Nearly 4 Years Later, No Letup in Jan. 6 Prosecutions, Possible Pardons or Not

Even as President-elect Donald Trump promised on Sunday to act “very quickly” on pardons for many of the protesters involved in the events of January 6, the Biden administration’s Justice Department is continuing to arrest and try people for actions that occurred almost four years ago while opposing motions to delay trials because of the need for “the prompt and efficient administration of justice.”

The Justice Department trying to get ahead of pardons?

If the defeat of Kamala Harris constituted at least a partial repudiation of the lawfare against Trump and his supporters, the message appears to be lost on top brass at the DOJ. Prosecutors are pushing ahead with what they consider the department’s crowning achievement: the so-called “Capitol Siege” investigation into the events of Jan. 6, 2021.

In what Attorney General Merrick Garland describes as the biggest criminal investigation in Department of Justice history, more than 1,560 people have been charged for federal crimes never before used against political protesters, including under a post-Enron obstruction statute overturned by the Supreme Court in June. At least 1,000 of these defendants have been convicted – either at trial or by accepting plea offers –  with some 650 defendants ordered to serve time in a federal prison. Sentences range from a few days in jail to up to 22 years as the DOJ seeks “terror enhancements” to tack on additional time.

Activity in the J6 investigation accelerated the month before the election. At least 16 individuals were arrested; home security camera footage obtained by RCI shows the heavily-armed pre-dawn FBI raid of a subject in California on October 17.

A social interest?

Shortly after the election, DOJ officials instructed attorneys working on J6 cases to carry on regardless of the pending change in leadership. “[Federal] prosecutors in the Justice Department’s Capitol Siege Section received guidance this week about how to proceed in pending Jan. 6 cases … including a directive to oppose any Jan. 6 defendant’s requests for delays,” Ryan J. Reilly of NBC News reported on Nov. 9. “Prosecutors are instructed to argue that there is a societal interest in the quick administration of justice and these cases should be handled in the normal order.”

At the same time, the Biden Justice Department is continuing to apprehend protesters. On Dec. 4, for example, the DOJ announced the arrest of a 44-year-old Alabama man, Robert James Bonham, charging him with a range of crimes, including “assaulting, resisting, or impeding certain officers and obstruction of law enforcement during a civil disorder.” 

If Trump shuts down the department’s “Capitol Siege” section, as he is expected to do, Bonham will never go to trial. But this does not appear to concern Matthew Graves, U. S. Attorney for the District of Columbia. Appointed by President Biden in November 2021, Graves has presided over the sprawling J6 investigation and now continues to advance related cases.

Washington judges agree

His office has opposed the J6 defendants’ requests to halt proceedings until after Trump is sworn in next month. Judges began receiving a slew of defense motions starting the day after the election asking to postpone trials and hearings, but Graves said there is “public interest in the prompt and efficient administration of justice” as a reason to continue business as usual.

Federal judges in Washington agree with the DOJ’s approach. According to an analysis by RCI, 44 pardon-related motions including requests to delay trials and sentencings have been filed since November 6. Of those, judges, with the exception of Judge Rudolph Contreras, have denied each one. Several more are pending awaiting the court’s decision.

Judge Dabney Friedrich denied a motion to delay a J6 jury trial scheduled to begin the week after the election. Mitchell Bosch, a man from New York charged with several offenses, was set to go on trial on Nov. 13, but his public defenders filed a motion the day after the election  arguing their client “cannot receive a fair trial in the District of Columbia six days from today due to the heightened public emotion and highly publicized media attention surrounding yesterday’s presidential election, which resulted in the re-election of Donald Trump.” 

The attorneys noted that “92.4% of the D.C. electorate voted for Vice President Kamala Harris, with only 6.7% voting for President-elect Donald Trump.”

A retaliatory conviction

The attorneys further insisted disgruntled D.C. voters could retaliate with a conviction. “If jurors believe that the President-elect is a threat to democracy, that he does not take the events of January 6, 2021, seriously, and that he will pardon those involved that day, there is a real and significant possibility that, in their aversion to those views, they will punish Mr. Bosch or use this case to send a message that they disagree with the President-elect.”

But Friedrich, whose husband, Matthew, worked on the Enron task force with current Deputy Attorney General Lisa Monaco, was unpersuaded. “Despite the recent election, the Court continues to conclude that the Court’s voir dire procedures will be adequate to screen out potential jurors who cannot be fair and impartial.”

And after a single day of deliberations, the jury returned guilty verdicts, two felonies and four misdemeanors, on Nov. 18. (The DOJ has a 100% conviction rate in J6 jury trials; no J6 defendant has been fully acquitted of all charges since trials began in March 2022. Judges also continue to deny all change-of-venue motions.)

Three J6 jury trials are set to begin this week. For the trial of one of those defendants, a man charged with civil disorder and four misdemeanors, Judge Amy Berman Jackson recently entered an order allowing prosecutors to describe January 6 to jurors as an “attack on the Capitol,” “attack on Congress,” and a “riot.” 

The promised pardons rankle

But political bias in the aftermath of Trump’s election is not the only factor judges refuse to consider as they move J6 cases along. Trump’s pledge to pardon most, if not all, J6ers also receives a cold reception in the E. Barrett Prettyman federal courthouse located a few blocks from the Capitol.

The day after the election, an attorney representing Christopher Carnell, who was convicted of nonviolent misdemeanors following a bench trial in February 2024, asked the judge in his case to delay a scheduled hearing based on the possibility of a pardon. “Throughout his campaign, President-elect Trump made multiple clemency promises to the January 6 defendants, particularly to those who were nonviolent participants,” attorney Marina Medvin wrote on Nov. 6. “Mr. Carnell, who was an 18-year-old nonviolent entrant into the Capitol on January 6, is expecting to be relieved of the criminal prosecution that he is currently facing when the new administration takes office.” 

But Beryl Howell, the former chief judge of the court, immediately rejected her request and set a sentencing hearing for Carnell this week.

A sampling of rulings

Her colleagues on the D.C. federal bench, citing either a public interest in continuing court proceedings or making separation of powers arguments, followed her lead with recent rulings:

Judge Reggie Walton: “[The] potential future exercise of the discretionary pardon power, an Executive Branch authority, is irrelevant to the Court’s obligation to carry out the legal responsibilities of the Judicial Branch.” – November 7 order denying motion to postpone sentencing.

Judge Amit Mehta: “Defendant’s speculation that he may receive a pardon is not good cause to stay this matter.” – November 11 order denying motion to continue trial.

Judge Paul Friedman: “Whatever the President-Elect may or may not do with respect to some of those charged for their conduct at the Capitol on January 6, 2021 is irrelevant to the Court’s independent and legal responsibilities under Article III of the Constitution.” – November 12 order denying motion to continue trial.

Judge Colleen Kollar-Kotelly: “The principal bases for [the defendant’s] requested continuance are that President-elect Donald J. Trump has ‘repeatedly stated that he would pardon’ those involved in the January 6 riot and that ‘a new Attorney General may dismiss’ the case against him. The Court joins others in this District in rejecting Defendants’ invitation to speculate about future clemency or charging decisions. ” – November 21 order denying motion to continue trial.

Chief Judge James Boasberg: “Speculation as to what the incoming Administration may do is not a basis for a continuance.” – December 2 order denying motion to postpone sentencing.

The most outspoken judge

Royce Lamberth, a Reagan appointee, is the most outspoken judge when it comes to any downplaying of what happened on Jan. 6. In an April 2024 Wall Street Journal profile, the 80-year-old jurist was described as “a leading voice pushing back against attempts by Republican politicians to play down the Jan. 6 attack.” Lamberth said he decided to speak out, an unusual move for a federal judge presiding over cases for which he is obligated to remain impartial, because “justifications for the Capitol attack” represent an affront to “the integrity of the judicial system.”

Lamberth is sparing no harsh words in rejecting pleas for relief before Inauguration Day. Accusing J6ers of “[subjecting] our Capitol and our country to the horrific scene of their anti-democratic rage,” Lamberth refused to postpone the sentencing of Philip Sean Grillo, who was convicted of civil disorder and the common four misdemeanors. Any presidential pardon, Lamberth continued, would not undo the work of the courts and D.C. juries.

“To continue Mr. Grillo’s sentencing now simply because he may receive a presidential pardon would discredit the time and thought these citizens expended on the trial and would subvert our criminal justice process and the separation of powers.”

Would the pardons minimize what happened?

On December 6, Lamberth not only sentenced Grillo to 12 months in federal prison but took the unusual move of remanding him into immediate custody; judges usually allow a defendant to report two to three months following sentencing. Lamberth’s decision appeared to make sure Grillo spent some time in jail before a presidential pardon spared him.

In a 13-page sentencing document explaining his reasons for imposing such a harsh move, Lamberth again criticized what he believes are attempts to “minimize the events of January 6.” Lamberth then erroneously claimed five police officers died as a result of the protest. “One can only wonder what further horrors might have transpired if our elected officials had not gotten out in time. No matter what ultimately becomes of the Capital Riots cases already concluded and still pending, the true story of what happened on January 6, 2021 will never change.”

He again took issue with Trump’s plans to pardon J6ers and emphasized his independent role as a jurist. “The fundamental American principle of separation of powers would be empty of meaning if the courts allowed themselves to become paralyzed based on conjecture about the coordinate branches’ future actions. I will do my job, as I am bound by oath to do, and the President will do his; it is as simple as that.”

A direct challenge to Trump

And at least one D.C. judge is taking direct aim at Trump for even considering pardons. Trump-appointee Carl Nichols, who presided over Steve Bannon’s contempt case and sentenced the longtime Trump adviser to four months in a federal penitentiary, went so far as to say in a recent court hearing that it would be “beyond frustrating and disappointing” for the incoming president to issue “blanket pardons … or anything close.”

But it’s not just existing cases that are being fast-tracked before the transfer of power. Graves has announced the arrest of at least 10 Jan. 6 protesters since Election Day; last week, Graves charged at least three individuals for their participation in the Capitol protest. 

Speculation about the pardons

There is no indication the DOJ will halt the pursuit of J6ers even as the pardon of Hunter Biden raises concerns over the practice of presidential pardons. Shortly after Joe Biden pardoned his son, Trump posted a message on Truth Social referring to the J6ers in what some consider a sign he is considering a similarly broad pardon. “Does the Pardon given by Joe to Hunter include the J-6 Hostages, who have now been imprisoned for years? Such an abuse and miscarriage of Justice!” Trump wrote.

In apparent response, the New York Times editorial board criticized the Hunter Biden pardon not on its merits but because it makes it easier for “ Trump [to] pardon the perpetrators of the violent Jan. 6 attack on the Capitol.”

This article was originally published by RealClearInvestigations and made available via RealClearWire.