John Jefferson
Cities burned during 2020’s “summer of love” and almost no one faced criminal charges, much less prison. Months later, the DOJ found sudden initiative—and even hired slews of new lawyers—to prosecute January 6 protestors and make an example of Trump supporters. They have been highly efficient in this work, and more than 1,500 Americans have been convicted on criminal charges. Six hundred and forty five were sentenced to time in prison and an additional 150 were ordered to home detention. All face the social and professional stigma associated with criminal convictions, on top of the lost time with loved ones, stress, and considerable financial costs of legal defense.
January 6, 2021 has proven to be one of the most divisive events in American history. While Democrats view it as the ultimate expression of Trump’s populism—a violent attack on the Capitol—supporters of the President-elect argue that it was a peaceful protest gone wrong, during which the government turned its fire on Americans exercising their constitutional right of assembly. One of those killed was Ashli Babbitt, who was shot at short range in what many considered an extralegal execution. Babbitt was a formidable but slight woman, was obviously unarmed, and did nothing to suggest she posed an imminent threat to others.
The politicized prosecution of the January 6 protestors has driven further vindictiveness as Americans became divided about how to respond to the protest, especially given the clemency that was meted out by Democratic prosecutors to violent rioters pushing various leftist aims in 2020.
At a campaign rally, President Trump promised that “the moment we win, we will rapidly review the cases of every political prisoner unjustly victimized by the Harris regime, and I will sign their pardons on Day One.” Given his nearly unlimited pardoning powers, Trump can quickly act on this promise. The President wisely qualified his promise stating, “I can’t say for every single one, because a couple of them, probably they got out of control” but he nonetheless affirmed that he would largely work to remedy unjust prosecutions.
Trump’s commitment to pardoning “political prisoner[s]” likely extends beyond January 6 prisoners to other people unfairly imprisoned by the Biden-Harris regime, such as pro-life activists. Such prisoners, prosecuted under dubious limitations of core constitutional rights, must be released if the nation is to heal.
Trump’s swift action to pardon political prisoners would accelerate the delivery of justice in conformity with broad public opinion and even the slow action of the judiciary. Indeed, the Supreme Court, in Fischer v. United States articulated the high bar for establishing convictions on certain felony charges related to disrupting government proceedings and clarified that most of the politically motivated January 6 prosecutions fail to meet this bar.
Trump’s exercise of the pardon power would similarly conform with historical precedent. For the sake of national unity, George Washington pardoned the two leaders of the Whiskey Rebellion—an actual violent insurrection—who were convicted of treason and were sentenced to death. At his State of the Union Address, Washington said that it was important to exercise firmness in carrying out the law, yet “it appears to me no less consistent with the public good…to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.” The Whiskey Rebellion was a violent tax revolt that lasted from 1791 till 1794 in response to the first domestic tax in the United States. To prevent a civil war, Washington was forced to lead an army of 13,000 troops to suppress the rebellion. Yet Washington understood that the nation’s democratic future depended on national healing and his exercise of the pardon power.
As the Civil War raged, President Lincoln issued hundreds of pardons to political prisoners arrested for discouraging enlistment or expressing confederate sympathies, and even pardoned captured confederate soldiers. After Lincoln’s untimely death, President Johnson clashed with the Republican congress by building on Lincoln’s pardoning practices. At the cost of his own political viability, Johnson issued more than 15,000 pardons, including a blanket pardon to all former confederates, so that the nation could move forward in unity, unencumbered by the rancor of the recent war.
President Carter similarly campaigned on, and delivered, unconditional pardons to the Vietnam draft dodgers. Carter delivered these pardons to hundreds of thousands of Americans the day after his inauguration in 1977. While his pardon was controversial in its time, it allowed many draft dodgers who had reed abroad to avoid conviction to return to the United States. President Truman similarly granted amnesty to 1,523 men who refused to serve in the U.S. Army during WWII. Families could be reunited, the nation could heal, and the pardon facilitated national unity.
Presidents show great courage when they broadly exercise the pardon power. They lose the chance to hide behind the process and impersonality of the judicial system and face political blowback for taking action. But they have the chance to heal national division, reunite families, and let the country move past deeply felt political discord. Trump will have the opportunity to demonstrate his particularly courageous leadership by honoring his promise to issue Day One pardons.
America needs to move past the divisions of January 6 and move towards a unified future. In the words of French philosopher Rene Girard: “The time has come for us to forgive one another. If we wait any longer there will not be time enough.”
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