President-elect Donald Trump has repeatedly pledged to pardon US Capitol rioters on Day One, but one month before Inauguration Day it’s not clear who among the hundreds of convicted rioters, defendants awaiting trial and remaining fugitives would receive clemency.
Trump advisers are still solidifying their approach to January 6, 2021, pardons, several people in touch with the transition told CNN. And defense attorneys are scrambling to get clarity and convince the incoming administration that their clients are deserving.
In a Time Magazine interview conducted last month and published Thursday, the president-elect said he would look at rioters’ cases individually. “If they were non-violent, I think they’ve been greatly punished,” he said. “I’m going to look if there’s some that really were out of control.”
He also said the pardons would “start in the first hour that I get into office.”
Trump’s frequent – and vague – pronouncements still haven’t given much clarity.
“The statements change every day. The latest is everybody’s non-violent. But who knows what that means,” one defense lawyer on several rioter cases said this week.
The January 6 pardons will not be being doled out through a traditional application process like you would see with clemency issued by a sitting president, according to a source familiar with the Trump plans.
A handful of lawyers representing Capitol rioters told CNN they’ve been reassured by at least one Trump transition staff member that the January 6 pardons will happen quickly after the inauguration, in an attention-grabbing move by Trump that he is prioritizing.
The incoming administration does not want to “let people rot in prison while we figure out whether they should get a pardon,” one person familiar with the Trump legal strategy told CNN.
More than 140 police officers were assaulted by the mob, and the damage to the Capitol –from windows rioters smashed to enter the building to property rioters stole – was in the millions. Five police officers died in the days after the riot, with several committing suicide, and four people in the crowd died.
Some judges in Washington, DC, have also been publicly critical of Trump’s attempts to whitewash the riot’s causes and violence.
“No matter what ultimately becomes of the Capitol Riots cases already concluded and still pending, the true story of what happened on January 6, 2021, will never change,” Judge Royce Lamberth, a Reagan appointee and the senior-most judge in DC’s federal district court, said during a sentencing hearing last week.
Lamberth added, speaking about his own experience marching with Martin Luther King Jr. decades ago, that the rioters were not peaceful protesters nor are they hostages or political prisoners.
“They chose to trespass on restricted grounds, destroy public property, assault law enforcement officers, and attempt to subvert the will of an electoral majority. Conduct such as this is lightyears outside the aegis of the First Amendment,” the judge said. “Every rioter is in the situation he or she is in because he or she broke the law, and for no other reason.”
More than 1,500 Capitol rioters have been charged in federal court for their actions, with all but about 300 having been convicted or admitting their guilt almost four years after the Capitol attack. About half of the guilty rioters, 645, have been sentenced to jail time, according to the Justice Department, though many have completed serving their sentences.
The Justice Department is still trying to apprehend scores of people who were captured in video and photos in the riot.
In an interview with NBC News over the weekend, Trump said he may make exceptions to his promise of pardons “if somebody was radical, crazy.”
“Those people have suffered long and hard. And there may be some exceptions to it. I have to look,” Trump said.
One major question has been where a line might be drawn among the Capitol riot defendants who would be eligible for Trump’s clemency, and what would qualify as violent versus non-violent actions. This is more complicated than looking at the criminal charges prosecutors secured alone, because the approximately 200 rioters convicted of assault had a wide range of their degree of violence in the riot, some of the sources said.
Joseph McBride, a lawyer for several January 6 defendants who has advocated for blanket pardons, said Trump’s recent comments to dole out the pardons on a “case-by-case” basis wasn’t unreasonable.
Yet, “Do I know for certain that members of the January 6 community are going to be or are already disappointed in hearing this news? Of course,” McBride said to CNN.
The Trump team believes President Joe Biden’s lengthy pardon for his son Hunter has given them political leeway on granting broad pardons to the rioters, despite two recent polls showing that the public doesn’t agree the January 6 defendants should be freed.
A Trump spokesman did not return CNN’s request for comment
Awaiting a process
Another question is how the pardons might be secured – especially regarding how or if rioters and their attorneys may submit applications seeking one of the January 6 grants from Trump.
One defense attorney said he was concerned on Thursday that Trump’s recent comments, focused on rioters who are currently incarcerated, may not cover rioters who have completed serving their sentences.
One option on the table is to offer a blanket pardon to individuals charged with specific offenses and omit the more violent offenses, according to one of the sources.
One defense attorney who represents dozens of January 6 defendants said they’ve been flooded with outreach from clients who are thrilled about the election results and looking for answers about potential pardons. The lack of any announced procedures from the Trump transition has added to the confusion and anxiety for some defendants.
“I’ve told them to stay tuned, because it’s still being figured out,” the source said.
Judges of the DC District Court haven’t been willing to move Capitol rioters’ upcoming sentencings because of their growing expectations for sweeping pardons. But trials set for this winter before the inauguration have been postponed.
One judge, Carl Nichols, a Trump appointee, made pointed comments in a hearing for a Capitol riot defendant two weeks after this year’s election.
“Blanket pardons for all January 6 defendants or anything close would be beyond frustrating and disappointing, but that’s not my call,” Nichols said in court.
The rioter, Jacob Joseph Lang, had told Nichols in court “there is a tornado and a hurricane outside this building right now. His name is Donald Trump.”
What to do about seditionists?
There’s also questions among defense attorneys as to what will be done with people who fueled or led the mob, but weren’t violent themselves.
Chief among this group: Leaders of the far-right groups the Oath Keepers and Proud Boys who were convicted in the Justice Department’s landmark seditious conspiracy cases.
Attorneys for some of the highest profile non-violent defendants — like Oath Keepers leader Stewart Rhodes and Proud Boys leader Enrique Tarrio, both of whom were convicted of seditious conspiracy separately and sentenced to about two decades in prison each — are hoping that Trump will pardon their clients because they didn’t personally engage in any physical violence.
Tarrio, the former chairman of the Proud Boys, wasn’t in Washington, DC, on January 6. Still, he encouraged his followers in the months leading up to the riot to be violent.
In a statement after the presidential election, Tarrio’s attorney Nayib Hassan suggested that his client would be requesting a pardon.
“We wish to acknowledge and applaud the recent election results, particularly the election of Donald Trump. We look forward to what the future holds, both in terms of the judicial process for our client and the broader political landscape under the new administration,” the statement reads.
Tarrio hasn’t yet formally requested a pardon from Trump or his advisers, though another convicted Proud Boy, Joseph Biggs, has written to Trump asking for clemency.
Rhodes was convicted of spearheading a far-reaching plot to bring weapons to DC to capitalize on any violence that day and stop the certification of electoral college votes. But Rhodes is not accused of fighting with police or breaching the Capitol building, a point his attorneys relied on during his trial last year.
“I think Stewart is someone truly who should be pardoned, and I don’t say that about everyone involved in these cases,” Rhodes’ attorney James Lee Bright told CNN. He added that “the worst thing visually that the man did was take pictures” and was captured on video “just kind of hooting and laughing.”
But Bright said he was keeping his expectations low about the pardons and has even counseled other clients he has who are accused of violence not to get their hopes up.
“I think if he’s a man of his word then with the swipe of a pen that’s something he should do,” Bright said of Trump. “He’s a politician now, and I inherently don’t trust politicians.”
CNN’s Marshall Cohen, Curt Devine and Casey Gannon contributed to this report.
