Lawfare Daily: Former Deputy Chief of the Justice Department's Capitol Siege Section Alexis Loeb on President Trump's Pardons

[Intro]

Alexis Loeb: The pardons undermine the rule of law. This was an attack on the peaceful transfer of power. The pardons send a message that it's okay to commit violence, if you're committing violence on behalf of the right person. And I think that the pardons all make us less safe today. They make America less safe today.

Roger Parloff: It's the Lawfare Podcast. I'm Roger Parloff, senior editor at Lawfare. And I'm with Alexis Loeb, who was deputy chief of the January 6 Capitol siege prosecutions.

Alexis Loeb: Of course, the cases involving individuals who committed violence — I'm, I'm worried about those, and I'm worried about what those individuals will do in the future, although I, again—I hope they, they take this opportunity to have a real second chance and live the rest of their lives differently.

Roger Parloff: Today we're talking about the nearly 1,600 defendants prosecuted by her unit and Trump's day one pardons and commutations of basically every single one of those individuals.

[Main Podcast]

So Alexis, you were—until October—deputy chief of the Capital Siege section of the U.S. Attorney's Office for Washington, D.C., the unit that prosecuted all the crimes arising from the riot on January 6, 2021.

On day one of his second term, President Trump wiped out all of your work, basically. And he referred to it as a grave national injustice perpetrated upon the American people over the past four years. Do you care to comment?

Alexis Loeb: Thank you, Roger. It's, it's good to be with you. First of all, let me just give one caveat, which is that I am only speaking for myself here and I'm no longer with the Department of Justice.

President Trump did not wipe out all of my work or all of the department's work. That's because the prosecutions created an enormous factual record, and that record still stands. Even a defendant convicted only of misdemeanors, for example, the government filed sentencing memos that could span 20 pages detailing that individual's conduct. So even if the verdicts are erased and the sentences are commuted, that factual record will be there.

I would also note that in these cases, in addition to the sentencing memos, when the government arrested defendants, for most of them, the government issued a complaint that included pages and pages of facts detailing what those defendants did, and that's not going away either.

That being said, the pardons were disturbing on, on multiple levels. And that's not because I feel like it was wasted effort on my part or the department's part. I have no regrets about the work I did. And I'm very proud of the work that others did. But the pardons are disturbing for a few different reasons, which I'd, I’d be happy to go into.

Roger Parloff: Sure. Please, please do.

Alexis Loeb: First of all, the pardons are a blow to the victims, the officers who faced down a crowd of thousands of their fellow citizens attacking them—many with all sorts of makeshift weapons and traditional weapons—officers who were just trying to do their job and who were trying to protect Congress and the peaceful transfer of power. The pardons are a blow to the sacrifice that all those officers made.

And, and in addition to the officers who were victims of the attack, there are also the officers who testified at these trials, sometimes, for some officers, in trial and trial after trial. And those officers relived, minute by minute, what that day was like for them, and it was very clear through their testimony that it was a terrible day. Many of them lost friends. It affects everyone differently, but there were many officers who years later were still affected by the attack. And they came forward to tell their story over and over, subjected themselves to cross examination, attacks on their credibility, attacks by the public.

You know, beyond the end of the officer victims piece of it, of course, the pardons undermine the rule of law. This was an attack on the peaceful transfer of power. The pardons send a message that it's okay to commit violence if you're committing violence on behalf of the right person. And I think that the pardons all make us less safe today. They make America less safe today.

You know, the pardons are also difficult because this was not a political prosecution. These prosecutions were staffed by career prosecutors like myself, many from across the country, all different kinds of backgrounds, working in partnership with FBI agents.

And, you know, when, when politics did come up I can just say that people of all different political persuasions work together on these prosecutions, career public servants. And the reason I did that, the reason many of us I think did that, was that we saw an enormous crime that was committed. And the facts on the ground indicated that an enormous crime had been committed. And we just wanted to follow the facts and do the right thing.

Roger Parloff: Let me orient the listener a little bit. Tell us about your involvement. So where were you on January 6? And when did you get involved in this project?

Alexis Loeb: On January 6, I was an assistant United States attorney. Again, it's a career prosecutor with the U.S. Attorney's Office in San Francisco, which is part of the Department of Justice. And actually on January 6, I was not at work. I was on maternity leave because I had recently had a baby, and I was planning to remain on leave for a little while longer.

But Roger, when, when I heard the attacks on the radio, and saw them on TV, and then the department put out a call for prosecutors around the country who might be willing to join in the effort to hold people accountable, I felt like it was just something I, I couldn't say no to. It was, it, it was such an attack on the country that I felt like I, I had to throw my hat in the ring and do what I could.

So I joined the effort in about February 2021. So about a little over a month after the, after the attack.

Roger Parloff: And then you came out to D.C. and, and were you seconded to the U.S. Attorney's Office here?

Alexis Loeb: Exactly right. For about the next three and a half years, I was what we would call detailed to the U.S. Attorney's Office in D.C.

Roger Parloff: And that U.S. Attorney was a Trump appointee at that point.

Alexis Loeb: You know, I, I would have to check the exact date that it switched over from Michael Sherwin to Channing Phillips, who was the acting U.S. attorney until Matt Graves came in. But it's absolutely correct that the prosecution started under a Trump appointee.

Roger Parloff: And I want to address that part of his proclamation, Trump's proclamation, that called this effort a grave national injustice perpetrated upon the American people over the past four years.

That's an attack on the prosecutors. It's also, and you've, you've explained who they were. I regard that as an attack on the judges as well. Tell us about the judges handling these cases.

Alexis Loeb: The judges handling these cases were appointed by many different presidents of both parties, and there were several judges appointed by President Trump. And all of the judges convicted defendants for their crimes on, on January 6. And in fact, many of the defendants opted to have their case tried by judges. So judges were the ones rendering verdicts in many of, many of the cases.

One type of claim that is kind of commonly aired about the prosecutions is, well, what about people in Portland? What about Black Lives Matter protesters? And it was actually two judges appointed by President Trump, Judge McFadden and Judge Nichols, who wrote two of the early opinions, finding that really those comparisons didn't hold water because, for different reasons, but essentially because the attack on the Capitol was so singular and so much of a threat and, you know, the scale of violence targeting Congress in broad daylight was, was just unmatched.

Roger Parloff: And incidentally, I, I, I wrote an article fairly early on. It was January 2023. I compared the outcomes in the jury trials and in the bench trials, the judge trials. And at that point, I did it by count, and 89 percent there was an 89 percent conviction rate in front of juries, and an 88 percent conviction rate in front of judges.

And of course, the judges—because of self selection—they tended to be the Republican appointed judges and particularly the Trump-appointed Trevor McFadden. At that point, at least, it didn't seem to make any difference. I can't vouch that, that, those numbers—I haven't done it again since then.

Alexis Loeb: And Roger, for me, that raises another noteworthy part of the pardons, which is what are they actually erasing? And one of the things they're actually erasing are the verdicts, and those, the verdicts are the moments when juries of ordinary citizens and judges—who have as we've been talking about, were appointed by both parties—kind of pronounce, you know, this is, this is the truth of what's happened. the government has proven its case beyond a reasonable doubt.

So I think that is another kind of difficult aspect of the pardons is that it's this attempt to wash away a moment of truth telling so that then what's left are, you know, the arguments on both sides. I mean, I'm, I'm hopeful that the government, especially through the testimony of officer witnesses and unprecedented amounts of video has put together a factual record that will stand the test of time, but there is a loss when those, those verdicts, the voice, what is lost are the voices of ordinary citizens in the process and also the judges.

Roger Parloff: Vice President Vance, you know, as recently as January 12 had mentioned that, that obviously those who committed violence shouldn't be pardoned. And then he, there was some negative feedback and Kyle Cheney writes about this in Politico. And then shortly thereafter, he began to backtrack and he said, I assure you, we care about the people unjustly locked up. Yes, that includes people provoked. That includes people who got a garbage trial.

How does that make you feel when the vice president describes these as garbage trials?

Alexis Loeb: It seems completely contrary to the facts on the ground where the defendants did get due process. And you know that—due process isn't just the fact that they got a trial. It's–you referred to defendants being held; for any defendant to be held in jail pre-trial, a judge had to find by clear and convincing evidence that they were a danger to the community or by a preponderance that they were a risk of flight. And that defendant would have multiple levels of appellate rights, for example.

And one of the D.C. Circuit’s early decisions in the January 6 cases actually kind of circumscribed and set forth guidance about pretrial detention, particularly in the January 6 context, and then the, the department, of course, it followed the, followed the appellate court's guidance. So it just doesn't ring true at all to anyone who has actually seen these trials, seen the amount of evidence, read the filings and seen these cases unfold.

Roger Parloff: Yeah, I think that some people that are out there and, you know, somewhat with some justification might say, well, D.C. was, is an unusual jurisdiction, more than 90 percent of its residents voted against Trump in 2016 and in 2020 and also in 2024. In fact, what could you tell them is—were these juries biased? Or what would you tell them about that?

Alexis Loeb: I would say that that was an issue that many defendants raised and that across the board judges rejected, citing precedent going at least as far back to the Watergate scandal when the D.C. Circuit found that, when addressing the issue of whether trials related to Watergate could go ahead in the District of Columbia, where, of course, many people have strong feelings about that.

And the line of reasoning from those cases that continue through to the January 6 cases—including in a recent D.C. Circuit opinion in in the Webster case—is that this is really what voir dire is for. And sometimes the judges would spend days picking a jury examining one by one each juror's biases and feelings about January 6, their connections to the Capitol, their feelings about the defendants to make sure that these were jurors who could set aside their feelings, or set aside if, if assuming that the juror did have some sort of preconceived notion about January 6 that the juror could decide the case based on the evidence.

The lawyers from both sides had the chance to ask follow up questions, and then in addition to the court and the lawyers for both sides identifying jurors who really seemed like maybe this wasn't the right trial for them to sit in, both sides had peremptory challenges where they basically have discretion to, to remove jurors. And in, in the criminal, the federal criminal system, the defense has more peremptory challenges than the prosecution does.

And Roger, if I could just return to a point you'd made earlier, the idea that, that the, the claim that many of these defendants were provoked. The law allows for that possibility. The defendants and several defendants could go to trial and say, you know, the police provoked them, the police attacked them first, or they were trying to defend other people from being attacked by the police, there was a jury instruction, the law has established elements, the elements of that defense.

So defendants were able to, to bring that defense, it's just that over and over again, juries and judges rejected that defense. And they saw who really were the first aggressors here in those trials and, and I think they found that it, it was the, it was the defendants.

Roger Parloff: Also in the president's pardon proclamation, he said that these pardons would begin quote a process of reconciliation. Are you optimistic that these pardons will be a process of reconciliation?

Alexis Loeb: It seems difficult to see how there will be a process of reconciliation when it appears to be entirely one-sided. So I think if you look at other processes of reconciliation, often there is acknowledgement of wrongdoing and then a process of forgiveness after that. And I don't see any of that happening here.

Of course, it is my hope that defendants who claim that their intentions were nothing but peaceful and that their sole motivation was patriotism—of course, I, I hope that now that they've been pardoned, they are able to use that opportunity to live, you know, productive, peaceful lives. But it's hard to see how this kind of one-sided pardons—you know, without any recognition of the harm to the country–really represents a true reconciliation process.

Roger Parloff: One of the pardoned defendants, Enrique Tarrio, who was head of the Proud Boys at the time, after his release—I think maybe the 21st of January—was speaking to, being interviewed by Alex Jones.

And he said, they didn't care about the evidence, they cared about putting Trump supporters in prison. Well, now it's our turn. Now it's our turn. I'm happy that the president's focusing not on retribution and focusing on success, but I will tell you, I'm not going to play by those rules. The people who did this, they need to be, they need to feel the heat. They need to be put behind bars. They need to be prosecuted. Dot, dot, dot. They need to be imprisoned. Dot, dot, dot. They need to pay for what they did.

That doesn't sound like reconciliation to me. Are you concerned about retribution against either your colleagues or officers or other witnesses in these cases?

Alexis Loeb: I would agree that that does not sound like reconciliation to me either. And again, those remarks don't at all match the facts on the ground, and I'd be happy to address that.

But in terms of, of retribution, I don't have a crystal ball. I would say that it's—becoming a prosecutor, I think it's, it's sort of a risk that is there in prosecuting any, any range of cases. You know, it's not, it's not limited to, to January 6. Fortunately it is not something that has occurred frequently.

And if there is a desire to have a narrative of reconciliation, of course, retribution or responding with prosecutions or investigations would be completely antithetical to that. And I'm not a politician nor am I a mind reader, but from what I've read, it does seem like the pardons, particularly for those who assaulted police, have been deeply unpopular.

So I would have to think that an effort continues to, you know, keep the focus on that and targeting people who were trying to protect police officers or the police officers themselves would be deeply unpopular as well.

Roger Parloff: The mechanics of the proclamation were a little unusual. 14 people got commutations and the rest got pardons and it wasn't entirely clear to me what thinking went into that. The 14 were, were people that had been charged with seditious conspiracy, but not necessarily convicted.

I don't know if you've looked this closely, but people like Tom Caldwell, who was acquitted of seditious conspiracy and sentenced to 53 days time served, got a commutation and Enrique Tarrio, who was convicted and got 22 years, he got a full pardon. Am I missing something?

Alexis Loeb: No, Enrique Tarrio did seem absent from the list that otherwise included the other members of the Proud Boys who were in the same seditious conspiracy trial with him and were convicted of many of the same crimes.

Roger Parloff: Yeah.

There was one other part of the proclamation that it's worth mentioning, the commutations and the pardons go to people that have been convicted. Then he goes on and he says, he directs the attorney general to pursue dismissal with prejudice of all pending indictments, pending indictments. So these are cases where you haven't had, either you haven't had a, you haven't had a verdict, or you haven't had a sentence. And there are about three—the DOJ previously said there were about 300 of these, 180 of which involved either assaulting or impeding police officers.

Now, I can't remember, since Watergate, a president ever directly interfering with a prosecution, telling people to drop a prosecution. I think Bill Barr directed that Mike Flynn's prosecution be dropped, but I don't think that was traced directly to Trump. Are you aware of a president directing that prosecutions be dropped, especially prosecutions that are sort of linked to him?

Alexis Loeb: You know, I, I would say here that my, my experience has been limited to my 11 years in the Justice Department, and I, I personally cannot remember seeing this before. You know, let alone when you start to talk about the scale of this and, the, the sweeping nature of it.

And I'm, I'm not a, I'm not an expert in pardons, but traditionally pardons have been used for people who had often served a very long time in jail, served a significant amount of, of their sentence. Not people who had not yet been convicted

Roger Parloff: And showed remorse.

Alexis Loeb: Yes.

Roger Parloff: Yeah.

Alexis Loeb: It was more of an, you know, an act of, an act of clemency often in recognition of remorse or rehabilitation.

Roger Parloff: Yeah. Are there cases that worry you most? Or maybe categories of case that worry you most?

Alexis Loeb: I don't think this will come as much of a surprise but of course the cases involving individuals who committed violence, I'm, I'm worried about those and I'm worried about what those individuals will do in the future.

Although I again, I hope they take this opportunity to have a real second chance and live the rest of their lives differently. I'm worried about some of the members of organized groups who may now begin to organize again. I would say that those, those are the two main categories that I'm more worried about.

Roger Parloff: I think maybe yesterday or the day before Trump appointed a new acting U.S. attorney for the District of Columbia, his name is Ed Martin Jr. Is that a name you're familiar with?

Alexis Loeb: Only from, only from the news reporting about it.

Roger Parloff: Okay.

Alexis Loeb: And if I could just clarify something I said earlier, when I said that I was concerned about organized groups, what I mean is organized groups who have, have embraced violence as, as part of their ideologies.

So, no, I'm, I'm only familiar with Mr. Martin from the news reporting, which, you know, I think raises, raises a point though—in response to Mr. Tarrio's comments about suggesting that these prosecutions went after Trump supporters. The news reporting indicates that Mr. Martin was at the Capitol on January 6 and Mr. Martin, of course was not charged.

And that's because in many different ways, the department. exercised its discretion and the department did not charge everyone who was at the Capitol. It did not charge people who were at the Capitol, even if they were in the restricted area, and perhaps the government could have proven the elements of the trespassing statute. Of course, there were thousands of Trump supporters who attended the rally at the Ellipse, and they were, were perfectly free to do that and they weren't charged either.

So the idea that the government was trying to go after Trump supporters rather than, than following the facts is, is just completely contradicted by the prosecutions in this case and the facts of those cases.

Roger Parloff: Okay, and just for listeners to fill them in, it's been reported that Mr. Martin was a Stop the Steal organizer and subsequently became a board member of the group, I forget what it's called, something like Patriot Freedom Project, sort of a group that lobbies or advocates on behalf of the defendants that have been convicted or detained.

And also to explain–the, the trespass, federal trespass statute, you know, literally would encompass the perimeter of the Capitol that day. You don't have, you would—you would violate it if you trespass the perimeter, you wouldn't have to enter the building.

In reality, it was not charged almost ever, correct me if I'm wrong. I think there were three cases maybe, but almost exclusively you had to enter the building or you committed some other crimes and then and then and then you were charged. And, and I think the recent figures provided by the DOJ were that at least 400 cases were declined—people that could have been prosecuted for that misdemeanor, but did not commit violence, did not enter the Capitol.

Alexis Loeb: The perimeter also was not just a line on the map. It was a perimeter with fencing. And in fact, there were many layers of fencing. Even once you got inside the outer perimeter, there was also signage on the fencing saying area closed.

Roger Parloff: Right, and there was OC gas wafting over and there were, there were a lot of hints.

Alexis Loeb: And the government had to prove in those cases that each individual knew that they didn't have permission to be where they were and that they were there anyway. And in at least one early case, Judge McFadden found that the government hadn't proved that and he acquitted that defendant.

But in the overwhelming majority of cases, of course, the juries and judges and defendants themselves admitted that they knew they weren't supposed to be there. They knew it was off limits and they were there anyway.

Roger Parloff: You handled some Proud Boys cases yourself. Can you describe any of those?

Alexis Loeb: Certainly, I was one of the prosecutors who worked on the, the trial of an individual named Christopher Worrell and his co defendant, Daniel Scott, who who actually, who pleaded guilty and did not go to trial.

Roger Parloff: Daniel—milk, milkshake—Scott,

Alexis Loeb: His nickname was Milkshake. Yes. Yeah.

Roger Parloff: Pretty important figure really.

Alexis Loeb: Yes. And what, what Daniel Scott admitted was really in one of the pivotal moments of the riot, he was a key–if not the key instigator. So what happened was there was a line of Capitol Police on the West Front guarding a set of stairs that went up to a landing that actually led to doors into the building that ended up being the very first doors breached by the rioters at about 2 p.m. that day.

And Mr. Scott kind of rushed forward and—he's, he's not small. He, he rushed forward and essentially body slammed two officers and then the crowd rushed forward behind him and up the stairs and, and from there made their way inside the building.

He and Mr. Worrell—and let me be clear here, I'm just talking about, I'm talking about publicly available facts here from Mr. Scott's plea agreement, the sentencing memoranda, and what the facts showed at trial. Mr. Worrell and Mr. Scott were both members of the Proud Boys from Florida and Mr. Worrell came to the Capitol that day with pepper gel, which is, it's like pepper spray, but the delivery mechanism is a gel and not, not a spray.

And Mr. Worrell used pepper gel against the police. And then from there, he moved to the area where Mr. Scott committed the assault that I just described. And he, along with several others, have celebrated that assault on the police and the mob's progression forward.

Mr. Worrell elected to have a bench trial.  That bench trial was before Judge Lamberth, who was also an appointee of a Republican president. Judge Lamberth, convicted Mr. Worrell of all counts, including assault on the police with a dangerous and deadly weapon.

Another interesting thing about Mr. Worrell's case is when you're convicted of assault with a dangerous and deadly weapon, usually upon conviction, if you aren't already, in jail, you're supposed to be detained immediately. The statute doesn't give judges a lot of wiggle room. Judge Lamberth decided to let Mr. Worrell remain out pending his sentencing in a few months, and Mr. Worrell then absconded and it took several more months before the FBI was able to find him. And, and at that point he was sentenced.

Roger Parloff: Incidentally—and again, correct me if I'm wrong—you mentioned that it was a pepper gel instead of the ordinary spray. I think that the gel is harder to get out of your eyes. It sticks. At least this is the testimony I've heard from, from officers. Does that sound right?

Alexis Loeb: I think that does sound right. In, in Mr. Worrell’s trial, the government had a toxicologist expert testify about the effects, the effects on the cardiovascular system and, and the lungs, and of course the skin and the eyes.

And there was also a training sergeant from the Capitol Police who testified. And part of becoming a trainer, and in fact, part of becoming an officer is, is getting sprayed with pepper spray during the training. And he was able to describe very vividly how being pepper sprayed to him felt like. I think at one point he used the phrase lava tipped spears being poked into your eyes, which just painted a very vivid picture. And that's in a controlled setting when we're, you know, in, as part of a training exercise, which just painted a vivid picture of, of how severe pepper spray can be for some individuals.

And then you, you couple with that, of course, with the fact that, that pepper spray and pepper gel were being used in the middle of a riot and so it, it's particularly dangerous because it's being sprayed at officers who are trying to defend themselves against threats from all sides, from people throwing things at them or rushing at them.

So, you know, even if they didn't feel immense pain from the pepper spray itself, it left them very vulnerable. And we saw this—another officer actually testified to a moment where some other officers got sprayed and kind of grabbed onto some of the fencing and then started to get dragged into the crowd and had to be rescued.

Roger Parloff: Yeah, to be blinded in a violent mob must be a frightening experience. By the way Worrell got, if I'm correct, about ten years, and of course he has been pardoned. Full pardon.

Alexis Loeb: And that ten years was below the sentencing guidelines recommended. So he got less of a sentence than what, you know, the sentencing guidelines would say should be the sentence for someone like him who, you know, assaults, assaults an officer using a deadly or dangerous weapon.

Roger Parloff: And maybe one last detail from his sentencing memo that lodged in my mind. He had some prior convictions that I think were too old to count in terms of the sentencing guidelines, but one of them was sort of disturbing and was mentioned, a couple. But he was, it was for impersonating a police officer. He had allegedly flashed a badge and tried to pull over a woman who was alone on the highway and there were handcuffs and weapons in his vehicle.

You also prosecuted Joseph Fischer who was—well you tell us it had to do with 1512(c)(2), 18 U.S.C. 1512(c)(2). This was the corrupt obstruction of an official proceeding, and it was his case that the Supreme Court eventually overturned. Were you blindsided by this argument? Did you see it coming? Tell us about that.

Alexis Loeb: So I, I can't kind of talk about an internal to the DOJ what we did or did not see coming. So I, I can say that it was a very long litigation process where—I think in the summer of 2021, maybe even the spring—defendants started filing motions to dismiss this charge, obstruction of an official proceeding, and arguing that it didn't apply to their conduct, which was storming the Capitol.

So the litigation had been going on for a long time, but before Judge Nichols, who was the district court judge in Fischer, agreed with the defendant's interpretation of the statute, all of the other district judges—again, including judges appointed by both parties—had agreed with the government that really the plain language of the statute, which criminalizes whoever obstructs an official proceeding in any other manner, the other judges had all found that it applied and had written very long, thoughtful opinions about that.

Roger Parloff: Okay. Well, is there anything I haven't asked that I should have asked?

Alexis Loeb: I just want to say that I am enormously proud to have contributed to the prosecutions, and I'm very proud of the work of my colleagues at the DOJ and the FBI. And it really is my hope that the incredible unprecedented factual record that we built will be something that people will look to for years to come to understand what really happened on that day, as proven in court.

Roger Parloff: Alexis, thank you for your service and thank you for your time.

Alexis Loeb: Thank you very much, Roger. Nice speaking with you.

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