4 years after Capitol attack, Jan. 6 cases hang in the balance with Trump pardons on the horizon
While Congress meets Monday to count the Electoral College votes and affirm President-elect Donald Trump's victory in the 2024 election, the roughly 1,500 people accused of storming the Capitol four years ago will be focused on what happens next.
Charged as part of the largest Justice Department's investigation in history, they have been waiting to see if Trump fulfills his promise to pardon them or commute their sentences.
Prosecutors have charged more than 1,580 defendants with crimes tied to the Jan. 6, 2021, riot, including more than 170 who are accused of using deadly or dangerous weapons like fire extinguishers and bear spray against officers. While a majority were charged with nonviolent misdemeanor crimes, some were accused of conspiring to use force to resist the peaceful transfer of power. Others admitted to fighting officers and attacking members of the media.
More than 1,000 defendants have since pleaded guilty, and about 220 more were convicted at trial. Federal investigations said they are also seeking the public's assistance in locating at least five known fugitives.
According to the Justice Department, 1,100 defendants have already had their cases fully adjudicated, and hundreds have already completed prison terms.
The outgoing U.S. attorney in Washington, D.C., has continued to bring new charges against defendants.
"The Department continues to pursue those criminally culpable, especially those who assaulted law enforcement officers and engaged in disruptive or obstructive conduct that interfered with the peaceful transfer of power," the U.S. Attorney's Office said in a statement.
But with Trump's pledge to pardon at least some defendants and shut down the investigation, many of those who breached the Capitol four years ago could see their convictions erased and records wiped clean.
Some Jan. 6 defendants had prior criminal convictions
For some of those hoping for a pardon, their actions on Jan. 6, 2021, were not their first crimes.
A CBS News investigation examined federal sentencing documents to catalog the criminal histories of the Jan. 6 defendants, including those eligible for release, should Trump decide to pardon rioters once he takes office.
This analysis found that at least 159 of the Jan. 6 convicts who have been sentenced have prior criminal records. They include at least 41 people who had been convicted of at least one violent crime prior to their actions on Jan. 6, and at least 5 people with prior records involving violence or threatening behavior toward law enforcement.
Additionally, the CBS News analysis found at least 10 people convicted for their roles on Jan. 6, 2021, also carry past convictions for domestic violence offenses prior to Jan. 6. At least four have faced sex crime allegations.
CBS News' analysis draws on sentencing memoranda filed by Justice Department prosecutors, each of which included a section discussing the defendant's criminal history, if any.
In at least 19 of these sentencing memoranda, prosecutors used a common phrase to describe a defendant's past, noting that Jan. 6 "was not an isolated event in an otherwise law-abiding life."
Among those with criminal histories prior to the Capitol breach is Peter Schwartz, who prosecutors said "has a jaw-dropping criminal history of 38 prior convictions going back to 1991, several of which involved assaulting or threatening officers or other authority figures."
"Schwartz's conduct on January 6, 2021 was not at all out of character for him," prosecutors wrote. "Instead, the violence he displayed that day was just the most recent episode in a three-decade history of assault, violence, and weapons."
Schwartz was convicted of nine felonies and two misdemeanors for his role on Jan. 6 — including four counts of felony assaulting, resisting, or impeding law enforcement officers using a dangerous weapon — and is currently serving a 14-year sentence.
Potential pardons
Trump told NBC News' "Meet the Press" in December he's "inclined to pardon many" of the defendants immediately upon his inauguration, although he has also said some "got out of control" and might not receive a pardon. He expressed sympathy for Jan. 6 defendants, who he said had "suffered long and hard."
The Constitution gives presidents unfettered power to pardon any federal crime. Recently, President Biden used the authority to pardon his son, Hunter, a move that was met with bipartisan criticism. In December, he pardoned or commuted the sentences of more than 1,500 people who were convicted of nonviolent crimes and "demonstrated remorse and rehabilitation."
Usually, presidents work with the Justice Department's pardon attorney to consider clemency requests. The Trump transition team has not disclosed how it plans to handle the gargantuan task of reviewing pardons for hundreds of Jan. 6 defendants.
Trump transition spokeswoman Caroline Leavitt told CBS News that Trump would "pardon Americans who were denied due process and unfairly prosecuted by the weaponized Department of Justice."
Fallout in court
Trump intends to nominate former Florida Attorney General Pam Bondi to be attorney general, and he plans to tap former defense official Kash Patel to be FBI director. If confirmed, Bondi and Patel — who has said he opposes the Jan. 6 prosecutions — would have the power to shut down the Capitol breach investigations altogether and weigh in on the administration's clemency strategy.
Ahead of Trump's inauguration, Jan. 6 defendants have been asking judges to pause their cases or delay proceedings, citing Trump's pardon promises.
A day after the election, attorneys for one defendant, Christopher Carnell, wrote that their client — who faced nonviolent disorderly conduct charges — is "expecting to be relieved of the criminal prosecution that he is currently facing when the new administration takes office." A federal judge in D.C. rejected Carnell's request to delay his case. He was later convicted on multiple counts and sentenced to six months in prison.
Like Carnell, the majority of the Jan. 6 defendants were charged with nonviolent crimes, like illegal entry into the Capitol or unlawful picketing. Prosecutors say they opted not to charge individuals who merely protested outside the Capitol that day and focused instead on those who entered the building.
Advocates for Jan. 6 defendants say they deserve pardons, contending that some faced charges that were too harsh, some jury pools were unfair or some received unduly harsh penalties for the crimes.
A group of family members and supporters have regularly gathered outside the D.C. jail where some defendants are being held and pushed for clemency. At his campaign rallies, Trump often played a recording of the National Anthem sung by defendants in the jail. According to the U.S. attorney in Washington, about 10 defendants are currently being housed in the D.C. facility either pending trial or waiting to be moved to a federal prison.
Some defendants faced more serious charges, like assault. Members of the far-right Proud Boys and Oath Keepers were charged with seditious conspiracy, the most severe charge levied by prosecutors. Juries in those cases found numerous defendants, including Proud Boys leader Enrique Tarrio and Oath Keepers founder Stewart Rhodes, guilty of using force to oppose the federal government. Tarrio received the longest of the Jan. 6 sentences — 22 years in prison — while Rhodes was sentenced to 18 years.
James Lee Bright, who represented Rhodes during his criminal trial but has withdrawn from the case, said, "I absolutely think a pardon for him is warranted."
Bright has also represented other Jan. 6 defendants, and he described a sense of "dismay" that courts and prosecutors haven't acknowledged the looming possibility of Trump pardons.
Rhodes' current attorney did not respond to a request for comment.
Nayib Hassan, an attorney for Tarrio, wrote a letter to Trump on Monday formally asking for a "full and complete Presidential Pardon."
"[Tarrio] is nothing more than a proud American that believes in true conservative values," Hassan said.
Both Rhodes and Tarrio are appealing their convictions.
Attorney Carmen Hernandez represented a Tarrio codefendant who was also convicted of seditious conspiracy. In an interview, she argued "at a minimum," the seditious conspiracy charge for all defendants should be pardoned.
"I think the seditious conspiracy convictions of the Proud Boys should be pardoned. There is no reason for those men to have been charged and convicted for seditious conspiracy," Hernandez said. She said pardoning them would enable defendants who are also veterans to maintain some of their benefits.
Hernandez represents at least a dozen other Jan. 6 defendants and said almost all of her clients with open felony cases hope to be pardoned when Trump takes office. But the process for requesting clemency remains uncertain, and it's not expected to begin until Trump is inaugurated. Trump told Time magazine he'd consider the Jan. 6 cases soon after he takes office.
"I'll be looking at J6 early on, maybe the first nine minutes," he said
Alexis Loeb, a former federal prosecutor who helped lead the Capitol attack investigation until last October, said she stood by the cases and noted they were based on a uniquely large amount of evidence.
While she declined to discuss any individual case or internal Justice Department deliberations, Loeb said, "These were prosecutions that were staffed by career employees. And the cases often had a remarkable amount of evidence given all of the video that was taken that day."
An uncertain future
The federal judges overseeing the Jan. 6 cases in district court in Washington, D.C., are also grappling with the uncertainty that lies ahead. Nearly all of these judges have been involved in the roughly 1,500 cases. A CBS News review of court hearings and records over the last four years showed judges appointed by presidents from both parties, including by Trump, have condemned the Jan. 6 riot and warned of future unrest.
Judge Royce Lamberth — a senior judge appointed to the bench by Ronald Reagan who has been an outspoken critic of attack — recently defended the court's handling of the cases.
"Just as the President must make decisions on matters of clemency without interference from the coordinate branches, so too must our judiciary independently administer the laws and sentence convicted offenders," Lamberth wrote. "No matter what ultimately becomes of the Capital Riots cases already concluded and still pending, the true story of what happened on January 6, 2021 will never change."
Should Trump decide to pardon some of the Jan. 6 defendants, the cases would be wiped from the judges' dockets and closed. Lamberth and his colleagues would no longer have jurisdiction over the defendants.
Loeb, the former prosecutor, argued that any pardons would be "a real affront to the victims" of the riot, including police officers, members of Congress and their staff. More than 140 officers were assaulted during the attack, according to the Justice Department. Multiple people died during the breach, including Ashli Babbitt, who was fatally shot by a U.S. Capitol Police officer. At least five officers died in the aftermath, including four by suicide.
Federal judges, Loeb contended, have served in a unique position during sentencing hearings, where they both note the significance of Jan. 6 and look "at the criminal conduct, the individuals' history and characteristics and the need for deterrence among other factors."
Pardons would risk repeat occurrences of the violence, Loeb said, and undermine any deterrent effect of the convictions.
There are also questions about how pardon or clemency decisions would be communicated to the courts and the federal prison system, which has housed more than 600 individuals tied to Capitol breach over the last four years.
"I don't know what the president is planning to do," Hernandez said. She suggested "an easy first step" for Trump would be to sign a blanket order commuting the sentence of all Jan. 6 defendants. After that, Hernandez said, the cases could be evaluated at a more detailed level.
As for the future of Jan. 6 investigations, Hernandez said she anticipates at a minimum the charging and plea decision-making processes within a Trump Justice Department would avoid what she characterized as the "overcharging" of the last four years.
For Loeb, who helped lead the Justice Department's Capitol riot unit beginning in February 2021, potential pardons aren't sitting well. "If you look at the publicly available facts presented in court, the facts fit the crimes," she said.
Leavitt, Trump's spokeswoman, alleged the media "still refuses to report the truth about what happened that day," and criticized the work of the congressional committee that investigated the attack.
"The American people did not fall for the Left's fear mongering over January 6th. They reelected President Trump by a resounding margin because they want him to unify our country through success, and that's exactly what he will do," Leavitt added.
