In a stunning reversal of promises made during the campaign, and on the day he was installed in office as President of the United States for the second time, Donald Trump granted commutation of sentence and executive pardons to all of the individual defendants accused or convicted of any offenses related to the January 6, 2021, Capitol break-ins.
Trump's action has or will affect more than 1,500 defendants related to the beak-in and demonstrations at the Capitol on that day and will result in the immediate release of all those in jail or prison, the termination of parole restrictions imposed on those already released, and the withdrawal and dismissal of all charges against everyone. Previously, from the beginning of his recent campaign, Trump had indicated that pardons for the Capitol uprising would be issued, but only on a case-by-case basis, after an individual review of each application, implying that they would be issued only to the minor convictions for "being there" crimes, and that none would be issued where violence occurred or was threatened.
Of the over 1,500 individuals pardoned, approximately half were convicted or charged with crimes of assault, battery, use of a deadly weapon, injury to officer, or resisting arrest. The two most serious sentences were the 22-year sentence to the leader of "Proud Boys" for sedition and the 18-year sentence to the leader of "Oath Keepers" for conspiracy. Both are related to criminal action to cause others to commit violent crimes.
The power to pardon is granted to the President in article II, section 2, clause 1 of the Constitution, which provides that the President "shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."
It has been held to be a plenary power to forgive entirely every offense known to the law.
Every state governor has some power of pardon, with most states imposing some limitations on the governor's action or some right of review by the state legislature. In Idaho, section 7 of article IV of the state constitution grants power to pardon to a commission on pardons and paroles. The governor may grant interim pardons directly, but they are conditional, to last only until the next meeting of the commission, which may then amend or rescind the governor's action. No condition, limitation, or right of review exists for Presidential pardons except for the Constitutional exclusion for the crime of impeachment. The president's authority is otherwise unlimited.
Trump has been criticized for granting pardons to some individuals who were charged but awaiting trial and therefore before they were convicted of any crime. In the usual case, Presidential pardons are granted after extensive review by the Department of Justice and the Presidential office. Also in the usual case, pardons are granted for specific crimes and only after the defendant is convicted. However, notable exceptions have occurred.
President Joe Biden's exit pardons of General Mark Milley, Dr. Anthony Fauci, former congresswoman Liz Cheney, members of the Congressional committee to impeach, and members of his own family, all allegedly based upon the threats of Donald Trump to cause criminal
action to be taken but before any such actions existed, are noteworthy examples. As also is the single action by then-president Geral Ford in granting a pardon to former-president Richard Nixon, who had resigned the presidency upon threat of impeachment for the Watergate incidents but before any criminal action was commenced.
Notwithstanding this, Trump's action was a surprise to most. His vice president, JD Vance, had declared in an interview on Fox News only a week before, that "If you committed violence on that day, obviously you shouldn't be pardoned." Informants responding confidentially to inquiries from the press indicated up to the day of his inauguration that Trump's intention to pardon was not unconditional but was to be limited to otherwise innocent onlookers. Insiders now say that he made his final decisions only a few days before his inauguration.
Whew. On his first day Trump has taken the office of President off into territories rarely considered possible, and in complete reversal of promises made during his campaign.
Pay attention, everybody – one suspects there will be more coming.