lf Donald Trump follows through on his promise to pardon people who participated in the January 6 riot at the US Capitol, attorneys and lawmakers who oppose such moves would not be able to stop him, according to legal experts.
If Trump does issue the pardons, it could indicate to many of his supporters that there was nothing illegal about the riot to prevent the peaceful transfer of power, and would undermine the US constitution, the experts said.
“It gives the message that Trump decides what is and is not actionable under the criminal laws of the United States,” said Kimberly Wehle, a professor at the University of Baltimore School of Law who has studied constitutional law and the separation of powers.
Trump, who has not conceded that he lost the 2020 presidential election, described the insurrection as a “day of love” and calls the rioters “unbelievable patriots”. Those people, however, damaged the Capitol; injured about 140 police officers – four officers who responded have also since died by suicide – and the FBI declared it an act of “domestic terrorism”.
The federal government has filed criminal charges against more than 1,500 people. More than 1,000 people have pleaded guilty or been found guilty. The FBI is also still searching for people who allegedly participated in the attack.
During his campaign, Trump said that issuing “full pardons with an apology to many” would be a top priority.
Presidents issuing pardons is nothing new, and they are allowed to do so under the constitution. The long list includes President George Washington, who issued a presidential pardon in 1795 to people engaged in Pennsylvania’s Whiskey Rebellion; President Gerald Ford, who gave his predecessor, Richard Nixon, “a full, free, and absolute pardon” for crimes he committed as president; and President Bill Clinton, who pardoned Marc Rich, a fugitive financier who fled the United States after his indictment.
“There are many parties that could be criticized historically by those who think that someone was not deserving of that type of dispensation,” said Mary McCord, a former federal prosecutor who is executive director of the Institute for Constitutional Advocacy and Protection.
“The difference here is we are talking about over 1,500 people whose efforts, individually and collectively, were not just violent … [they] also were done with the intent to prevent Congress from certifying the electoral college ballots and thereby override the will of the voters.”
Since Trump’s election, people convicted of crimes because of their actions on January 6 have said they look forward to pardons. Attorneys for defendants who have not been sentenced have also asked judges to delay court proceedings because of Trump’s pledges to abandon criminal prosecutions.
Among those expressing excitement was Timothy Hale-Cusanelli, a security guard at a naval base who was one of the first people to enter the Capitol. He was convicted of obstructing an official proceeding and was sentenced to four years in prison.
Hale-Cusanelli also expressed support for Hitler and spoke at Trump’s golf club in New Jersey as part of a fundraiser for January 6 defendants, National Public Radio reported.
Trump delivered a video message to attenders in which he called them “amazing patriots”.
“I spent three years behind bars for protesting against Biden’s rigged election,” said Hale-Cusanelli, who had previously expressed remorse for his actions, the Washington Post reported. “I waited patiently for this day … All my dudes from the Gulag are coming home from prison … We were innocent on January 6 and we’re still innocent!”
Prosecutors, judges and lawmakers would not be able to prevent Trump from taking such actions because article 2 of the constitution gives presidents the right to pardon all “offenses against the United States”, except cases of impeachment.
The supreme court gave the president additional authority in July when it ruled in a case concerning Trump’s efforts to overturn the 2020 election that presidents enjoy substantial immunity for actions that fall within the scope of the office’s “core constitutional powers”.
That would probably give the president immunity even if he provided a pardon in exchange for a bribe, Wehle said. The court ruled that “any crime that the president commits using official power is above the law and said very specifically that the pardon power is core, so you can’t look into a reason for the pardon”.
Still, there is also the chance that public opinion could influence Trump. While Trump resoundingly defeated Kamala Harris, only a third of Americans support such pardons, according to a recent YouGov and Economist survey. About a quarter of Republicans oppose the pardons.
During the campaign, a spokesperson said Trump would consider pardoning January 6 defendants on a “case-by-case basis when he is back in the White House”.
McCord argued that most people who voted for Trump did so for economic reasons rather than the January 6 issues.
“There is nothing in the polling I have seen to suggest that the majority of those who voted for Trump did so because of his campaign promises of political prosecutions and pardons for the January 6 attackers,” McCord said.
If Trump follows through on his promise to pardon the rioters, he could later face consequences, including impeachment by Congress, said Jeffrey Crouch, an American University assistant professor and expert on federal executive clemency.
“There may be political consequences for the president or their political party at the ballot box,” Crouch said. “Plus, the president always needs to keep the judgment of history in mind.”
Wehle said she was more concerned about some of Trump’s other recent moves, like demanding the Senate allow recess appointments, which would mean he could install officials without the lawmakers’ confirmation, and Elon Musk joining Trump’s call with the Ukrainian president, Volodymyr Zelensky.
Wehle said: “With Republican sycophants willing to sell out the entire constitution and democracy, which seems to be Donald Trump’s unabashed, unmitigated, publicly stated plan, we’re in very deep water right now on the question of whether our system of government will survive the next four years.”
