Evenhanded Injustice: Jan. 6 Pardons, Commutations & Dismissals

In volume one of Special Counsel Jack Smith’s final report, relating to President Donald Trump’s attempt to stay in power after losing the 2020 election, Smith wrote that four objectives listed in the Justice Department’s Principles of Federal Prosecution influenced his decision to bring the case. One of those was “to promote fair and evenhanded application of the law.”

Given that “more than 1,500 people [had] been criminally charged for their roles in the January 6 attack on the U.S. Capitol,” he explained, the fact that Trump was “the individual most responsible for what occurred” that day “weighed heavily in favor of charging him.” Over the next five pages, Smith provided a sampling of the types of evidence indicating that Trump was, indeed, “the individual most responsible for what occurred” that day: multiple judges’ observations at sentencings; defendants’ contemporaneous statements on social media or video explaining why they were about to commit, were committing, or had committed their crimes; Trump’s language at the Ellipse and the crowd’s response to it; formal defenses invoked by rioters’ defense counsel, arguing that Trump had authorized or induced their clients’ crimes; defense attorney arguments in summations, blaming Trump for the violence; and pleas for leniency by defendants or their family members at sentencing, averring that the defendant had believed he or she was serving Trump. 

But once Trump won the 2024 presidential election, Smith bowed to longstanding Justice Department policy, rooted in constitutional principles, and dismissed his cases against Trump. The goal of evenhanded justice had to give way to constitutional separation-of-powers doctrines.

Hours after his inauguration on Jan. 20, President Trump unveiled a new goal: achieving evenhanded injustice. Not only would Trump himself evade accountability; all Jan. 6 rioters who acted in service of Trump’s election lies would also evade accountability—or at least full accountability—for their offenses.

Trump issued a proclamation aimed at disposing of every one of the more than 1,583 cases that had been brought against Jan. 6 rioters as of that point. And though at first glance there appeared to be 14 exceptions—individuals to whom he gave only commutations of sentence rather than pardons—they are not really exceptions at all, as noted below. Rather, they are part of the same agenda to suppress, conceal, and erase Trump’s moral culpability for all of these overwhelmingly documented crimes, at least 1,270 of which had already resulted in convictions as of his inauguration.

Trump’s proclamation begins with a false and self-contradictory statement of reasons. It says: “This proclamation ends a grave national injustice that has been perpetrated upon the American people over the last four years and begins a process of national reconciliation.” But by labeling these prosecutions—overseen by dozens of judges appointed by presidents of both parties, including Trump—a “grave national injustice,” Trump was smearing all of those judges, as well as scores of career prosecutors and conscientious jurors, while expressing absolute solidarity with the accused no matter how grave their alleged offenses. He was thereby signaling and ensuring the very opposite of reconciliation. At least four federal judges, in five rulings, have already pushed back against the proclamation’s false preamble, which one  denounced as a “revisionist myth” and another decried as an attempted “whitewash.” A third, Judge Paul Friedman,  wrote more understatedly:

In each of the cases, law enforcement diligently investigated the facts. The prosecutors . . . conscientiously presented the evidence to support the convictions – including powerful testimony from law enforcement officers and other witnesses, as well as hundreds of hours of shocking videos of assaults on the Capitol and those trying to protect it. In each case, either a judge or jury evaluated the evidence presented through the crucible of direct and cross-examination. Judges methodically applied the law to the facts or instructed juries to do so. The voluminous records created in these cases will forever reflect that in the tumultuous time following the events of January 6, 2021, this Court was at all times a place of law and fact.

After its offensive preamble, the proclamation proceeded to draw a puzzling distinction between 14 named individuals, who received commutations of their sentences, and all others “convicted of offenses related to events that occurred at or near” the Capitol on Jan. 6, who were granted “full, complete and unconditional” pardons. Commutations reduce or eliminate sentences, but leave convictions intact; pardons void convictions entirely.

Since all 14 had been charged with seditious conspiracy, it appeared at first blush as if Trump was recognizing—in at least a small way—the unique seriousness of those individuals’ crimes. But closer examination undermines any such benign interpretation.

In the Capitol Siege investigation, 18 people were charged with seditious conspiracy. Fourteen of those were convicted: 10 by jury verdict, and four by guilty plea. The four who pleaded guilty cooperated against the others, and were eventually released and given sentences of time served. 

The Trump proclamation commutes the sentence of one who pleaded guilty—Proud Boy Jeremy Bertino—but inexplicably pardons three similarly situated Oath Keepers: Joshua James, Brian Ulrich, and William Todd Wilson.

Four of the remaining 13 defendants who received commutations had not been convicted of seditious conspiracy at all; they had been acquitted by juries. These included Oath Keepers Thomas Caldwell, Jessica Watkins, and Ken Harrelson, and Proud Boy Dominic Pezzola.

In contrast, the proclamation conspicuously granted a full pardon to one defendant who was not only convicted of seditious conspiracy, but who was, hands-down, the most notorious convict of all: then-Proud Boy leader Enrique Tarrio.

U.S. District Judge Tim J. Kelly, a Trump appointee, had sentenced Tarrio to 22 years imprisonment—the longest term imposed on any Jan. 6 defendant. In convicting, the jury had apparently accepted the prosecution’s theory that, on the day after Trump called for a “wild” protest on Jan. 6, Tarrio created a special Proud Boys chapter devoted to preventing the certification of Biden’s victory by any means necessary, including force. About a dozen members of that chapter later played integral roles in effectuating four pivotal security breaches on Jan. 6, including the first forced entry of the Capitol building through windows near the Senate Wing Doors at 2:13 pm. “Make no mistake,” Tarrio boasted to the Proud Boys’ “elders” board in an encrypted Signal chat text at 2:40 p., as the televised riot raged. “We did this.”

While Trump granted Tarrio a full pardon, he gave Caldwell, in contrast, only a commutation. Caldwell, who liked to hang out with Oath Keepers but wasn’t a member, was acquitted not only of seditious conspiracy but of all conspiracy charges. If you take that verdict seriously and put out of mind his alleged conspiratorial acts, all he did on Jan. 6 was stand in a restricted zone, never entering the building or committing any other crime. Such conduct would ordinarily not have even garnered a misdemeanor charge. (The government declined prosecution of about 400 individuals who fell into this category.) Though Caldwell was also convicted of destroying evidence (deleting certain materials from his phone) Judge Amit Mehta sentenced him to time served—the 53 days he had spent in pretrial detention. A 100-percent service-connected disabled veteran now in his 70s, with severe back problems and no prior convictions, Caldwell might have been a pardon candidate even in a Kamala Harris administration. Yet Trump gave him only a commutation, while granting Tarrio a full pardon.

So what was going on here? Well, certainly some of the anomalies in the proclamation might be due to the slapdash celerity of the whole endeavor. As recently as Jan. 12, Vice President J.D. Vance was still assuring the public that, “of course,” Trump would not be pardoning those who had violently assaulted police officers. But at some point as the inauguration approached, Axios reported that Trump simply cut the Gordian knot: “Fuck it. Release 'em all.”

The full pardon of Tarrio, however, was no oversight. A charismatic “Afro-Cuban” as Tarrio identifies himself, and friend of Trump’s longtime ally Roger Stone, Tarrio’s pardon looks like the product of brute political calculation and favoritism. Upon release, Tarrio instantly vowed revenge, belying the proclamation’s lip-service toward “reconciliation.” In an interview with Alex Jones, Tarrio said: “The people who did this, they need to feel the heat. They need to be put behind bars, and they need to be prosecuted.”

Other lines drawn—and not drawn—by the proclamation probably do reflect simple ignorance and carelessness, however. Why treat Caldwell, for instance, the same as Oath Keeper founder and leader E. Stewart Rhodes III, who was convicted of seditious conspiracy and sentenced to 18 years imprisonment? According to the evidence presumably accepted by his jury, Rhodes began preparing his group for “civil war” within days after the 2020 election; directed the stockpiling of an arsenal of AK-47s across the river at a Comfort Inn in Ballston, Virginia, in preparation for Jan. 6; inspired about 20 subordinate Oath Keepers to storm the Capitol; and continued buying firearms and preaching armed resistance even after January 6. Cooperating Oath Keeper Joshua James, in pleading guilty, endorsed the following description of his role in Rhodes’s scheme:

In the weeks leading up to January 6, 2021, Rhodes instructed James and other coconspirators to be prepared, if called upon, to report to the White House grounds to secure the perimeter and use lethal force if necessary against anyone who tried to remove President Trump from the White House, including the National Guard or other government actors who might be sent to remove President Trump as a result of the Presidential Election.

Trump’s proclamation bears the hallmarks of a document drafted swiftly by political advisors who knew virtually nothing about the cases Judges Mehta and Kelly had each agonized over for years in an effort to mete out particularized justice. Maybe some Trump advisors feared political blowback from pardoning those convicted of a crime as grave as seditious conspiracy—a charge that closely resembles treason. Maybe some thought it would be unseemly—or even wrong—to pardon those offenders.

But, according to one attorney for a commuted defendant, there was apparently another strain of thinking that went into the commutations—one that rings disturbingly true. According to this person, the defense team’s contacts in the White House say that one reason Trump commuted these defendants’ sentences was to allow them to appeal and overturn their seditious conspiracy convictions. That would erase the stain of these convictions, which otherwise tend to support the view that this riot was an insurrection. Pardoned defendants can’t appeal, since their convictions have been expunged. But commuted defendants can, because they remain convicted—a status that burdens them with potential collateral consequences. (A conviction might bar a defendant from voting, say, or buying a gun, or holding certain jobs.)

One way or another, it seems certain that Trump’s Justice Department will try to wipe clean the slates of the seditious conspiracy defendants, too. It will do so not to remedy any flaw in their convictions, but to protect Trump’s ego from the stench-by-proxy of these near-treason convictions imposed on his most militant supporters. (Within four days after the proclamation, Trump was telling reporters that he would consider full pardons for those he had just commuted.)

But we have not even yet reached the proclamation’s most striking paragraph. The pardons and commutations went to those who had already been convicted and sentenced—about 1,100 people. That left, however, another 170 who had been convicted, but not yet sentenced. Also omitted were another 300 or so who had been charged, but whose guilt had not yet been determined. Of the 300, at least 180, or 60 percent, were charged with crimes against federal police officers—either assaulting them or impeding them during a civil disorder.

Trump wiped out those 470 pending cases—the 300 not yet convicted plus the 170 not yet sentenced—by instructing the Attorney General “to pursue dismissal with prejudice to the government of all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021.”  With these words, for apparently the first time since the Watergate scandal more than 50 years ago, a president was openly ordering his Attorney General to dismiss federal criminal cases in which he had a personal stake. He was shattering the post-Watergate norm of insulating the Justice Department’s exercise of prosecutorial discretion from direct political and presidential interference. (Although Attorney General Bill Barr directed the dismissal of a case against Trump crony Lt. Gen. Michael Flynn, there was no evidence that Trump directed him to do so.)

To ensure that this paragraph in the proclamation was carried out, Trump appointed a new Acting U.S. Attorney for the District of Columbia. He chose Ed Martin, Jr., who had been a Stop the Steal organizer before Jan. 6 and, later, a board member of Patriot Freedom Project, a group that advocates for Jan. 6 defendants. In February 2022, the House Select Committee on the Jan. 6 Attack had subpoenaed Martin to testify and produce documents relating to his role in Stop the Steal. Martin ignored both subpoenas and failed to show. (Martin, through an office spokesperson, declined comment.)  In a social media post a few days after Trump appointed him, Martin characterized his new role as acting as one of “the President’s lawyers.”

Defendant Ryan Samsel was one of the most dramatic beneficiaries of the “dismissal” paragraph of Trump’s order. On Jan. 19—the day before Trump took power—the government filed a 65-page sentencing memorandum seeking a 20-year sentence for Samsel. The government observed there that Samsel had been “the first rioter to breach the restricted perimeter” around the Capitol, and “participated in the first violent assault of officers” that day. (Virtually every factual assertion in a government sentencing memorandum is paired with citations to the sworn testimony, affidavits or exhibits backing it up.) Specifically, at 12:53 pm, he and four codefendants lifted several interlinked segments of a bike-rack barrier at the Peace Circle, just northwest of the Capitol, and toppled them inward onto two officers, creating the first breach and unleashing the riot. The segment of bike-rack barrier that Samsel and a codefendant toppled—which weighed between 25 and 50 pounds each, per testimony—came down on U.S. Capitol Police Officer Caroline Edwards. She fell backwards, striking her head on a metal handrail followed by a concrete step. At Samsel’s trial, Edwards testified that she remembered the “loud clang” of her jaw striking the handrail before she lost consciousness. When she came to, she continued, she was “incredibly confused” & “dazed.” She nevertheless battled rioters for more than an hour, before passing out a second time and being taken to a hospital emergency room. The pain was “absolutely excruciating,” she  testified. “I had to clamp my mouth shut to try to keep from … either screaming, throwing up or crying. It was just horrible. ... It felt like somebody was taking my head and trying to, like, tear it apart.”

For three months, Officer Edwards could only stand up for short periods before getting vertigo or vomiting, she testified. After that, she was well enough to take desk duty. In November 2021, however, she passed out and was taken to the hospital yet again.

In July 2022—nearly 18 months after the riot—Edwards was able to return to full duty. But as of October 2023, when she testified at trial, she was still on medication, she testified, and was getting migraines at least once a month—sometimes once a week. The migraines could last from four hours to two days, she continued. She had not suffered from these before the attack, she added.

Even for this crime, the term the government sought for Samsel—20 years—might seem extreme. It was actually, however, well within his recommended range according to the federal sentencing guidelines. His range was high because of his extensive criminal history. At the time of the Jan. 6 Capitol Siege, he had nine prior convictions and was still on parole for two felonies, according to the government’s sentencing memorandum. Several of his convictions were for assaultive conduct against women. One incident, prosecutors wrote, involved “smashing a hot pizza into his pregnant girlfriend’s face, beating her, pouring a beer over her head, and eventually throwing her into a canal, which he then jumped into, so he could hold her head under water.”

Pursuant to Trump’s proclamation, however, Acting U.S. Attorney Martin instantly sought dismissal of Samson’s indictment, and Samsel’s judge—who had virtually “no power” to overrule a prosecutor’s discretion in this context, according to D.C. Circuit precedent—dutifully granted it.

Another striking beneficiary of the dismissals paragraph of Trump’s proclamation was Edward Jacob Lang. Lang was charged with, among other felonies, eight assaults on police officers, two with dangerous or deadly weapons—including a baseball bat. His alleged assaults occurred at the Lower West Terrace tunnel archway, where some of the worst violence took place on Jan. 6, and where, the government alleges, Lang spent almost two-and-a-half hours that afternoon.

According to a government filing in 2021 opposing Lang’s motion for pretrial release, Lang and another rioter repeatedly shoved a door against the head of Metropolitan Police Department (M.P.D) Sgt. J. M. Later, Lang “repeatedly kicked” M.P.D. Detective P.N., who had fallen to the ground, the government alleges. Still later, at about 4:55 pm, another rioter handed Lang a baseball bat, according to the filing. The narrative continues:

Over the next five minutes, ... LANG repeatedly, and strategically, attacked the officers guarding the Capitol with that bat. Specifically, he can be seen striking the officers with the bat at the following times: 4:54.58 p.m.; 4:56.30 p.m.; 4:56.44 p.m.; 4:57.13 p.m.; 4:57.15 p.m.; 4:57.21 p.m.; 4:57.26 p.m.; 4:57.32 p.m.; 4:58.06 p.m.; 4:58.29 p.m.; 4:59.10 p.m.; 4:59.32 p.m.; 4:59.49 p.m.; 4:59.51 p.m.; 4:59.54 p.m.; and 4:59.58 p.m. These are captured on Exhibit V and Exhibit Y ([body-worn camera] footage from one of the officers repeatedly hit with the bat). LANG only stopped after he was shot with a rubber bullet that hit him in the foot.

His attack with the bat is also captured by videos and photos taken by news media in the area on January 6, 2021 ...

While attacking the officers with the bat, LANG was strategic about his approach, switching from simple swings to a more complex approach where he varied between low swings, overhead swings, and thrusts. (These low swings towards the officers’ legs can best be seen in Exhibit Z, a clip from the [body-worn camera] of an officer behind the frontline officers.) As one of his victims, Officer H.S., noted when interviewed, these varying strikes were more effective. Indeed, Officer H.S. was injured by LANG’s hits to his leg and had trouble standing after he finally got off the front line that night. Officer H.S. limped for days after and the swelling took a month to subside.

In fairness to Trump—given that his goal appears to have been to achieve evenhanded injustice—once he decided to pardon the 1,100 who had already been convicted and sentenced, it became plausible to also dismiss the 470 pending cases, including Samsel’s and Lang’s, inasmuch as these defendants were, basically, just the matching bookends of those who were being pardoned.

Pardoned defendant David Dempsey, for instance, had pleaded guilty to assaulting the same Det. P.N. that Lang kicked while he was down, and the same Sgt. J.M. that Lang allegedly shoved a door against. Dempsey had come to the Capitol on Jan. 6 wearing BulletSafe body armor, according to the government’s sentencing memorandum for him. At the tunnel archway, Dempsey “began a prolonged attack, fighting with his hands, feet, flag poles, crutches, pepper spray, broken pieces of furniture, and anything else he could get his hands on, as weapons against the police. Dempsey’s violence reached such extremes that, at one point, he attacked a fellow rioter who was trying to disarm him.”

In one of his worst assaults, the government’s memo continued, Dempsey deployed pepper spray into the face of Detective P.N. The detective described the attack in his testimony at the trial of another rioter, Kyle Fitzsimons, who was convicted separately of assaulting five officers. Detective P.N. testified in Fitzsimons’ trial as follows:

And during the fighting, a person [i.e., Fitzsimons] ... on the other side grab[bed] my mask, pull[ed] it, while there’s another guy [i.e., Dempsey] ...  to his right lean[ed] forward and spray[ed] me a face full of what I believe to be -- later to be bear spray. ...

So after I got spray[ed] -- and at the same time the person who pull[ed] my mask [i.e., Fitzsimons], let go of the mask, and then it snapped back into place and --

Q. What did that feel like?

A. At that point I was choking under the mask, and I was -- also got knocked down at the same time. And so at that point, I was choking, and I was trying to get up. I [was] panicking. It was so severe that I had to -- I have to -- I was choking. I [was] making that -- that sound (sound uttered by witness). So I have to -- I have to gather myself.

At that point, I -- I have to break the seal to let some air in so that I can breathe. Because at that very particular point when -- when -- when I was choking and got knocked down, in my head, you know, I -- I thought that was -- I thought it was it for me, is that -- I thought that’s, you know, where I’m going to die. And -- and in my head, you know, I was thinking about my family at that point before anything else.

And in my head, I was telling myself, if you want to see your family again, you need to gather yourself. And luckily, you know, I gathered myself and to break that seal. And with the help of my colleague behind me, they pull[ed] me up. And eventually, you know, I made my way back to the back.

Q. In addition to the trouble you had breathing, what did it feel like on your skin and in your eyes?

Q. In addition to the trouble you had breathing, what did it feel like on your skin and in your eyes?

A. It was a burning. It’s burning pretty much the whole day and weeks. Afterward, I made a mistake of, you know, taking a shower when I get home, and because -- to live with, when you take a shower, it -- it go[es] down your body and then it absorb[s] into your skin. And, basically, you know, my -- my hand was -- was tingling, burning for the next week or two afterward.

Rioter Dempsey wasn’t done, though. A bit later, he struck Sgt. J.M. in the head with a metal crutch, as he admitted in sworn admissions at the time of his guilty plea. The sergeant described Dempsey’s attack in a victim impact statement:

Just after 4:00pm, I pushed my way to the front of the police line at the threshold of the tunnel. My helmet was knocked off, but I remained on the line. A rioter [Dempsey] swung an aluminum crutch down on my head with such force that it cracked the plastic face shield of my gas mask. I collapsed and caught myself against the wall as my ears rang. I was able to stand again and hold the line for a few more minutes until another assault by rioters pushed the police line back away from the threshold of the tunnel.

Judge Rudolph Contreras sentenced Fitzsimons—the rioter who was convicted of dislodging Det. P.N.’s mask and assaulting four other officers—to more than seven years’ imprisonment. Judge Royce C. Lamberth sentenced Dempsey to 20 years, the second longest term for any Jan. 6 defendant. Though harsh, Dempsey’s term was, again, within his  federal guidelines range because of his extensive criminal record, which placed him in the most serious of six criminal history categories defined by the U.S. Sentencing Guidelines.

On Jan. 20, within hours of taking power, Trump pardoned both men.

Finally, a conscientious account of these pardons cannot omit mention of the ordeal of M.P.D. Officer Michael Fanone.

At 11:44 pm on Jan. 5, a California man named Daniel Rodriguez texted a Telegram chat group he had formed, called PATRIOTS’ 45 MAGA Gang, according to the sentencing memorandum the government later prepared in his case. The message read: “There will be blood. Welcome to the revolution.”

The next day, after attending Trump’s speech at the Ellipse, Rodriguez made his way to the Capitol’s Lower West Terrace tunnel archway. There, another rioter gave him “a small, black, electroshock weapon,” Rodriguez later admitted in a  sworn statement accompanying his guilty plea.

After more than a half hour of “intense, close-contact fighting,” officers managed to push rioters back to the mouth of tunnel, the government’s sentencing memo for Rodriguez continues. Officer Fanone was at the front of the line. Rioter Albuquerque Head then wrapped his arm around Fanone’s head, and dragged him into the mob, yelling, “I got one,” according to the government’s sentencing memorandum for Head.  

As rioters pinned Fanone down, another rioter, Thomas Sibick, stole the officer’s badge and radio, according to Sibick’s guilty plea admissions. Someone else yelled out, “Kill him with his own gun,” or words to that effect, according to multiple accounts.

Most important, Rodriguez advanced toward the captured Fanone. The narrative continues as follows, according to the government’s sentencing memorandum in Rodriguez’s case. The references to exhibits give the reader a feel for the kinds of proof brought to bear in these cases.

With his electroshock weapon in hand, Rodriguez reached his arm towards the side of Officer Fanone’s neck, landing the device on the side of Officer Fanone’s neck, below the left ear of Officer Fanone’s helmet. See Exhibit 9, Go Pro Video and Exhibit 10, YouTube Patriots Storm. Officer Fanone screamed in pain. See Exhibit 11, Fanone Body Worn Camera, at minute markers 15:19:15-15:19:16. 

Officer Fanone then jerked his head back, recoiling from the shock, and pulled his face away from Rodriguez briefly. Despite Officer Fanone’s efforts to get away, Rodriguez struck again, placing the electroshock weapon on the back of Officer Fanone’s neck, below the “M” of the “MPDC” logo on his helmet. See Exhibit 9, Go Pro Video and Exhibit 12, RF Angle Video. The electrical spark of the weapon rang out (Exhibit 9 at 00:41 and on Exhibit 12 at 00:04), and Officer Fanone screamed again. See Exhibit 11, at 15:19:17- 15:19:21.

On his body worn camera, right after Officer Fanone can be heard screaming at 15:19:17-15:19:18, Rodriguez can be seen, turning away from Officer Fanone. See Exhibit 11, at 15:19:20.

Despite his injuries, Officer Fanone was able to retreat back to the police line at the mouth of the Lower West Terrace Tunnel. He collapsed there, unconscious, at the feet of [Sgt. J.M.], who helped drag his lifeless body to safety inside the Capitol. See Exhibit 7B, [Sgt. J.M.] Body Worn Camera 2, at 15:21:12-15:22:30.

Although Fanone had passed out, his body-worn camera kept running. The government’s sentencing memorandum in Head’s case detailed what that camera recorded:

One of the officers yelled “We need a medic! We need EMTs now!” as Officer Fanone’s unconscious face is slumped over his chest, making it visible in the body-worn camera.

Officers continue to carry Officer Fanone, as his MPD partner arrives and starts talking to Officer Fanone—“Mike, stay in there buddy. Mike, it’s Jimmy, I’m here.”

In the footage, Officer Fanone’s partner opens Fanone’s vest to help him breathe. One officer addresses Officer Fanone—“Come on, wake up, brother. Talk to me man.” Officer Fanone’s partner also continues to try to revive him: “Come on, Mike. Come on, buddy, we’re going duck hunting soon.” Another officer says, “Fanone, Fanone, you alright, brother?”

At time stamp 15:23:32 in the [body-worn camera] footage, nearly two and a half minutes after his initial collapse, Officer Fanone regains consciousness. His first words are, “Did we take that door back?” Officer Fanone then walked outside where a medic performed a medical assessment.

Fanone was taken to a hospital emergency room. Although two pages of details concerning his medical condition are redacted, for privacy, from the public versions of the government’s sentencing memoranda for Head and Rodriguez, unredacted photographs in those documents show the burn marks and scarring on the back of Fanone’s neck two months later.

An hour or so after his attack on Fanone, Rodriguez sent a triumphant message to his Telegram chat group: “Tazzzzed the fuck out of the blue.”

Judge Amy Berman Jackson sentenced rioter Sibick—who pleaded guilty to stealing Fanone’s badge and radio—to just over four years imprisonment. She sentenced rioter Head—who pleaded guilty to dragging Fanone into the crowd, and who, according to the government, had “approximately 45 prior arrests”—to seven and a half years. She sentenced Rodriguez to slightly more than 12.5 years.

Trump pardoned all three men within hours of taking office.

The sampling of cases I’ve described do not overstate the injustice of Trump’s proclamation; they understate it. Of the more than 1,583 people arrested in the Capitol Siege investigation, at least 608, or fully 38 percent, were charged with crimes against federal police officers: either assaulting them or impeding them during a civil disorder. At least 174 of those accused of crimes against police officers, or 29 percent, were charged with the enhanced offense of assault with a dangerous or deadly weapon. According to Justice Department statistics published before the second Trump administration began, the various weapons carried onto or improvised on Capitol grounds included “firearms; [pepper] spray; tasers; edged weapons, including a sword, axes, hatchets, and knives; and makeshift weapons, such as destroyed office furniture, fencing, bike racks, stolen riot shields, baseball bats, hockey sticks, flagpoles, PVC piping, and reinforced knuckle gloves.” (To be clear, no firearms or edged weapons were used to assault officers.)

Finally, at the time Trump took office, prosecutors were still evaluating another 200 potential cases that had been brought to them by the F.B.I., according to Justice Department figures released before the inauguration. About 60 of those files alleged crimes against police officers. Trump’s Justice Department will presumably ignore those, allowing their subjects to escape scot-free, regardless of what they may have done that day. In fact, Trump’s proclamation is so broad that it appears to require dismissal of those who planted pipe bombs at the Republican and Democratic National Committee headquarters that day, should those individuals ever be identified.

To be fair, more than half of all individuals arrested in connection with Jan. 6 were charged only with misdemeanors. (The Justice Department’s Capitol Siege statistics, published monthly until Trump’s proclamation, never broke out the exact figure.) If Trump had pardoned all misdemeanants, and only misdemeanants, there would have been relatively few howls of protest. At times I’ve wondered myself if President Biden should have pardoned these individuals as a sincere step toward reconciliation.

Yet even such a gesture would have been controversial. In March 2022, Judge Lamberth explained in a sentencing opinion why even the misdemeanor cases often merited at least some brief term of incarceration:

Some of the rioters . . . did not directly assault officers. But even . . .  those who engaged in this "lesser" criminal conduct were an essential component to the harm. Law-enforcement officers were overwhelmed by the sheer swath of criminality. And those who engaged in violence that day were able to do so because they found safety in numbers.

In addition, as prosecutors frequently argued in sentencing memoranda for misdemeanor defendants, “No rioter was a tourist that day.” In sentencing one nonviolent offender, Judge Randolph Moss observed:

He then left the Stop the Steal rally and came to the Capitol. As he did so, he had to have seen . . . the mayhem outside and inside the Capitol. He didn't end up there by accident or curiosity. It was obvious, as he approached the Capitol, that he was participating in an ongoing attack.

In addition, Randolph stressed, this was a historic attack: 

[D]emocracy requires the cooperation of the governed. When a mob is prepared to attack the Capitol to prevent our elected officials from both parties from performing their constitutional and statutory duty, democracy is in trouble. The damage that [the defendant] and others caused that day goes way beyond the several-hour delay in the certification. It is a damage that will persist in this country for decades.

So a blanket pardon for all misdemeanor defendants would have been controversial. But what Trump did here—a blanket pardon for those who assaulted police officers with dangerous or deadly weapons; for those who assaulted members of the media; for those who smashed the windows and doors of the most recognized symbol of our democracy; and for those who, as the relevant clause of the seditious conspiracy statute reads, conspired to oppose by force the authority of the government of the United States—was beyond beyond.

It was indefensible, unconscionable, and—for those Americans who understand the meaning of the word—unpatriotic.