At a campaign event shortly before the November election, President Trump gave an answer that offers the best explanation for the pardons he announced on Monday. Asked at a Univision town hall about the riot by his supporters at the Capitol on Jan. 6, 2021, he said, “There were no guns down there. We didn’t have guns.”
For starters, the statement was false; according to the Justice Department, at least 180 people have been “charged with entering a restricted area with a dangerous or deadly weapon,” including guns, knives, batons, baseball bats and chemical sprays. But it’s the pronoun — “we” — that gives Mr. Trump’s game away. By pardoning the rioters, he was, in every real sense, pardoning himself.
The president repeatedly promised during the campaign that he would pardon what he called the “J6 hostages,” but he was vague about the details. It has become clear that Mr. Trump decided to go big. He pardoned a vast majority of the 1,600 who were arrested, including those who assaulted police officers. (About 140 police officers were injured during the riot.) Further, Mr. Trump ordered all pending cases, including those for defendants charged with violent crimes, to be dismissed.
In simple terms, this means that in a few days, there will be no one in prison or facing any sort of criminal penalty for their actions at the Capitol on Jan. 6, 2021. Some, including Enrique Tarrio, the former leader of the Proud Boys who was pardoned after being sentenced to 22 years for seditious conspiracy, have already been released from their sentences.
The cases against them now disappear, as if they had never been brought, and the consequences of those convictions vanish as well. Former convicts, including those who assaulted police officers, will now have no restrictions on their right to purchase firearms; they will be free to bring guns to their next confrontation with authorities.
The pardon recipients now join Mr. Trump himself as former Jan. 6 defendants who are in the clear for their actions on that day (After his victory in November, the Justice Department dropped its prosecution of him for conspiracy to overturn his 2020 loss by putting forth phony slates of electors on Jan. 6.)
There is no check or balance on the president’s power to pardon. Neither a court nor Congress can overturn an act of clemency. It is the provision of the Constitution most directly descended from the authority of the British monarchy. Because presidents exercise such unfettered discretion in granting clemency, these actions provide useful insights into their true character.
In his final days in office, President Joe Biden used pardons to undo some of his own political history. As a senator, he was a leader in the tough-on-crime program of the 1990s, which contributed to the era of mass incarceration. As a form of penance, he issued clemency to 2,500 individuals who received “disproportionately long sentences” for nonviolent offenses.
Mr. Biden tried to stem Mr. Trump’s promised legal onslaught against his allies, with pardons for Anthony Fauci, Gen. Mark Milley and others against whom the new president had vowed vengeance. Also, in his final days, Mr. Biden’s oft-stated love for his family curdled into an obsessive protectiveness. In December he pardoned his son Hunter (after repeatedly denying that he would) and then, in his final hours in office, issued pardons to five family members who have little or no chance of being investigated for any crime.
Mr. Trump’s Jan. 6 clemencies underline the differences between the two men. Mr. Biden built a cocoon around his family and a handful of allies, Mr. Trump rewarded his entire movement; Mr. Biden played defense, Mr. Trump offense.
Yesterday’s pardons may be shocking in their breadth and number, but they are not, for Mr. Trump, aberrational. His first-term pardons offered a preview of those of his second term. His actions were consistent with the transactional narcissism that characterized his approach to clemency during his first term.
Alexander Hamilton defended what he called “the benign prerogative of pardoning” as a limitation on government power rather than an expansion of executive authority. In Federalist No. 74, he wrote, “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
But Mr. Trump, in exercising this power, turned this justification on its head. Avoiding cruelty had nothing to do with his actions. They were all, at their core, about Mr. Trump himself — deposits and withdrawals in his favor bank. They were tokens of gratitude, expressions of vengeance, payments for future consideration and acts of political provocation.
Mr. Trump established this pattern in his first year in office. Joe Arpaio was the longtime elected sheriff of Arizona’s Maricopa County, which includes Phoenix. He was a notorious anti-Hispanic bigot, with a special interest in creating harsh and demeaning prison conditions, especially for undocumented immigrants. Mr. Arpaio was also a leading spokesman, as Mr. Trump was, for the lie that Barack Obama was not born in the United States and thus was ineligible to be president. In 2017, Mr. Arpaio was convicted of criminal contempt for failing to follow court orders to stop racial profiling. While he was awaiting sentencing, on Aug. 25, 2017, Mr. Trump issued his first pardon to him, declaring in a tweet that Mr. Arpaio was an “American patriot” who “kept Arizona safe!”
After Mr. Arpaio, Mr. Trump pardoned Dinesh D’Souza and Conrad Black. Mr. D’Souza was a right-wing provocateur (who became a 2020 election denier) who was convicted of making fraudulent campaign contributions to a Republican Senate candidate in New York. Mr. Black, a Canadian-born author and former newspaper publisher who was convicted in a multimillion-dollar fraud, had endeared himself to Mr. Trump by writing a fawning biography, “Donald J. Trump: A President Like No Other.” The three men’s crimes were different, but they earned their reward from Mr. Trump in the same way: by praising and agreeing with him.
As in other areas of his career, there were so many scandals with pardons and commutations in the final days of Mr. Trump’s first term that it was difficult for the public to fasten on a single one. The sheer number of outrageous pardons served as a kind of insulation against critical public attention to any of them. (At the time, the unfolding scandal of Mr. Trump’s efforts to overturn the election also limited the attention given to his pardons.) The recipients in this period started with Charles Kushner, his daughter’s father-in-law, who was convicted in a lurid scandal in New Jersey and served 14 months in prison. (After winning a second term, Mr. Trump named Mr. Kushner his ambassador to France.)
Mr. Trump also used pardons to nurse his grievance against Robert Mueller, the special counsel who investigated Mr. Trump’s ties to Russia. Mr. Trump used pardons to undo convictions that Mr. Mueller obtained. This group included Michael Flynn, Mr. Trump’s first national security adviser; George Papadopoulos; and Alex van der Zwaan, who were all convicted of lying to investigators. Mr. Trump pardoned his old friend Roger Stone, whose sentence he commuted in another false statement case, as well as Paul Manafort, his campaign chairman, after his conviction for fraud. Though Steve Bannon, Mr. Trump’s former chief White House strategist, was charged with fraud by federal prosecutors in New York (not by Mr. Mueller), Mr. Trump regarded the indictment as an affront. So Mr. Trump pardoned Mr. Bannon, too.
Another group of pardons appeared to be thank-yous to Republican members of Congress. Several of their former colleagues had been prosecuted for corruption in office (some of it egregious). Among those receiving clemency were Duke Cunningham of California, who was convicted of taking $2.4 million in bribes; Duncan Hunter, also of California, who pocketed thousands of dollars of campaign contributions; Rick Renzi of Arizona, who was convicted of racketeering, extortion and other crimes; Robin Hayes of North Carolina, who lied to investigators in a bribery investigation; Chris Collins of New York, who pleaded guilty to insider trading and false statements; and Steve Stockman of Texas, whose commutation meant he was released after serving only two years of a 10-year sentence for stealing upwards of $1 million.
In a political gesture, Mr. Trump pardoned military officials who were accused of war crimes in Afghanistan. For example, Lt. Clint Lorance was serving a 19-year prison sentence for ordering the killing of two unarmed Afghan villagers. Maj. Mathew Golsteyn was awaiting trial, charged with the premeditated murder of a Taliban bomb-making suspect. Mr. Trump pardoned them and later brought them onstage at one of his political fund-raisers.
The Jan. 6 clemencies were not the first that Mr. Trump granted to violent criminals.
The most chilling was the commutation that Mr. Trump gave on the final day of his first term to Jaime Davidson, a major New York drug dealer who was convicted in the 1990 murder of an undercover officer. According to the evidence in the case, Mr. Davidson recruited three men to rob Wallie Howard Jr., who was working undercover, of $42,000 that he planned to use to buy four pounds of cocaine. Although Mr. Davidson did not fire the shot that killed Mr. Howard, he gave the gunman the weapon that was used, and thus he was charged and convicted in the murder. Mr. Davidson was sentenced to life in prison without the possibility of parole.
Later, in seeking clemency, Mr. Davidson was represented by one half of a married team that also represented Donald Trump Jr. and some Trump Organization associates. The elder Mr. Trump granted the commutation without consulting the prosecutor in Mr. Davidson’s case, who was horrified when he found out that Mr. Davidson would be released. “If you ask me for a list of people who nobody should give a presidential commutation to,” the prosecutor said later, “Davidson would pretty much be at the top of the list.” (The independent journalist Judd Legum uncovered that in April 2023, after Mr. Davidson’s commutation and release from prison, he was arrested and accused of attempting to strangle his wife during a domestic dispute. When his case went to trial, he was acquitted of two felonies but convicted of misdemeanor battery and sentenced to three months in prison. Facing the prospect of returning to prison for violating his conditions of supervised release, he appealed the misdemeanor conviction.)
There is a robust debate in academic circles about whether the Constitution allows a president to issue a pardon to himself. The arguments on both sides are straightforward. Proponents of such authority say that the text of the Constitution provides no prohibition on self-pardons, so it must be permissible; opponents say that the structure of the Constitution amounts to a ban on this kind of self-dealing. Because no president has ever attempted a self-pardon, the courts, including the Supreme Court, have never had the opportunity to decide the question.
On June 4, 2018, Mr. Trump weighed in on the issue with a post on Twitter, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” But with his actions on the first day of his second term, Mr. Trump, with his customary bravado and disrespect for norms, redefined the terms of this debate. He not only pardoned himself; he took the whole MAGA crusade with him. There was no one, and nothing, to stop him.
Jeffrey Toobin is a contributing Opinion writer for The New York Times and the author of the forthcoming “The Pardon: The Politics of Presidential Mercy.” This article originally appeared in The New York Times.
