The Situation: Why the Jan. 6 Pardons Won’t Work

The Situation on Friday said goodbye to a genuinely decent man who had earnestly sought to do justice.

 And now, as Maurice Sendak might put it, let the indecent rumpus start.

 I could write this column today about the indecency of pardoning more than a thousand people convicted of crimes related to the Jan. 6, 2021 insurrection, making the point that this sort of indecency is really, really bad—but that’s obvious.

 I could write instead about the Kafkaesque nature of beginning a presidential proclamation on the subject of these clemency actions by describing the Jan. 6 prosecutions, many of which involved violent felonies, as “a grave national injustice”—but that’s also too obvious to spend any time on.

I could write about how the president’s proclamation, which also “direct[s] 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,” constitutes a dramatic and overt presidential intervention in a series of ongoing criminal cases of precisely the sort that would normally provoke scandal. But that point too is obvious. Who needs to hear more about the investigative independence of the Justice Department?

I could write about how police officers were badly injured in the melee, how some died, how careers were upended, how people were tazed—all for the iniquitous crime of defending the Capitol, which is to say, doing their job on behalf of the public and the national legislature. And I could point out that the man who has freed their attackers yet dares to speak in the name of law and order and backing the blue and toughness even as he immunizes lawlessness and mayhem. But that point is obvious, painfully so, as well.

I could point out that creating impunity for the people who effectuate political violence on one’s behalf is the surest way to ensure that such people will, in fact, effectuate political violence on one’s behalf—that providing cover for one’s thugs is an essential component of having an army of thugs at one’s disposal. But that point makes itself. It is the whole purpose of the action.

And I could point out that this use of the pardon power is really just the scaling of this president’s prior uses of the same power—in the cases of Paul Manafort and Roger Stone—to protect people who stayed mum on his behalf. That it’s the same activity, using clemency to help those who commit crimes on the president’s behalf, and that it’s exactly what a mafia don does to protect his people, save that this time it’s violent crimes, even seditious crimes, and it’s on a grand scale. But this point too is obvious to anyone who has chosen to have open eyes over the past eight years. 

I might point out that this is the most self-interested and corrupt use of the pardon power ever by any president—that it renders Joe Biden’s outrageous preemptive pardons of a bunch of his family members earlier in the day almost quaint, and the actions by many other presidents to help their political supporters seem positively public-spirited by comparison. One struggles to think of a time when a president has used the clemency power on a mass scale to reward political violence that he stoked and directed at a coordinate branch of government to keep himself in power in the face of the clear result of a fair election he had lost. But what’s the point? This is obvious to anyone who has not chosen to believe hogwash about what happened in the wake of the 2020 election and on Jan. 6, 2021.

I could focus on the words in the proclamation, which presumes to speak in the name of “begin[ning] a process of national reconciliation.” And I could point out that this is a particularly ugly reference, conscious or not, to Alexander Hamilton’s words in Federalist 74, in which he wrote that the president's clemency powers are particularly important when, “in seasons of insurrection or rebellion there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.” I might point out that Hamilton was referring to situations in which the president is trying to quell a rebellion, not a situation in which the president has inspired and encouraged the rebellion and now has the opportunity to reward his followers who took his cause with violence. I might point out that “a process of national reconciliation” does not generally involve reconciling with one’s own side in the fight, and that Trump’s order does nothing to reconcile with the injured police officers, the terrorized members of Congress, or the public with whom he so actively broke faith. But who needs to have pointed out the insincerity of the national healing the proclamation promises? It positively oozes off the page.

And finally, I might point out that nobody should be surprised by this indecency, for it was one that Trump promised over and over and over again throughout the recent presidential campaign. Indeed, he promised these pardons so often that it would have been a breach of trust with his voters to have acted with a modicum of decency and reneged on his promises. But that point is obvious to anyone who listened to any one of the dozens of speeches and interviews in which the subject came up during the campaign. 

The truth is that I have almost nothing non-obvious to say about the president’s action—just one thing, really. 

It all won’t work.

Oh, the president might accomplish a short-term goal. He has rewarded his friends. And he has thus shown others that he will protect them if they commit crimes or take risks for him. He has put the power of the United States federal government behind the patent lie that the prosecution of Jan. 6 rioters was an injustice requiring remedy, which is all part of the larger lie that the prosecution of Trump himself was political. And that–in turn–is all part of the still-larger lie that the 2020 election was stolen from him. So sure, he has thrown some dust in the air. 

 But if the long-term goal is to erase the ugly history of what happened in 2020 and 2021, to change Trump from the perpetrator into the victim of the crime, it won’t work. Pardoning those convicted, after all, doesn’t erase the records of what they pled to. It doesn’t erase the evidence presented to juries about what they did. It doesn’t erase their own copious social media boasting about it all. Just as Trump can’t change the truth about his own conduct by getting elected and getting the cases against himself dropped and projecting his own goals for weaponization of the Justice Department onto the prior administration, he cannot change either the truth about what his followers did—though he can wipe out the consequences for them.

 In this sense, the pardons are a mug’s game. Nineteenth century legislators in Indiana could try to assign a rational value to pi by force of law, but the value of pi remained stubbornly unchanged—and irrational. Evolution and climate change don’t care much whether school boards or policy makers believe in them. And neither does the truth about what happened on Jan. 6. It will live in the records of the Jan. 6 Select Committee. It will live in the records of the prosecutions, including of Trump himself. It will live in a whole lot of journalism, both from the time and in retrospect—including on this site. It will live in the history books. And it will live in the memory of everyone who chooses not to suppress their memory for political reasons.

 In the end, a president can frustrate justice, but he can’t change the truth.

 The Situation continues tomorrow.