How far does Donald Trump’s blanket clemency for Jan. 6 defendants go? The seemingly philosophical question has immediate legal consequences, raised not only by the sheer number of people pardoned but also by the diversity of some of their criminal conduct extending beyond the confines of the Capitol that day.
Take the case of Dan Edwin Wilson.
The Jan. 6 defendant pleaded guilty to conspiracy to impede or injure a federal officer, as well as to firearm-related charges resulting from a search of his Kentucky home. He was sentenced by a Trump-appointed judge, Dabney Friedrich, to five years in prison on both sets of charges to run concurrently (meaning running together, not consecutively). The Justice Department had recommended a five-year term.
Then came Trump’s clemency order last week, which granted pardons for people “convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021.” Wilson was then released from the federal Bureau of Prisons. But according to a court filing from his lawyer on Sunday, the BOP wants him back.
“Whether he was, in fact, pardoned of both sets of offenses has yet to be litigated,” his lawyer Norman Pattis wrote in seeking a court order halting any incarceration effort while the issue is litigated. The lawyer also wrote: “Although the firearms charges arose from evidence seized in a search of Mr. Wilson’s home, that search warrant was issued to seek evidence of his participation in the Capitol riot. It pre-dated his arrest on riot-related charges.”
The question this raises is whether the firearm charges are “related to events that occurred at or near the United States Capitol on January 6, 2021.”
Getting back to the text of Trump’s order, the question this raises is whether the firearm charges are “related to events that occurred at or near the United States Capitol on January 6, 2021.” How the courts answer the question depends on how broadly they see the events as being “related.” As his lawyer frames the matter, the firearm charges are related in the sense that they stemmed from a search for Jan. 6-related evidence.
Yet, how far does the “related” connection extend? One can think of examples that push the notion beyond the breaking point. To take an extreme hypothetical, what if law enforcement had found a dead body in Wilson’s home while searching for Jan. 6-related evidence? Would a pardon cover any federal charges he might face related to the body in that hypothetical scenario?
Now, in typical litigation, an argument that one side raises would face adversarial testing by an opposing party. But here, the federal government under Trump is broadly on the defendants’ side. And if the courts push back against the defense argument and Trump doesn’t like that, then he’s free to issue a separate pardon to cover any firearm-related charges.
In fact, if the president wants to ensure that none of his supporters face any further legal consequences (at least at the federal level, where he has clemency power), then he could issue another blanket pardon for any federal crimes whatsoever over a specific period of time, on top of the blanket Jan. 6 clemency. He could keep pardoning them until he leaves office for any and all federal crimes he chooses. So it’s unclear at the moment to what extent these novel questions will be answered in court. On Monday, Judge Friedrich ordered the government to respond by Tuesday. So first we’ll see if the new DOJ believes the conduct is covered by the pardon — and what the judge does in response. 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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