January 6 pardons: Who qualifies, and what can we expect?

Social media is abuzz with questions and speculation about what the pardon process might be for persons convicted for their actions on January 6. These questions were supercharged by a comment attributed recently to an unnamed “transition official,” who said all convictions would be reviewed on a case-by-case basis, throwing a wet blanket on the expectations and demands by some that President Trump should pardon everyone convicted of any crime stemming from that day.

The transition official’s comment suggests that some individuals, including those already convicted or awaiting trial, might not receive any relief from the Trump Justice Department starting January 20 or afterward.

A case-by-case process is unlikely to be as complex as some might fear.

For those wondering about the basis for my “informed speculation,” here’s how I’ve formed the views expressed here.

After serving 21 years as a federal prosecutor in California and Hawaii, I transitioned to private practice in 2013, focusing almost exclusively on federal criminal defense. Since October 2021, I have represented defendants charged in connection with the events of January 6. Blaze News readers may know me as Steve Baker’s defense attorney.

To date, I have defended approximately 90 clients facing these charges. I have handled 10 trials — three of them jury trials — with my 11th trial starting in nine days and my 12th scheduled for January 6, 2025, marking the fourth anniversary of the Capitol protest.

With nearly 99.9% of all January 6 defendants convicted of at least one crime — a fact, not hyperbole — the outcomes I have achieved for my clients are among the best in this field. That is also a fact. However, this area of practice inevitably leaves many dissatisfied to some degree. Some clients seek to place blame on their attorney, and while there are a few disgruntled detractors, it is an occupational hazard that comes with this challenging territory.

I receive at least half a dozen calls each week from clients whose cases have concluded, asking how I believe the pardon process might work once implemented. I plan to handle pardon applications for all my convicted clients and will also represent other January 6 defendants seeking pardons who prefer not to use their previous counsel. (For more details, look for updates on X.)

Here is the basic answer I have given all who have asked.

1. First, President-elect Trump, based on his public statements and reports, has promised relief for those convicted. However, his comments are often — though not always — paired with the condition that relief applies only to “nonviolent” offenders. A transition official’s remark that the process will involve a “case-by-case” review has sparked demands from some in the January 6 community for blanket pardons, regardless of the circumstances or conduct involved.

2. Even so, a case-by-case process is unlikely to be as complex as some might fear. If the initial dividing line is between “violent” and “nonviolent” offenders, much of that groundwork has already been laid by the Biden Department of Justice over the past four years. Individuals charged with and convicted of the four basic misdemeanors are, by definition, “nonviolent” offenders.

A case-by-case review could simply group those cases for pardons at the outset. This group represents the vast majority of all January 6 cases — approximately 1,100 to 1,200 defendants fall into this category.

3. A second category of “nonviolent” offenders will likely include defendants whose sole felony charge is a violation of 18 U.S.C. Sec. 231 — “civil disorder.” This offense involves impeding or interfering with police efforts to disperse a crowd and end a riot. Common scenarios include failing to leave when ordered or crossing a police line after it has been established. In cases where no other charges are filed, this has been the felony charge used by the Department of Justice.

If there was physical contact with law enforcement, the charge typically escalated to 18 U.S.C. Sec. 111 — “assaulting, interfering, etc.” with law enforcement officers. The main distinction between the two charges, which are otherwise similar, is the presence of actual physical contact. A Sec. 231 charge applies to actions that make the officers’ job more difficult without physical violence.

Because Sec. 231 does not involve violence directed at police, any January 6 defendant convicted solely of this felony — and there are a few dozen in this category — would also qualify as a “nonviolent” offender eligible for a pardon.

4. A third category of “nonviolent” offenders will likely include defendants whose sole felony conviction is a violation of 18 U.S.C. Sec. 1512 — the “obstructing Congress” charge that the Supreme Court undermined in Fischer v. United States. Since the Fischer decision six months ago, the Department of Justice has not clarified how it can apply this charge to January 6 defendants under the narrower interpretation outlined by the Supreme Court.

For defendants with pending appeals of their Sec. 1512 convictions, cases have been sent back to trial courts for further proceedings in light of the Fischer decision. These proceedings typically involve resentencing without the Sec. 1512 charge included. However, the situation is more complicated for defendants who pled guilty to Sec. 1512 and waived their right to appeal. Because they have no active cases to return to trial courts, their situation remains unresolved.

For these defendants, pardons would address the issue, recognizing that the Sec. 1512 charge should not have been brought in the first place. Since Sec. 1512 does not involve violent conduct, cases where it is the only felony conviction should be included in the same pardon category as Sec. 231 convictions.

5. That leaves two broad categories of felony convictions: violations of 18 U.S.C. Sec. 111(a) and (b) — “assaulting, interfering, etc., with federal officers” — and 18 U.S.C. Sec. 1361 — “destruction of government property.” These convictions will likely require a case-by-case analysis of each January 6 defendant’s actions.

My estimate, though not based on detailed statistics, is that fewer than 400 defendants fall into these categories. The challenge with including them in a blanket pardon is the existence of video evidence documenting each defendant’s actions, which could become political fodder in future elections.

I have clients in this category and will advocate aggressively for their pardons. However, these arguments will need to be individualized, focusing on all video evidence of their conduct on January 6, the Department of Justice’s failure to prosecute similar actions by protesters in other circumstances, and the disparities between sentences in January 6 cases and those handed down in other protest-related prosecutions.

These are arguments we were not allowed to present fully during their defense but should be carefully considered when evaluating their eligibility for pardons.

Caution with conspiracy theories

I understand better than most the extent to which the deck was stacked against January 6 defendants navigating the federal criminal justice process in the District of Columbia. This firsthand knowledge makes me sympathetic to the views expressed by many online — including some of my clients — that the unfairness of the process justifies blanket pardons for all defendants, regardless of their convictions.

However, some of the claims made by boosters of this position include allegations for which I have seen no supporting evidence. These include some of the more baseless “conspiracy theories” about the events of January 6. Having reviewed almost all the available evidence, I can confidently say that I have found nothing to substantiate these theories.

Perhaps a Trump Justice Department investigation will uncover evidence I have not seen. But I know that many of the most popular social media conspiracy theories are contradicted by actual evidence — evidence that proponents of these theories often choose to ignore.

I can’t endorse those conspiracy theories by using them as a basis to justify claiming that everyone should get a pardon based on such conspiracy theories

For nearly three years, while arguing for my clients in sentencing hearings, I’ve consistently observed the diverse motivations and actions of those who attended the events on January 6, 2021. Most participants had attended the rally at the Ellipse, but not all. A significant majority — I would estimate over 90% — came to Washington, D.C., to hear Donald Trump speak, without any intention or expectation of going to the Capitol after the rally. I’ve heard this explanation dozens of times over the past three years: Attending the rally was their primary reason for being in D.C., while going to the Capitol was unplanned and spontaneous.

But that explanation does not account for everyone.

A few bad guys among thousands

Among those who went to the Capitol, I’ve argued that the vast majority — in the tens of thousands — intended only to protest and did nothing more than observe the events between 1:00 p.m. and 6:00 p.m. A smaller subset of this group moved closer to the Capitol and went inside, but their actions were limited to walking around for some time before exiting. This group of January 6 defendants — roughly 1,100 to 1,200 individuals — has faced only the four basic misdemeanor charges.

Second, a segment of the crowd went to the Capitol intending to do more than simply observe. They aimed to loudly and passionately voice their objections to the certification of the Electoral College vote, hoping to persuade GOP members of Congress to delay certification. However, they had no preconceived plans to engage in further action beyond gaining Congress’ attention. These individuals pushed their way to the front and displayed more demonstrative behavior. This group included January 6 protesters who, for the most part, were drawn into clashes with law enforcement. These confrontations often resulted from law enforcement’s attempts to disperse the crowd using measures like flash-bangs, tear gas, and pepper spray.

Third, a much smaller group came to Washington, D.C., seeking conflict, expecting Antifa and other anti-Trump extremist groups to engage in violent clashes with pro-Trump protesters. These expectations stemmed from previous attacks by extremist groups on Trump supporters during the “Million MAGA March” on November 14, 2020, and the “Jericho Rally” on December 12, 2020, both in D.C. Discussions of these incidents were widespread in online communications, particularly among members of the Proud Boys — who were attacked on December 12 — and the “Three Percenters.”

Within this third group, some individuals were simply “bad actors,” drawn to the prospect of “finding trouble” for its own sake. For them, the potential for a fight was the main attraction. Many in this small subset had prior criminal records and were well acquainted with the inside of a jail or prison cell. I know this firsthand, as more than one has been my client.

The real travesty

Much of the suspicion and criticism of the protesters arises from their attire and gear — body armor, helmets, goggles, pepper spray, bear spray, and similar items. However, many critics fail to recognize that the violence on November 14 and December 12 motivated these individuals to come equipped for protection. Notably, they avoided bringing firearms to D.C.

The gear was intended for defensive purposes, not to confront law enforcement, but to guard against anticipated attacks from left-wing extremist groups. This fact has been consistently ignored in the Department of Justice narrative, but I will emphasize it on behalf of my clients who came prepared with such items.

The real travesty is that many defendants in the second group, who will likely face case-by-case reviews, have no prior criminal record. Many have military or law enforcement backgrounds, having served their country without prior involvement with the criminal justice system. I have numerous clients charged with Sec. 111 violations who fit this description. Their actions on January 6 were often driven by high emotions and a reaction to what they saw unfolding around them. They did not come to the Capitol intending to fight with anyone, including law enforcement.

Unfortunately, these defendants are often grouped into the same category by the Department of Justice narrative as those in the third group — the small number who came to D.C. actively seeking a fight and saw the Capitol as the venue for that confrontation. These third-group cases deserve the most scrutiny on review, but the increased attention could unfairly affect second-group defendants, whose actions were fundamentally different.

This conflation may harm the chances of second-group defendants receiving pardons, as their conduct could be viewed as similar to that of the “bad guys” who came looking for trouble. This is a real concern in ensuring fair outcomes for those who do not belong in the same category as the third group.

Countering the ‘official’ narrative

From my experience handling numerous cases, I know that government prosecutors and FBI agents have frequently — far more often than an acceptable error rate — mischaracterized and exaggerated the conduct of January 6 defendants as shown on video evidence. In every case I have handled, the Justice Department has provided the most egregious interpretation of the evidence, often to the point of deliberate misrepresentation. This behavior is dismissed as “zealous advocacy,” which may be acceptable in standard litigation but violates a prosecutor’s ethical duty to “seek justice.”

To secure plea deals, January 6 defendants have been forced to accept these mischaracterizations as factual. The government presents its statements of fact as non-negotiable, requiring defendants to take them or leave them. With a conviction rate of 99.9%, defendants seeking the benefits of a plea agreement have had no leverage to have their perspectives included in the factual basis reviewed by judges.

This approach has had significant consequences for defendants, but that is a broader discussion for another time.

Many January 6 defendants who undergo case-by-case reviews will benefit from the opportunity to present their own interpretation of what the video evidence shows. For most of my clients, this will be the first chance to argue what the video depicts — or does not depict — without being constrained by a signed factual statement coerced by the Justice Department “at the barrel of a gun.”

That said, and while acknowledging the legitimate complaints about undergoing the criminal justice process in the District of Columbia under these circumstances, some January 6 defendants were convicted of actions that constitute criminal acts against law enforcement. These are offenses that would have been prosecuted as crimes regardless of where or when they occurred.

That might be unpopular for some to read, but it is the truth.

Help is here

In a few days, I will announce a pardon initiative that I will offer free of charge to any January 6 defendant who wishes to seek a pardon but prefers not to work with the attorney who handled his original case.

The Trump administration may ultimately decide that no submission of materials is required for the pardon process it establishes. But given the references to a potential “case-by-case” analysis for some or all cases, I will be prepared to file materials on behalf of my clients who wish to pursue pardons.

As mentioned earlier, I will also extend this service to other January 6 defendants seeking pardons.

More details to follow.

Editor’s note: A version of this article appeared originally at Shipwreckedcrew’s Port-O-Call on Substack.