He is taking steps to block J6 defendants from state employment.
He is taking steps to block J6 defendants from state employment.
A s Rich Lowry and I have discussed on our podcast, I believe it was a disgrace for President Trump to pardon Capitol riot defendants who either assaulted police officers or caused property damage. That category does not account for the majority of the roughly 1,600 January 6 cases, but it represents a big number — probably around a third. Remember, over 140 officers were injured, many seriously. (Democratic claims that police died in the attack are false. They will remain false no matter how incessantly they are repeated, including as recently as last Thursday’s confirmation hearing for Kash Patel, Trump’s FBI director nominee.)
That said, it is quite galling to find Illinois Governor J. B. Pritzker taking steps to block J6 defendants from state employment, in order to protest and (however marginally) undercut the clemency effects of Trump’s pardons. The Democrat’s toeing of the criminal-friendly, progressive line has contributed to Chicago’s status as one of the nation’s highest crime cities.
Look, if I ran either a private company or a public agency, I would not hire a person who had assaulted a cop putting him- or herself on the line to protect people and property during a demonstration that was devolving into an uprising. Peaceful protest and public security are too vital to a self-governing society to tolerate such malevolence.
I’m sympathetic to arguments that the J6 proceedings were inherently unfair, that the Biden administration abused its power by prosecuting trivial misdemeanor offenses of the type that the Justice Department ordinarily ignores, and that the DOJ exaggerated the seriousness of many other offenses — all in a politicized effort to help Democrats depict the three-hour riot as if it were a 9/11-scale terrorist attack, or even an “insurrection” on par with the Civil War. For that reason, I have no problem with a full pardon for the thousand or so non-violent protesters who — in mundane circumstances not infused by politics — would not have been charged at all, and who were put through the wringer as if they were hardened criminals.
That, however, should not excuse violent crimes as if they did not happen — as if members of the besieged security forces did not sustain broken bones, concussions, poisoning by aerial sprays, and so on. Material due process violations in such cases should be addressed on appeal or, if Trump insisted on granting some quantum of clemency to the perpetrators, by commutations (reductions of sentence that leave in place the underlying criminal convictions). Pardons, however, should have been out of the question for those who used force against police and/or damaged property at the Capitol.
Now, the main protections of a presidential pardon are threefold. It erases the judgment of conviction from the public record. It ensures that the pardon recipient may not be further prosecuted by the federal government for crimes arising out of the pardoned offense — provided that the pardon is framed to cover the full event in question (here, the riot) rather than just the narrow offense(s) of which the recipient was charged or convicted. And to the extent there are collateral legal consequences of a criminal conviction — e.g., denial of gun ownership or voting rights — those consequences are nullified.
Yet that does not prevent state and private actors from considering the underlying behavior for which a person was pardoned — even though the state may not treat the person as if he had a formal federal conviction (i.e., if the state, say, had a statute that increased criminal sentences based on prior convictions in any jurisdiction, a pardoned federal offense could not be counted).
There is, for instance, no federal constitutional prohibition against a state prosecution for the same offense that has been pardoned by the president — the best current example being the prosecution of Steve Bannon by Alvin Bragg, Manhattan’s elected progressive Democratic district attorney, for essentially the same fraud offense as to which the president pardoned Bannon before Trump’s first term ended in 2021. (That trial, by the way, is scheduled to begin later this month.)
And, relevant for present purposes, there is no federal constitutional bar to a state or private actor’s taking the underlying facts of a pardoned crime into account when making hiring and other decisions.
Of course, if a state singled out defendants pardoned by Trump for worse hiring treatment than other offenders who committed similar crimes — regardless of whether those offenders had been pardoned — there could be federal equal protection claims. But such claims are very difficult to establish. The 14th Amendment abides reasonably drawn distinctions (especially those that have nothing to do with race and other historically suspect categories); hence, a state can usually come up with a facially plausible reason that justifies differentiating one offender from another who seems similarly situated. In this instance, moreover, a Democratic-dominated state government’s claim that the Capitol riot was uniquely condemnable would surely get a sympathetic ear from state courts — and even lower federal courts in that state, the vast majority of whose judges will have been appointed based on recommendations by Democratic senators.
But all that said about the federal law, there is also state law to consider. States and cities dominated by Democrats tend to high crime because they have laws favorable to criminals. As noted above, Illinois is case in point.
The Prairie State features the Illinois Human Rights Act. The statute has been beefed up during Governor Pritzker’s years in office in furtherance of such progressive priorities as shielding illegal aliens from federal immigration law and enhancing access to abortion. As you’d expect, the HRA also protects criminals. Section 2-103.1, for example, makes it a “civil rights violation” for, not just the state, but any employer, employment agency, or labor organization
to use a conviction record . . . as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions or employment (whether “disqualification” of “adverse action”).
Now, there are exceptions. The state and other employers may factor in a criminal conviction if there is “a substantial relationship” between the nature of the offense and the nature of the job — a convicted embezzler probably shouldn’t be hired to manage state funds. Furthermore, with Chicago’s notoriety for violent crime a front-of-mind concern, the state legislature’s HRA allows employers to factor a criminal conviction into the assessment of whether employment of the person “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”
Still, it is hard to see how this law would not protect non-violent J6 protesters from Pritzker’s punitive partisanship.
Note that the HRA focuses on “convictions.” As a matter of law, the nonviolent J6 protesters no longer have criminal convictions, so their misdemeanors should not be factored in at all. Plus, even if the state were to consider the underlying conduct (as opposed to the convictions) of nonviolent J6 offenders, the HRA calls for similarly situated people be treated similarly.
If the Illinois HRA is enabling convicted felons to escape the consequences of their serious criminal conduct, how is it conceivable that the state could factor into employment decisions the conduct of people who, besides not being convicted, did not commit felony misconduct in the first place?
Look, Illinois under Governor Pritzker (and for some time before he assumed office in 2019) is an economic basket case — at or near the bottom of the 50 states in terms of fiscal condition, debt, bond ranking, and business environment. Even if it were a state where government employment prospects were good, there were maybe a couple of dozen J6 defendants from Illinois. Pritzker is preening for progressives and the press; his directive will have scant if any practical effect.
Still, the directive is obnoxious in light of the actual crime at which governor and other Illinois Democrats habitually turn a blind eye.