Even though President Trump had made it a campaign pledge to pardon those involved in the Jan. 6, 2021 Capitol riot, the roughly 1,500 pardons Trump issued on his first day produced familiar reactions from politicians and pundits.
In Philadelphia, District Attorney Larry Krasner pledged to pursue those pardoned or commuted with new charges on the state level — eclipsing Manhattan District Attorney Alvin Bragg in repackaging federal crimes as state offenses.
Others cited the pardons as evidence of an even greater plot or purpose. On MSNBC, former NAACP Legal Defense and Educational Fund head Sherrilyn Ifill declared that the pardons were all part of a plan to build an army of “brownshirts.”
Not to be outdone, Rep. Jamie Raskin (D-Md.) warned that Trump was issuing pardons to create a “reserve army of political foot soldiers to act on behalf of MAGA and Donald Trump.”
Such hyperbole, particularly the Nazi references, is now commonplace. Indeed, the left jumped the shark on the Nazi-mania and death-of-democracy mantra months ago. This week, however, some of the most strident comments seem to be coming from the federal bench itself.
Indeed, some judges used dismissal hearings to launch into what seemed at points like cable-ready commentary. Take District Court Judge Tanya Chutkan, an Obama appointee who had previously presided over Trump’s election interference case.
Chutkan had been criticized for failing to recuse herself from that case after she made highly controversial statements about Trump from the bench. In a sentencing hearing of a Jan. 6 rioter in 2022, Chutkan said that the rioters “were there in fealty, in loyalty, to one man — not to the Constitution.” She added then, “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.” That “one person” was still under investigation at the time and, when Trump was charged, Chutkan refused to let the case go.
She then pursued Trump with a vigor second only to Special Counsel Jack Smith.
In the latest hearing, Chutkan again decided to use the bench to amplify her own views of the pardons and Jan. 6. She proclaimed that the pardons could not change the “tragic truth” and “cannot whitewash the blood, feces and terror that the mob left in its wake. And it cannot repair the jagged breach in America’s sacred tradition of peacefully transitioning power.”
In fairness, judges often express the gravity of offenses at sentencing, and most of us certainly share the strong revulsion over what occurred on Jan. 6. However, these cases are being dismissed after an election whose winner explicitly pledged to close the prosecutions through executive clemency.
The defendant in her courtroom was there to have a required dismissal entered in his case, not to hear Judge Chutkan speaking truth to power. In this case, she is the power. It is the power to rule dispassionately on the specific case before her. It is not the power to hold court on the merits of presidential decisions.
Down the hall, Chutkan’s colleague Judge Beryl Howell, also an Obama appointee, lashed out at Trump’s actions, writing, “[T]his Court cannot let stand the revisionist myth relayed in this presidential pronouncement.”
Yet, all of that paled in comparison to what their colleague U.S. District Judge Amit Mehta, also an Obama appointee, did with his Jan. 6 cases.
He ordered J6 defendants to seek prior approval before going to Capitol Hill or even coming within any of the 69 square miles of the nation’s Capitol. Thus Mehta practically banished Oath Keepers founder Stewart Rhodes and seven other defendants.
It does not appear that the Trump Justice Department requested such restrictions, but Mehta was able to impose them because those defendants had received commutations rather than pardons. A commutation does not require the dismissal of a case, and courts are generally allowed to set conditions for released defendants.
However, these are new conditions imposed after presidential commutations. More importantly, they could affect the exercise of First Amendment rights from free speech to free association to the right to petition the government. For example, Rhodes and others would have to disclose intended meetings with members of Congress or participation in political events.
Rhodes previously asked to speak to the House committee that investigated the riot, but the Democrat-controlled committee refused to allow it. (A Yale law graduate, Rhodes insisted that the hearing be conducted in public, the very condition Hunter Biden made with the support of some of these same members.)
What if Rhodes now wants to meet privately with members to supply his testimony? He would need Mehta to approve it and potentially make such plans public.
In my book, “The Indispensable Right,” I discuss the J6 cases and serious concerns over what a top Justice Department official called the “shock and awe” campaign to make an example of the defendants by throwing the book at them.
Nevertheless, even though I opposed the seditious conspiracy charges on legal grounds, I did not support the pardoning of violent offenders who attacked police officers.
The court system plays a key role in either tamping down or fueling rage in society. The book details how “rage rhetoric” often became state rage during periods of crackdowns on free speech. Over the last two centuries, some judges used their courtrooms to lash out at political opponents, anarchists, unionists or communists.
I was particularly concerned in these cases with sentences that seemed visceral, even gratuitous, in denying free speech rights.
In Washington, judges imposed limits on what political views defendants could read or share.
For example, Judge Reggie B. Walton, a Bush appointee who had previously called Trump a “charlatan,” had before him a typical Jan. 6 case — that of Daniel Goodwyn, 35, of Corinth, Texas. Goodwyn pleaded guilty on Jan. 31, 2023, to one misdemeanor count of entering and remaining in a restricted building. It is a minor offense that generated little jail time.
However, Walton faulted Goodwyn for appearing on Fox News and spreading “disinformation,” and so he ordered the government to monitor what he was viewing and discussing. The D.C. Circuit Court of Appeals rebuked Walton for that surveillance order, but he doubled down. On remand, the Biden Justice Department insisted that Goodwyn was unrepentant and still viewing “extremist media.”
Walton, therefore, determined that the risk was too great in Goodwyn spreading “false narratives” when we are “on the heels of another election.”
Now, his colleague is similarly ordering that those freed under Trump’s commutations will disclose and seek approval to go to the Capitol to speak with members or other citizens.
Many of us have long viewed the Jan. 6 riot as a desecration of our constitutional process. Few people want to defend Rhodes or either the Oath Keepers or the Proud Boys. However, the First Amendment was not written to protect popular speech or popular individuals.
The Mehta order should not push President Trump toward converting these commutations into pardons. It should also not prevent us from questioning the court’s authority to regulate the exercise of First Amendment rights.
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Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”