You’ve probably heard by now that President Donald Trump pardoned almost everyone who was criminally convicted in connection with Jan. 6 and that in some cases he commuted sentences to time served.
Trump didn’t fully explain why he gave commutations in those 14 cases and not pardons. While signing the clemency order Monday, he said: “We have about six commutations in there where we’re doing further research.” It wasn’t totally clear what that meant or why he said “about six” when there are 14 on paper.
But the implication of not pardoning those 14 people while doing so for about 1,500 others, combined with Trump’s “research” comment, is that there’s something about those commutation recipients that the president deemed presently unworthy of a pardon. Among the commutation recipients is Stewart Rhodes, the Oath Keepers leader who was sentenced to 18 years in prison for seditious conspiracy. Proud Boys leader Enrique Tarrio also was convicted of seditious conspiracy, and sentenced to 22 years, but he received a pardon, so that crime alone doesn’t seem to be the distinguishing factor between the types of clemency.
Here, it’s worth emphasizing the difference between the two types. As the Justice Department explains, a commutation reduces a sentence but “does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction.” Meanwhile, a pardon, according to the DOJ, “should lessen the stigma arising from the conviction” and “is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence.”
Clearly, the Jan. 6 pardons were the opposite of accepting responsibility. On both the part of the president who gave them and at least some of the recipients, it was more of a repudiation of the prosecutions themselves than a recognition of any rehabilitation.
Clearly, the Jan. 6 pardons were the opposite of accepting responsibility. To be sure, as a general matter, the pardon power can be used to vindicate the innocent just as it can to forgive the guilty. But whatever the reason that Trump (and/or whoever advised him on the matter) distinguished between the Jan. 6 pardon and commutation recipients, the immediate bottom line is the same: The nation’s prisons are emptied of Trump supporters who, like him, didn’t accept his 2020 election loss, including people who committed violence at the Capitol and still received pardons. That makes Trump’s decision to formally forgive that violence by way of pardons to some people while declining to pardon others all the more puzzling. The blanket clemency action that set the tone for Trump’s second term wasn’t a delicate maneuver. It didn’t, as Vice President JD Vance previously said should be the case, distinguish between violence and nonviolence. I’m unaware of anyone who would view the overall clemency action differently had Trump pardoned everyone, as opposed to almost everyone, especially when the latter group was likewise sprung from prison. So I’m curious to see what this stated “research” yields (if that’s what’s happening), if it goes toward answering the question of who among the Jan. 6 clemency recipients would be worthy of instant freedom but not forgiveness. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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