Donald Trump supporters clash with police and security forces as people try to storm the U.S. Capitol on Jan. 6, 2021 in Washington, D.C. (Photo by Brent Stirton/Getty Images)
Donald Trump takes the presidential oath of office on Monday, and in Ohio scores of men and women who participated in the Jan. 6, 2021 riot at the U.S. Capitol are watching closely to see if he makes good on the pardons he promised on the campaign trail.
When he visited Ohio last March, Trump opened his rally speech with a video of Jan. 6 defendants singing The Star-Spangled Banner from behind bars. “You see the spirit from the hostages,” Trump told the crowd, “And that’s what they are is hostages.” He promised that he’d be working on that soon — on the “first day we get into office.”
A few months later during a CNN town hall, he clarified “I am inclined to pardon many of them. I can’t say for every single one because a couple of them, probably, they got out of control.”
Still, it seems many of Trump’s die-hard supporters assumed there was some kind of inclination toward pardoning all Jan. 6 participants. Vice President-elect J.D. Vance was met with pushback after indicating only non-violent defendants should get pardons.
“Look, if you protested peacefully on January the sixth, and you’ve had Merrick Garland’s Department of Justice treat you like a gang member, you should be pardoned,” Vance said on Fox News Sunday. “If you committed violence on that day, obviously you shouldn’t be pardoned.”
“There’s a little bit of a gray area there,” he added, “but we’re very much committed to seeing the equal administration of law. And there are a lot of people, we think, in the wake of January the sixth, who were prosecuted unfairly. We need to rectify that.”
Even with those caveats, Vance’s suggestion of a dividing line among cases earned scorn among far-right figures like Steve Bannon.
“Pardon them all,” he wrote on the social media site Gettr. “Every last one.”
Where the prosecutions stand
In an update published on the fourth anniversary of the riot, the U.S. Department of Justice tallied up 1,583 arrests and more than 1,000 guilty pleas. The majority of cases have been fully adjudicated, and 667 people have been sentenced to time behind bars with another 145 sentenced to home detention.
The range of their offenses is vast. The agency notes every defendants has been charged with trespass, but more than 600 were charged with “assaulting, resisting or impeding” law enforcement, 174 of whom used a “dangerous or deadly” weapon. In addition to using makeshift weapons like police riot shields or fencing, the rioters brought firearms, tasers, pepper spray, and knives into the Capitol — one woman even brought a sword.
Federal prosecutors’ conviction rate in the Capitol siege cases has been very high, but there have been a few acquittals along the way. They were dealt a more significant setback by the U.S. Supreme Court’s decision in Fischer v. United States. That case determined federal officials couldn’t apply a statute related to obstructing an official proceeding as broadly as they had been.
As a result, justice officials went back through 259 cases, but in each one of them, the defendant faced additional charges outside the ones addressed by the Fischer case. Six individuals have seen their sentences reduced because of the case.
An Ohio perspective
Today I turn myself in to federal prison for the 19 month sentence I received for peacefully protesting inside the People’s House on January 6th, 2021.
I was 21 years old at the time, and I have been fighting these charges for the last 3 years.
It is my great honor to be held… pic.twitter.com/7Jx4Vjtnyw
— Alexander Sheppard
(@NotAlexSheppard) November 2, 2023
According to federal prosecutors, Alexander Sheppard participated in the riot at U.S. Capitol “joined others in overrunning multiple police lines,” “videotaped fleeing members of Congress and staff and looked on as other rioters violently punched out the windows of the doors,” outside the U.S. House chamber. In its sentencing recommendation the DOJ asked for 37 months in prison followed by 36 months of supervised release and $2,000 in restitution.
“The government’s recommendation in this case reflects its substantial concern that Sheppard’s actions on that day may not be his last,” prosecutors argued, citing ongoing defiant and threatening posts on social media.
In September 2023, he was sentenced to 19 months, and later posted “It is my great honor to be held hostage as a political prisoner in these United States of America.” In an accompanying photo he’s holding two thumbs up outside a prison, wearing a shirt that reads “Let’s go Brandon.”
He got a reprieve when the U.S. Supreme Court took up the Fischer case. Sheppard’s attorney argued he should be released early because he might serve more time than necessary if the Fischer case went his way. The judge agreed, and he was released last May.
In an interview this week, Sheppard remained defiant and argued Trump’s “got to pardon everyone.”
“Whether we were charged with violence or not, every single one of us was denied due process,” he insisted, “because they forced us to have the trial in Washington, DC, where they have this Soviet-style rigging of the jury pool and a 100% conviction rate on Jan. 6 defendants.”
Although quite rare, there have been a few acquittals in Jan. 6 cases. Notably, federal cases writ large almost never result in an acquittal if they make it to trial.
Sheppard is quick to note his charges were non-violent, and he argued that those charged with violence were acting in self-defense. He brought up police using non-lethal deterrents like pepper spray and rubber bullets indiscriminately, and the deaths of Ashli Babbit and Rosanne Boyland (Babbit was shot and killed trying to enter the Speaker’s Lobby; according to a coroner’s report while Boyland died of an amphetamine overdose).
“If somebody defends themselves and defends other protesters, then they’re violent,” Sheppard said. “I just don’t think it’s right.”
Please understand that ALL defendants were denied DUE PROCESS and should therefore be pardoned.
We did not even have a jury of our peers in Washington, D.C.
The only people who should be imprisoned are Capitol Police Officers who massacred protesters!
— Alexander Sheppard
Pressed on police officers’ duty to defend the Capitol from the rioters in addition to their own right to defend themselves, Sheppard was dismissive. “They shot her with no warning,” he said of Babbit, despite officers attempting to warn her group away from a barricaded door and another demonstrator recalling officials telling protestors to get back. Babbit was shot attempting to crawl through a broken window and Capitol Police rendered first aid immediately.
Given his sympathies with those facing charges of violence, Sheppard was frustrated with Vance’s suggestion that violent offenders not get pardons. In a response to Vance on social media, he reiterated the argument that defendants were denied due process.
“The jury pool is going to be rigged against them,” he said in an interview. “So, yeah, I don’t like what J.D. Vance had to say. I respectfully hope that he changes his position. But at the end of the day, it’s not his decision to make — it’s going to be President Trump’s decision.”
As for what he expects to happen, Sheppard has noted with interest recent quotes from Trump that he could act within the first nine minutes of his new term, and described hearing from people still in prison who already have their bags packed.
“I think you will be surprised how many people he pardons right away,” Sheppard said. “I don’t think he’s going to do three a day. I think it’s going to be hundreds a day.”
Legal analysis and stakes: “It’s as bad as you think”
There’s no question that Trump’s pardon power is vast, and what constraints he does face likely wouldn’t stand in the way of pardoning Jan. 6 defendants. The Trump transition team did not respond to the Ohio Capital Journal’s request for comment.
As for Sheppard’s due process claims, retired Case Western Reserve University law professor Jonathan Entin offered a blunt assessment.
“Well, he’s wrong, is the short answer,” Entin said.
“Let me read you from The Sixth Amendment to the Constitution — part of the Bill of Rights,” he went on. “It says ‘in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury — of the state and district wherein the crime shall have been committed.’”
Entin explained that there’s a powerful interest for the parties where a crime occurred to be in charge of prosecuting the case. “After all,” he explained, “the impact of the crime was right there.” It’s possible for a defendant to argue for a change of venue if there’s a concern that publicity might taint the jury pool, but Entin said those motions are rarely granted.
“And that’s particularly true in a really high-profile case, like the cases that arose out of Jan. 6,” he explained. “Because people everywhere know about what happened, right? And so, the idea that you could get a more impartial jury somewhere else just seems far-fetched.”
On appeal, Entin added, Sheppard could argue he was tried in the wrong venue. But even if that argument was successful, the result could just be a new trial.
Taking a step back and considering the stakes of Trump issuing widespread pardons, Ohio State University sociologist Laura Dugan paints a bleak picture.
“I mean, it’s as bad as you think,” she said. “It’s basically giving permission for people to overthrow the government if they think that the government is behaving in a way that is treasonous. And the only thing that requires them to think that is that Trump tells them.”
Dugan studies terrorism and helped launch the Global Terrorism Database. As part of Ohio State’s Mershon Center she has organized research workshops on the growth of extremism in the United States.
She tends to think Trump will pardon all those who took part in the Jan. 6 riots.
“I actually would be surprised if he doesn’t do it,” Dugan said. Even though Trump and Vance themselves have hinted at exceptions, Dugan contends setting some standard to distinguish among cases would upset Trump’s supporters.
“Despite what Vance is saying, if (Trump) does put a line where the pardons fall, he will get hit with some backlash for it — even the violent offenders,” she explained.
Regardless of how many pardons Trump eventually issues, Dugan argued that the consequence will be to vindicate the rioters’ actions and make similar events more likely in the future. Those who receive a pardon will achieve a kind of martyr-like status, and if Trump’s agenda faces obstacles, she warned, there’s are subset of his supporters who would have no qualms coming to Washington D.C. again.
The pardons will reinforce the narrative “that they were in the right,” Dugan said.
“He wants that, they want that, but it’s not good for the country.”
Follow Ohio Capital Journal Reporter Nick Evans on X or on Bluesky.
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