Trump pardon comment could complicate January 6 prosecutions

When former President Trump dangled possible pardons for some of the participants in the January 6, 2021 assault on the U.S. Capitol, it complicated the plea negotiations and prosecutions of some of the 730 individuals facing federal charges over their involvement.

“If I run and if I win, we will treat those people from January 6 fairly,” Trump said Saturday night during a rally in Conroe, Texas. “And if it requires pardons, we will give them pardons because they are being treated so unfairly.”

On the day that Joe Biden’s victory over Trump was to be affirmed by Congress, thousands rushed the Capitol, assaulting police officers who were trying to protect the Capitol, breaking in by forcing open doors and shattering windows, vandalizing the Capitol, invading lawmakers’ offices and threatening them and their staffs.

The Justice Department and defense attorneys have revealed they are in plea negotiations in a growing series of January 6 cases, including cases involving high-level defendants. With the former president’s recent comments, there is the possibility of reduced leverage in any case in which defendants think they might obtain an 11th-hour reprieve from Trump. Those who are being tried for seditious conspiracy could face a maximum sentence of 20 years if convicted, so these defendants might still be in prison, if Trump were to run and win in 2024.

But federal judges were already taking the former president’s rhetoric into account, declining to release some defendants before trial because they were concerned that his persistence in falsely insisting that the 2020 election was stolen from him made those defendants a continuing threat. So far, about 10% of the January 6 defendants charged are in pretrial detention.

In May, Judge Amy Berman Jackson rejected the request for release by January 6 defendant Karl Dresch, concluding that his promise “to take action in the future cannot be dismissed as an unlikely occurrence given that his singular source of information,…(‘Trump’s the only big shot I trust right now’), continues to propagate the lie that inspired the attack on a near daily basis.” Dresch’s case has since been closed. 

It’s been over a year since the assault on the Capitol, and none of the January 6 defendants have been tried. Just five cases are expected to go to trial in late March, a Justice Department official told CBS News.  

The Justice Department is hampered by a number of problems. Because of COVID-19 risks, the D.C. federal courthouse remains closed to jury trials through the first week of February. Although hearings may be virtual, trials must be held in person inside the courthouse, a short distance from the U.S. Capitol. 

The department has also been inundated by evidence. It recently said there are 14,000 hours of Capitol surveillance video, 250 terabytes of data and more than 200,000 tips from the public.

Several defendants have already invoked Trump in their defense. But there are also many who have expressed  contrition and later said they were embarrassed by their participation in the rioting.

Leonard Gruppo, a former Special Forces medical sergeant, wrote a long single-spaced letter to the court to claim he had been  “caught up” in the mob. “I trusted the President and that was a big mistake,” Gruppo said. He was sentenced to 24 months probation with 90 days of home detention, $500 restitution and a $3,000 fine. Some 85% of those charged have pleaded guilty for misdemeanors like illegally entering the Capitol.

Those facing more serious charges like conspiracy, including members of white nationalist groups like the Oath Keepers and Proud Boys, have not yet said publicly whether or how the former president’s most recent comments will affect their defense. 

Rob Legare contributed to this report.