President Trump may have pardoned the Jan. 6 defendants, but some Democratic-appointed judges who presided over the cases are furious about letting them go.
In a series of rulings over the past week, they have railed against the Justice Department and complained that Mr. Trump and his allies are trying to “whitewash” the events of Jan. 6, 2021.
One judge flatly declared the defendants “insurrectionists,” although no such charge has been brought and no one has been convicted of insurrection.
Judge Tanya Chutkan said the pardons don’t fix “the jagged breach in America’s sacred tradition of peacefully transitioning power.”
“No pardon can change the tragic truth of what happened on January 6, 2021,” she said.
“It cannot whitewash the blood, feces, and terror that the mob left in its wake,” said Judge Chutkan, who oversaw the special counsel’s prosecution of Mr. Trump until his election victory short-circuited that case.
Four years after the mob stormed the Capitol, clashed with police and disrupted the Electoral College vote count, Mr. Trump issued a broad clemency to all involved. He pardoned nearly all 1,500 offenders, commuted a small number of sentences and ordered his acting attorney general to squelch cases in the works.
Cases facing trial were to be dismissed, and those in the FBI pipeline were to be shelved.
That sparked outrage from Democrats and Republicans and spurred the startlingly pointed criticism from some federal jurists in the District of Columbia.
Several judges refused to dismiss the cases “with prejudice.” In theory, that means another prosecutor could refile charges.
Josh Blackman, a professor at the South Texas College of Law, said the pardon means the federal government cannot bring the case again. To refuse to dismiss the case with prejudice is “editorializing on Trump’s pardon.”
“I don’t see what the point is other than signaling and saying, ‘I don’t agree with this,’” he said.
“It’s very unusual, but I think it shows a lot of these judges have become invested in these cases,” Mr. Blackman said. “It does kind of show that maybe these judges are predisposed to think these are really guilty people.”
The District’s federal judges have handled more than 1,500 Jan. 6 cases over the past four years.
Some are quietly signing dismissal orders and dumping cases from the docket.
A few are delivering broadsides that sound like they come from a backbench Democrat on Capitol Hill rather than an impartial federal judge.
Judge Paul Friedman filed a 12-page opinion Friday explaining why he refused to dismiss with prejudice a case against Vitali GossJankowski, who was convicted by a jury of being on restricted grounds and assaulting, resisting or impeding a federal officer. He was to be sentenced in March.
After Mr. Trump’s pardon order, the Justice Department asked that the case be tossed. Judge Friedman said the department hadn’t made much of a case beyond citing the president’s directive and the prosecution’s injustices.
“The proclamation’s assertion is factually incorrect. There has been no ‘grave national injustice,’” Judge Friedman wrote.
He pointed to the “great many” Jan. 6 cases he had overseen and said each was handled with care for the law. He said he would dismiss the case but refused to do so with prejudice.
“Although the court has granted the motion to dismiss, neither this dismissal, the dismissal orders issued by other judges of this court, or the pardons issued by the president will undo the damage done by the insurrectionists on January 6, 2021. Nor will it change the truth of what happen[ed] on that day of infamy,” the judge wrote.
Judge Amit P. Mehta insisted on adding conditions to some Jan. 6 defendants whose sentences were commuted. He ordered them not to “knowingly enter” the District, particularly the Capitol complex.
He backed off Monday, saying Mr. Trump’s clemency should be interpreted broadly.
Mr. Trump’s pardons are raising other tricky legal questions.
Dan Edwin Wilson was released from a federal prison in Kentucky where he was serving a 60-month sentence, but his attorney, Norman Pattis, said officials now want to take him back into custody for gun charges.
Mr. Pattis said the search that turned up the guns was conducted only because of the Jan. 6 investigation, so it was unclear whether the presidential pardon also covered that.
The Trump administration has moved to erase some Jan. 6 records from the internet. The Justice Department’s central database of defendants has disappeared, as has the FBI’s “Capitol violence” webpage.
The U.S. attorney’s office for the District, which prosecuted the cases, deleted its “Capitol Siege” page.
Administrations often move and archive content from their predecessors, but it usually remains online with a notice that it is archived content and may no longer represent the latest, but the Jan. 6 content is no longer available in that compiled form.
In her orders dismissing Jan. 6 cases, Judge Colleen Kollar-Kotelly said the facts are now for history to judge.
“Dismissals of charges, pardons after convictions, and commutations of sentences will not change the truth of what happened on January 6, 2021,” she wrote. “What occurred that day is preserved for the future through thousands of contemporaneous videos, transcripts of trials, jury verdicts, and judicial opinions analyzing and recounting the evidence through a neutral lens. Those records are immutable and represent the truth, no matter how the events of January 6 are described by those charged or their allies.”
Judges Kollar-Kotelly and Friedman were appointed to the bench by President Clinton. Judges Mehta and Chutkan are Obama nominees.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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