The riot at the Capitol on January 6, 2021, was a national disgrace. It was also a crime. Protesters physically forced Congress to adjourn its constitutionally mandated joint session and evacuate the building. There were assaults on police, theft, and an estimated $2.88 million in damage to property. A dozen police officers spent months recovering from injuries. Protesters who got inside the Capitol chanted death threats aimed at then-vice president Mike Pence.
As happens when chaos is unleashed, bad things follow. One protester was shot to death by a Capitol police officer while at the head of an angry mob pushing through a door. Three other protesters died of natural causes at the scene: two of heart attacks and a third from amphetamine intoxication after being trampled by a crowd. An apparently healthy Capitol Police officer who was pepper-sprayed during the riot collapsed eight hours later and died of a pair of strokes. No charges were brought for causing any of these deaths (as much as Democrats and the press tried to imply that they were criminal homicides), and only the shooting was tied by a medical examiner to the riot, but they reflect the danger of a runaway mob scene.
Criminal prosecutions rightly followed, and Trump himself was forced to condemn the riot in a speech on January 7, 2021, calling it an outrageous display of “violence, lawlessness, and mayhem,” and promised, “to those who broke the law: You will pay.” Some 600 participants were charged with assaulting, resisting, or impeding police, including almost 200 rioters who carried weapons and a handful convicted of seditious conspiracy. But the broad net that was cast could not have contrasted more strongly with how Merrick Garland’s Department of Justice and Democratic prosecutors dealt with other riots and political disorders. The Justice Department deployed extraordinary and disproportionate resources to punish the protesters, holding many of them in extended pretrial detention far from home for months. The Supreme Court concluded that one of the major federal statutes deployed against the January 6 defendants had been strained by prosecutors beyond its language.
At the same time, DOJ was going easy on George Floyd–era rioters, including a mob that caused the Secret Service on one occasion to evacuate then-president Donald Trump. It dragged its feet on providing security to Supreme Court justices while their houses were ringed with protesters. Charges weren’t brought against the mobs that invaded the Capitol during the Brett Kavanaugh hearings in 2018. Democratic prosecutors went soft on mobs that took over college campuses and terrorized Jewish students. Democratic senators celebrated mobs that invaded the Tennessee statehouse in 2023, just as they did in Wisconsin in 2011. The list goes on. Trump supporters quite reasonably noticed that the justice system was not applying the same standard across the board.
Monday, in one of his first-day official acts, Trump granted “a full, complete and unconditional pardon” to over 1,500 people convicted in the January 6 prosecutions, exempting only 14 of the worst defendants, who were given commutations of their sentences. He ordered that all remaining prosecutions be terminated and those in prison be released immediately. Trump had discussed doing something like this during the campaign, but its sweeping breadth undercut prior reassurances by Vice President JD Vance that, “if you committed violence on that day, obviously you shouldn’t be pardoned.”
Trump will be able to use the political cover provided by the abusive last-minute pardons handed out by Joe Biden. While Biden’s scandalous pardons will undercut the credibility of Democrats’ criticisms of the January 6 pardons, they don’t justify them.
Societies must resist disorder, riots, political violence, and mob rule. They can and must use the criminal justice system to punish those who engage in such acts. The more dramatic the offense, the greater the case for exemplary punishment. The real scandal is not that violent rioters were charged on this occasion but that they were let off on so many other occasions. Imitating a mistake only compounds the original mistake. While there may have been individual cases among those convicted of violent acts that would warrant a pardon or commutation after a thorough review of the facts, Trump should have drawn the line there.
That is not to say that all 1,500 pardons were equally bad. Undoubtedly, given the unequal justice applied and the vast resources used against these defendants, there were individual injustices that ought to have been met with clemency, although our preference would still have been for a review of individual cases rather than a blanket pardon. Moreover, given that many of the non-violent participants have been subjected to four years of draining legal process, it is likely that they have been punished enough by now, so the harm done by pardoning them is not extensive.
Pardons have sometimes been used in the past — in some cases wisely, in others not — to turn the page on divisive episodes of civil disorder and disobedience. George Washington pardoned the ringleaders of the Whiskey Rebellion after dispersing their followers. Andrew Johnson pardoned thousands of Confederates. Jimmy Carter mass-pardoned Vietnam draft dodgers. In none of those cases, however, was the president who issued the pardons himself on the side of the malefactors he pardoned. Moreover, Washington’s example cannot easily be separated from its context at the end of an era of revolution in America.
Trump may calculate that Americans have moved on from January 6, that those in favor of the pardons cared a lot more than those who criticized them, and that he could bury the news amidst the whirlwind of activity in the start of his administration. Perhaps his conscience, too, bothered him as so many were punished for following his lead on that fateful day. But if even one of the pardoned defendants commits an act of political violence in the future, he could live to rue this act. Even if he doesn’t, it is a poor start for an administration that has pledged to end the partisanship of law enforcement and restore public order.