President-elect Donald Trump has vowed to pardon at least some of the participants in the Jan. 6, 2021, riot at the U.S. Capitol shortly after his inauguration next month, following up on a rare campaign promise for judicial action, legal experts said.
“Pardons could be ready to go from the moment he takes office. He just needs to sign them, and that’s that. Traditionally, though, they have not been issued on Day One like that. But Trump has done things a bit differently than his predecessors,” said Brian Kalt, a professor at Michigan State University College of Law.
Mark Osler, a law professor at the University of St. Thomas, said presidential candidates “should say how they would use the clemency power. And Trump finally did.”
“If you talk about something openly to get elected, then there is a mandate there to act,” Mr. Osler said.
The president-elect’s promise of pardons has not escaped the attention of the Jan. 6 defendants, many of whom have asked for postelection delays in their trials and sentencings.
U.S. District Judge Amit Mehta, who presided over the sedition trial of Oath Keepers in the Capitol riot, warned against a pardon for the group’s founder.
“The notion that Stewart Rhodes could be absolved of his actions is frightening and ought to be frightening to anyone who cares about democracy in this country,” Judge Mehta said in sentencing another Oath Keepers member.
U.S. District Judge Carl Nichols, a Trump nominee, said during a hearing in November that blanket pardons for Capitol rioters would be “beyond frustrating and disappointing.”
On the campaign trail, Mr. Trump promised to free hundreds of protesters who overtook the Capitol while Congress was certifying the results of the 2020 presidential election. More than 1,200 have been charged with crimes related to the riot.
In a BBC interview this month, the president-elect reiterated his intention to exonerate the rioters.
“We’re going to look at independent cases,” Mr. Trump said. “Yeah, but I’m going to be acting very quickly. … First day.”
Mr. Trump also said during his campaign that he would commute the life sentence of Ross Ulbricht, who was convicted in 2015 of federal crimes related to his operation of Silk Road, a darknet marketplace for illegal products and services.
“If you vote for me, on Day One, I will commute the sentence of Ross Ulbricht,” Mr. Trump said to cheers at the Libertarian National Convention in May. “We’re going to get him home.”
Mr. Trump may have a team preparing which cases he plans to pardon or commute on his first official day in office, or he could have a Justice Department team examine and analyze cases after he is inaugurated on Jan. 20.
“President Trump will make pardon decisions on a case-by-case basis for those who were denied due process and unfairly targeted by the justice system,” Trump-Vance transition spokeswoman Karoline Leavitt told The Washington Times.
Mr. Trump could also try to pardon himself. Although the federal cases brought by special counsel Jack Smith over the alleged mishandling of classified documents and alleged election fraud have been dismissed, some charges could be refiled once Mr. Trump leaves office in 2029.
A self-pardon “is something that legal experts have disagreed on,” said Dan Kobil, a Capital University Law School professor.
“There has never been a case of it. [Richard] Nixon considered it, and they decided that was a bridge too far — they couldn’t do that. The question, if it came up, would have to be decided ultimately by the Supreme Court, and I think there are pretty decent arguments on both sides,” Mr. Kobil said. “However, this Supreme Court has been very expansive in interpreting executive power, so there is a possibility they could say the president could do whatever he wants.”
In July, the Supreme Court’s conservative majority ruled that a president has absolute immunity for core functions of his presidency, including pardon power.
“The immunity decision is huge on that,” Mr. Kobil said. “It undercuts one of the arguments the framers used when they gave presidents the power to pardon treason. One of the things opponents of the Constitution argued was that pardoning treason was too great a power because the president may be in league with the traitors. The response was, if he is in league with the traitors he pardons, he can be criminally prosecuted for doing so. That is no longer true.”
The presidential pardon power is in Article II, Section 2 of the U.S. Constitution. A president has broad power to “grant reprieves and pardons for offenses against the United States,” meaning federal crimes.
Mr. Trump could issue pardons for former administration officials Steve Bannon and Peter Navarro.
Mr. Bannon served as Mr. Trump’s chief strategist in the White House, and Mr. Navarro worked as the White House National Trade Council director. Both served time this year in federal prison for refusing to appear before the House’s Jan. 6 investigative committee.
Their crimes were federal in their refusal to comply with congressional subpoenas, but other close allies of Mr. Trump are facing state charges and would not be subject to receive pardons.
“He does not have the power to pardon for state convictions, period. And you can read it in the U.S. Constitution,” said Eric M. Freedman, a Hofstra University Law School professor.
Mark Meadows, who served as Mr. Trump’s chief of staff, faces charges in Georgia related to the Fulton County prosecution of the former president and 18 other defendants who contested the 2020 election. Rudolph W. Giuliani, who served as Mr. Trump’s attorney, is facing charges in the same dispute in Georgia.
• This article is based in part on wire service reports.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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