On the first anniversary of the Jan. 6 riot, then-Attorney General Merrick Garland tried to convey the enormous scope of the law enforcement effort to bring the rioters to justice, calling it “one of the largest, most complex and most resource-intensive investigations in our history.”
With the stroke of a pen, President Donald Trump turned that effort to dust Monday with a blanket pardon of virtually every federal Jan. 6 defendant, save a few who still got their prison terms commuted.
“I don’t think that’s OK,” Jason Manning, who spent years as a line prosecutor working on Jan. 6 cases in Washington, told NBC News in an exclusive interview. “I find the pardons appalling.”
People in the Justice Department and legal scholars are calling the move an unprecedented and dangerous use of the pardon power that dealt a crushing blow not just to federal law enforcement, but also to the U.S. justice system. They say it makes a mockery of years of work by FBI agents, prosecutors and federal judges, some of whom Trump appointed, after an effort that included charges against 1,583 defendants, more than 1,000 guilty pleas and more than 200 convictions at trial. Some worry it signals open season for political violence — given that 608 of those charged were accused of assaulting, resisting or impeding law enforcement agents or officers — while others fret about the marker laid down for future presidents.
Manning said the pardons were an affront to the many police officers who were seriously injured that day.
“Have to think about what it means for those officers and their loved ones to receive this message that those assaults don’t matter, that attacking police officers like that is OK,” he said.
When Manning joined the effort to prosecute Jan. 6 offenders, he said, he thought of it in terms of protecting democracy. But after spending time with police officers who responded to the riot, “once I got a sense of what hell they lived through and how much they put up with to try to stand ground for this country, the cases really became about so much about vindicating them as victims,” he continued.
Trump said in his order granting the pardons that the sweeping move “ends a grave national injustice that has been perpetrated upon the American people over the last four years and begins a process of national reconciliation.”
Overall, Trump pardoned roughly 1,500 Jan. 6 defendants, including those convicted of brutal assaults on police. Only 14 riot organizers were not pardoned, but they still received commutations of lengthy prison sentences. Trump also ordered the dismissal of hundreds of cases that were still being prosecuted.
Alberto Gonzales, who was attorney general in President George W. Bush’s administration, told NBC News he would have urged Trump not to pardon violent offenders.
“Obviously anyone involved in a violent crime to me it’s somewhat disappointing that they would get a full pardon,” he said. “If you assault a police officer, that’s a very serious crime, and there ought to be some serious jail time associated with it. I don’t know how you can argue it’s a witch hunt when the prosecutions were successful.”
Gonzales, the dean of the Belmont University School of Law, also lamented the waste of resources.
“The department spent a lot of time and money prosecuting these cases. All that is for naught. Talk about government waste, right?” he said.
Inside the Justice Department, officials were still coming to grips with a presidential action that hit like a lightning bolt. Nearly everyone expected some Jan. 6 pardons, but Trump’s own vice president and nominee for attorney general said in recent days that people convicted of attacking law enforcement officials should not be treated favorably. Many Republican members of Congress — who faced danger during the attack — have said the same.
A senior career official at the Justice Department called the blanket pardons a “terrible injustice,” while another said it “signals a very strong green light to political violence” that “signals basically nothing that happened on Jan. 6 was wrong. It’s what I see as the campaign of personal retribution” on Trump’s part.
The first official said he was even more concerned about the appointment of Ed Martin, who has been a prominent backer of Jan. 6 defendants, as interim U.S. attorney in Washington, D.C.
“That could really drive people out,” the first official said. “The pardons are terrible. But if it were limited to pardons with no long-standing assertion of control, that would be bad — but not fundamentally counter to how the U.S. attorney’s office would operate going forward. We’ve seen very controversial pardons over the years. … This is extreme in not only the pardons, but prospectively.”
Mike Davis, a lawyer who advises Trump informally on law enforcement issues, defended pardoning even those who committed violence. He told NBC News the Biden administration “persecuted” Jan. 6 defendants by labeling them insurrectionists and treated them differently from others who committed similar crimes.
He did not oppose criminal charges against those who attacked police officers, Davis said, but even those people “have suffered enough for the last four years. They’ve already paid more of a price than any [Black Lives Matter] protester who attacked police.”
Even violent rioters who had not yet been prosecuted, he said, have paid a high price.
Among some legal experts and lawyers who have represented Jan. 6 defendants, there was a narrower argument to justify pardons of at least the nonviolent offenders: that the Justice Department was unusually and unfairly tough on them.
“The resources expended by the FBI and DOJ to prosecute the average J6er was insane,” said a lawyer who declined to be named because he regularly deals with the Justice Department. “Particularly given that DOJ has done blanket dismissals for lots of crazy vandalism/violence in other contexts or just prosecuted ringleaders.”
There were stories of members of the mob who did nothing more than enter the Capitol illegally, pleaded guilty to felonies and spent time in jail — in many cases a life-shattering development.
Paul H. Robinson, the Colin S. Diver professor of law at the University of Pennsylvania Carey Law School, argued in an interview that authorities did not devote similar resources and intensity to people who engaged in violence during summer 2020 riots in response to the police killing of George Floyd in Minneapolis. Many Republican politicians have also made that argument.
“It’s hard to look at the situation and not to say there is a large component of politics here,” Robinson said. “There really was, I think, sort of an overeagerness in the Justice Department to make this into something that it wasn’t.”
Justice Department officials disagree, arguing that the attack on the Capitol was different from other riots because it was an attempt to impede the lawful transfer of power that happened in plain sight, with an unprecedented amount of video evidence.
But even many skeptics agree with prosecutors on this much: Trump went too far when he pardoned people who engaged in violence.
“The guys with real violence, real planning, weapons, etc. — those pardons are ugly and bad,” said the lawyer who regularly deals with the Justice Department. “I guess they just didn’t want the headache of separating the sheep from the goats, so they went blanket.”
Robinson, in an op-ed published Monday morning in The Hill newspaper, urged Trump to act with restraint on Jan. 6 pardons. He told NBC News: “Obviously he didn’t listen to me. It’s not good for the country, and it’s not good for the president.”
Randall Eliason, a former federal prosecutor and a professor at George Washington University Law School, said he saw the pardons as “a terrible blow to the justice system, and I would argue it’s one of Trump’s most dangerous abuses of power to date. The signal that it sends is that if you commit crimes on Trump’s behalf, he will have your back and make sure you are not held accountable.”
Bruce Ackerman, the Sterling professor of law and political science at Yale Law School, called it “a situation of not a thoughtful and discerning use of presidential pardon power but a president pardoning his allies for their participation in a violent coup d’etat.”
Some legal scholars, including Ackerman, said former President Joe Biden’s last-minute pre-emptive pardons of family members were also an abuse of the pardon power.
But Chuck Rosenberg, a former U.S. attorney and an NBC News contributor who agreed that some of Biden’s pardons were deeply problematic, said, “The whataboutism doesn’t work here.” He added: “Pardons are most appropriate for people who have paid their debt to society, have shown contrition and remorse, have accepted responsibility and who have earned grace. None of that seems to have been part of Trump’s equation.”
Trump and allies have long waged a campaign of disinformation about Jan. 6, asserting that antifa or FBI operatives ginned up the riot or that the descriptions of violence were overblown. Trump repeatedly called the Jan. 6 defendants “hostages.”
In addition to the video evidence documenting the violence, independent investigations debunked the conspiracy theories, including one by the Justice Department inspector general that found no evidence that anyone linked to the FBI did anything to incite the riot.
U.S. District Judge Royce Lamberth, an appointee of President Ronald Reagan, pointedly took on the fabrications in a sentencing opinion a year ago, writing: “In my thirty-seven years on the bench, I cannot recall a time when such meritless justifications of criminal activity have gone mainstream.”
“The Court fears,” Lamberth continues, “that such destructive, misguided rhetoric could presage further danger to our country.”
Manning, the former prosecutor of Jan. 6 cases, said that while the pardons are painful, they do not “change the fact that these crimes were committed” or that the Justice Department won more than 1,000 convictions.
“So speaking just for myself, no regrets about the effort we made to build these cases, and even after these pardons, the record stands,” he said.
