbers to try to enhance the riot as a political issue.”
The resources the Justice Department, and specifically U.S. Attorney Matthew Graves’s office, has poured into charging people over the Jan. 6 riot has made it what Attorney General Merrick Garland once described as the “most wide-ranging investigation in history.”
The Government Accountability Office estimated last year that all costs related to the riot amounted to $2.7 billion. That figure included investigation and prosecution costs, as well as costs of damages, repairs, and security manpower incurred by the Capitol Police, the District of Columbia, and all federal agencies. The DOJ has also enlisted assistance from the 93 U.S. attorneys’ offices across the country to help in its prosecution efforts.
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Trump’s pardon plans could, in turn, be one of the most sweeping pardon initiatives in modern history, undoing four years’ worth of the DOJ’s investigative work and expensive court proceedings. One of the only pardon instances that was larger came from former President Jimmy Carter, who issued a blanket pardon to more than 200,000 people who were accused of evading the draft during the Vietnam War.
Graves’s office, which has been leading the prosecutions, declined to comment on Trump’s pardon plans.
