The J6 Pardons — the Long View

In respect of the uproar over President Trump’s last minute decision to issue a blanket pardon to those convicted in connection with January 6, we’ve hung back. We’re troubled by questions like equal justice under law, bills of attainder in the Congress, and what history teaches about the way our revolutionary leaders dealt with real, and seriously violent, insurrections. Plus the baldly political nature of the Justice Department’s handling of the J6 events.It’s not that we weren’t shocked by what happened that day, including the violence of many protesters against uniformed guards of the Congress. We get the outrage over those pardons. Also outrageous was the posture of the Justice Department during, say, the Black Lives Matter riots. Private and government property was firebombed, some protesters were armed, and law enforcement often looked the other way.We don’t like whatabout-ism. We reject the language President Trump uses — “hostages” — to describe the jailed protesters. Yet the conditions to which the accused J6 were subjected during pre-trial confinement were reportedly, in many cases, harsh. Our A.R. Hoffman interviewed one protestor accused of violence who, when pardoned, had been in jail for four years without a trial. He was, legally, presumed innocent even before he was pardoned.The due process violations throughout this campaign against some of the J6 rioters give us pause. We have been alone, but no less adamant, that the findings of the J6 committee in Congress added up to a bill of attainder — meaning a trial by legislature — that is prohibited to the federal and state governments by the Constitution. In a dodge of that prohibition, the J6 committee handed its evidence to the Justice Department.By our lights, that poisoned every case that saw that evidence. Lawyers call such evidence “fruit of the poisonous tree.” Such fruit made its way into the prosecution of Mr. Trump himself by Special Counsel Jack Smith. In pardoning nearly all of the J6ers, Mr. Trump could be, if only after a fashion, pardoning himself, though the president hasn’t gone that far. If he had, could he have avoided the ordeal of both of Mr. Smith’s prosecutions? We grasp the point a federal district court judge, Colleen Kollar-Kotelly, made on Wednesday when she dismissed the charges against one of the pardoned rioters. She wrote that on January 6 “law enforcement did not falter. Standing with bear spray streaming down their faces, those officers carried out their duty to protect.” She called evidence of what happened that day “immutable.” All the more important is due process.Mr. Trump’s clemency extended so far as to reach even those convicted of crimes like seditious conspiracy, a treason-adjacent offense. The founder and leader of the Oath Keepers, Elmer Stewart Rhodes III, is among this group. That shocks many. It is worth recalling, though, that in the early years of the Republic, John Hancock,* Geo. Washington, and John Adams pardoned those who participated in — and led — the Fries’s, Whiskey, and Shays’s rebellions.All three of those rebellions were tax revolts, but they were violent — much more so than the J6 riot, and there was treason, too. Yet America wiped the slate clean. Axios reports that the Trump camarilla believes that January 6 was “essentially litigated in the election Trump won.” Hancock, in his grant of mercy, looked forward to those whom he called the “unhappy offenders” being “again renewed to the arms of their country.” _________* In pardoning Daniel Shays, John Hancock acted in his capacity as governor of Massachusetts.

The J6 Pardons — the Long View

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