Monday’s straightforward certification of the presidential election results is a reminder of how differently it went four years ago on Jan. 6, 2021. And with Donald Trump set to take office in two weeks, it’s a reminder of the president-elect’s vow to grant clemency to Jan. 6 defendants.
Ahead of these potential pardons, The Wall Street Journal’s editorial board spotlighted some of the violence against law enforcement that Trump would be forgiving (while noting that it’s unclear how widespread his granting of such pardons would be).
And though the conservative sentiment underlying criticism of these possible pardons is understandable, some of its reasoning misunderstands the practical operation of the U.S. legal system.
First, in response to Trump’s claim that people pleaded guilty because a tough system gave them “no choice,” the Journal’s editorial board observed: “Well, if they were innocent, they could have told a jury.”
The rejoinder has superficial appeal. It’s true in the sense that people have the right to a trial. But relatively few cases go to trial, with most prosecutions resolved by plea in a system in which even innocent people have pleaded guilty.
To be clear, that reality doesn’t therefore make any of these Jan. 6 defendants innocent. And Trump could show a meaningful appreciation for systemic issues by extending his concerns beyond his political supporters. But the fact that a case was resolved by plea rather than by trial doesn’t determine the righteousness of a resolution one way or the other.
Second, the editorial goes on: “Pardoning such crimes would contradict Mr. Trump’s support for law and order …”
On the contrary, it would fit quite well. That’s because the political slogan signifies applying the law’s blunt force to certain people and not to others, rather than a straightforward application of the law to all people, in all circumstances, no matter the consequences. So in the context of Jan. 6, relieving certain people (i.e., Trump supporters) of the law’s blunt force, even if they assaulted the law’s enforcers, wouldn’t therefore contradict the “law and order” mantra. If anything, it could be its ultimate application. 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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