Presidents customarily grant their most controversial pardons in the waning days of their final term. President Donald Trump could potentially issue the most controversial pardons in history, by pardoning all of his loyal supporters who marched on and assaulted the U.S. Capitol Building.
A pretty sizable group of Trump supporters were present on Jan. 6. Within that group, there’s a lot of range when it comes to criminal culpability. A protester who remained on the lawn outside the building waving an oversized MAGA banner is less culpable than, say, the guy who posed sitting with his foot up on House Speaker Nancy Pelosi’s office desk.
Some Trump supporters could face possible homicide charges in connection with the deaths at the Capitol. Many more could be charged with trespass on, or destruction of, government property. On the other end of the spectrum, Trump supporters who never came within 50 yards of the Capitol Building likely committed no crime.
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In riot situations, it’s also challenging for law enforcement to single out and prosecute an individual defendant. In the melee and fog of tear gas, an accused person could mount an “it wasn’t me” or “some other dude did it” defense. In recent years, however, rioters have started helping prosecutors out by posting videos and pictures of their own crimes on social media. What one person calls a “selfie,” police detectives call “evidence.” Master criminals they are not. Police are not complaining. Some of the characters in the more infamous images from the riots have already been arrested.
While culpability may vary, ideology among the Trump supporters probably does not: it’s a safe bet that the people there were President Trump’s most ardent, vocal supporters. It takes a lot of enthusiasm for someone to travel to D.C. from places like Arizona or Florida just to attend a political rally.
Trump knows the people who stormed the Capitol love him. Here’s the real bizarre question: Will he love them back with a mass pardon?
It’s possible for several reasons.
First, the president can, in theory, pardon everyone who entered the Capitol Building, right now. He does not need to know their names. He does not need to know what they did. It doesn’t matter if they have been prosecuted or even identified yet. President Jimmy Carter summarily pardoned all draft dodgers of the Vietnam War — whether or not they had been arrested. Carter’s attorney general was ordered to halt all investigations of people not yet even charged. President Gerald Ford also granted a “full, free, and absolute pardon [to] Richard Nixon for all offenses … which he … may have committed or taken part in.” Presidents can pardon “all [federal] offenses,” before they are even investigated, as long as the conduct has actually occurred.
The president can pardon those who rioted at the Capitol. As ill-advised as this move may be, here’s why he might.
These Trump supporters may be all he has left. Members of his own administration are already bailing out. Social media is finally suspending him at the very end of his term — either out of some amorphous corporate scruples or to curry favor in advance with the new administration. The Trump supporters, and the denizens of Parler, are his only allies right now.
Additionally, he may pardon them because we’ve spent four years saying, “He wouldn’t dare [fill in the blank],” and then watching him [fill in the blank]. His decisions are not just unpresidential; they are counter-presidential. Sometimes they appear calculated to be the opposite of what a president would do.
But here’s why Trump would be ill-advised to pardon the rioters, no matter how much he loves that they love him:
First: Trump’s pardons have already established that Trump is ultimately out for Trump, and no one else. Sure, he pardoned his cohorts Roger Stone, Michael Flynn, Paul Manafort, and others. But, he made them go through investigations, trials, prosecutions, and even incarceration before he finally did it. And those are people he likes. A lot. He doesn’t even know the Viking Guy or any of the others.
Second: Right now, Trump can claim he never wanted or intended his supporters to break into the building, and that his speech was just fire-breathing political hyperbole. If he pardons them after the fact, then he is rewarding their conduct, implying after-the-fact that they did the president’s bidding. The pardons would still be effective, but the underlying conduct could invite charges.
Trump should not pardon the Capitol Trump supporters. Unfortunately, that’s exactly why he might do just that.
Danny Cevallos is an NBC News and MSNBC legal analyst, and a lawyer at Cevallos & Wong LLP in Newtown. Danny@DannyCevallos.com