Jan. 6 defendants are still dealing with issues related to the 2021 riot at the U.S. Capitol more than four months after President Trump pardoned nearly 1,600 of them.
Some are encountering repercussions from their arrests even though most formal proceedings on terminating probation, vacating appeals and returning property have been resolved, said Christopher Macchiaroli, who represented Jan. 6 clients.
Numerous defendants have had issues with heightened secondary security screening for travel, which caused them extensive delays or prevented them from checking in for flights, Mr. Macchiaroli said.
Others have had trouble with background checks for carrying firearms and applying for jobs and rent, as well as at police stops, he said.
“It is not clear that the prior convictions were adequately corrected in criminal databases when the pardons were announced,” said Mr. Macchiaroli, a partner at Silverman, Thompson, Slutkin & White LLC.
Moreover, some judges have refused to dismiss the cases with prejudice, allowing for a possible refiling of charges.
Mr. Trump pardoned the defendants on Jan. 20, just hours after his inauguration. He commuted the sentences of 14 and gave full pardons to those convicted of charges related to the Jan. 6, 2021, riot. The rioters sought to halt Congress’ certification of the 2000 election results.
The president’s executive order also directed the Justice Department to dismiss pending cases against Jan. 6 defendants “with prejudice,” meaning the charges could not be refiled against them.
Ted Cooperstein, an appellate lawyer in Mississippi, said he consulted with a Jan. 6 client who could have appealed the dismissal of his case after a judge refused the Justice Department’s request to dismiss it with prejudice.
“This left open the possibility of a re-indictment before January 6, 2026, which would be [the] expiration date of the limitations period. Since this is unlikely and the client wished to avoid further publicity, we had foregone an appeal, which would have just been an interesting academic legal issue whether a district judge can deny a prosecution request for dismissal with prejudice,” Mr. Cooperstein said in an email to The Washington Times.
The defense lawyer said at least three federal judges — Tanya Chutkan and Beryl Howell, both Obama appointees, and Paul Friedman, a Clinton appointee — dismissed pending Jan. 6 cases without prejudice.
“The net practical effect for each defendant should be null. The statute of limitations remains 5 years, so once we reach 6 January 2026, the defendants should be out of danger of criminal liability from a revived prosecution. So long as the DOJ and [the U.S. attorney’s office] remain in control of this President,” Mr. Cooperstein said.
Mr. Macchiaroli said the judges likely declined to dismiss the disputes with prejudice to deny a final resolution.
“Judges pushing back ideologically, claiming that the dismissal was a political decision more than the result of mistaken identity or a violation of required discovery disclosures, which more commonly results in dismissals with prejudice,” he said.
The Washington Times has reached out to the Justice Department for comment.
Meanwhile, references to the pardons have begun to appear in new sentencing memos related to participants in other protests who have been accused of federal crimes.
Eugene Ohm, a federal public defender, argued in a filing this month that his client, Michael Snow, who burned an American flag during a pro-Palestinian demonstration last year, should be sentenced to time already served.
Mr. Snow pleaded guilty to one misdemeanor charge of destruction of property: a flag valued at roughly $525.
On July 24, pro-Palestinian demonstrators gathered outside Union Station in the District of Columbia to criticize a White House visit by Israeli Prime Minister Benjamin Netanyahu. Unrest erupted as protesters burned flags, spray-painted graffiti on structures and tussled with law enforcement.
Damage and cleanup were estimated to cost the National Park Service more than $11 million, according to the Justice Department.
Mr. Ohm argued that Mr. Snow’s participation in the protest didn’t deserve jail time because Jan. 6 rioters had been set free.
“The Gaza protests were generally peaceful, however. Still, it is impossible to ignore, that as far as general deterrence goes, that nearly 4000 people who were engaged in all forms of political protest ranging from destruction of property to sedition have recently been pardoned,” Mr. Ohm wrote in court documents.
“Some of those individuals evaded punishment entirely. It is historically unclear what message the executive and thus the courts are sending to the public regarding general deterrence of crimes committed during political protests,” the public defender wrote. “Whatever that message may be, any sentence is likely to create an unwarranted sentencing disparity within the context of the January 6th pardons.”
Mr. Snow ended up with a sentence of four months of probation and community service.
Mr. Macchiaroli said one lesson from Jan. 6 is that law enforcement and prosecutors cannot treat civil unrest differently depending on the political speech at issue.
“Also, you cannot treat January 6 defendants as violent extremists, while not charging those violent protesters at universities targeting Jewish students or the nationwide unrest in urban cities in the Spring/Summer of 2020,” he told The Washington Times in an email.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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