Trump's Pardons: Political Violence, Hate Groups, and the Rule of Law

Brendan Ballou: The United States has not had to deal with state-supported vigilante violence really since the Ku Klux Klan. I think most of us have been lucky in spending our adult life in a system that does not have that. I think it’s almost unquestionable that that is in our future.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all our new episodes as soon as they’re available.

Well, the first week of the Trump administration has been a whirlwind of executive action, and perhaps none of those actions have been more widely followed than one of the ones we’re going to be talking about on today’s program. Today we’re going to be talking about the January 6th pardons, hate groups, and political violence in the United States, and I’m joined by two guests. One of those guests is my colleague Shirin Sinnar. Her scholarship focuses on the legal treatment of political violence, on the procedural dimensions of civil rights litigation, and on the role of institutions in protecting individual rights and democratic values, particularly in the context of national security. She’s also been involved with the California State Commission on the State of Hate, which was a commission that designed by the Governor to assess data, to support victims, and to make policy recommendations related to hate crimes. And she’s also testified in front of the House of Representatives. And so, she’s an expert on a number of the different areas that we’re going to be touching on today.

Our other guest is my former student and Stanford alumnus, Brendan Ballou, who was a lawyer at the Department of Justice for five years. He was involved in prosecuting the Capitol rioters and wrote a really wonderful op-ed in The  New York Times that I highly recommend to you called, “I Prosecuted the Capitol Rioters, They Have Never Been More Dangerous.”

He resigned from the Department of Justice on January 23rd, soon after President Trump pardoned some 1,600 January 6th rioters, some of them people who had already been convicted, and others of them were ones where rather than pardoning them, he directed the dropping of charges against them. And then of course, some of these folks also, a small group, had their sentences commuted rather than having them pardoned.

So I’m really glad to have both of you on the show today. Thanks so much for coming.

Brendan Ballou: Thank you.

Shirin Sinnar: Thank you for having us.

Pam Karlan: So, I wanted to start with you, Brendan, and ask you about your experiences actually doing prosecutions of these folks. What kinds of things were they alleged actually to have done?

Brendan Ballou: Yeah, it’s a great question. And I should always start off, off the bat, that while I’m happy to talk about my experience with these prosecutions, I was a very small part of a very large effort. And so, when people really more central to this story leave government, I hope that they will tell theirs. To get to your question about what these folks were actually charged with: I will say that the, statutes used to prosecute the Capitol rioters were quite ordinary ones because, you know, while in the aggregate, the attack on the Capitol was enormous and essentially unprecedented, the individual crimes themselves were quite straightforward.

So just to briefly walk through sort of what the spectrum of charges were, on January 6, 2021, a restricted perimeter had been established around the Capitol to make clear that people weren’t allowed in, not just because the election was being certified, but as you may remember, the COVID pandemic was still raging. And so this perimeter was made clear with bike racks, with snow fencing, with signs, with police officers. And if a rider trespassed onto that restricted perimeter knowingly, they were charged with a cluster of misdemeanors, primarily 18 USC 1752, which prohibits trespass and disorderly conduct on restricted building or buildings or grounds.

So, for most of the people that attacked the Capitol, those were the table stakes. Things then progressed along a spectrum depending on what their conduct was. So, if they assaulted a federal officer. Well, we’ve got a statute called assaulting a federal officer 18 USC 111 that they would typically be charged with. If they stole or destroyed property, they might be charged with 18 USC 1361 or 664. And then there was sort of a broader range of conduct like things that maybe wouldn’t necessarily fit the exact definition of assault because they didn’t touch an officer or somebody in the Capitol, but nevertheless were involved in violent conduct.

For instance, being involved in a sort of heave ho with police officers. Oftentimes, they would be charged with what we would call civil disorder, 18 USC 231. All of which is to say that these were very standard charges because, like I said, the individual crimes at issue were pretty straightforward.

Pam Karlan: Yeah, I mean, one of the things that really struck me is, you know, President Trump acts as if this was just a kind of stroll in the park, it was a group of people who went down to the Capitol. But when you look at the videos, and I imagine in a number of the cases that you prosecuted, one of the pieces of evidence was actual video of this particular person, you know, pushing a police officer, hitting a police officer, breaking a window or the like.

You know, there’s something just striking about, as you say, the fact that these were ordinary crimes that if they had simply been committed by a random person, there would be no controversy about prosecuting them. If somebody had gone up to the Capitol on any other day and had, you know, socked a police officer and tried to grab the police officer’s billy club, of course, they would have been prosecuted. Right?

Brendan Ballou: Yeah, absolutely. And I think this gets to a broader point, both about the prosecutions and about the pardons. And I’m sure Professor Shirin Sinnar will have comments on this, which is, I think this is a very standard playbook in illiberal democracies or illiberal agendas in that they often need to rewrite their violent creation history.

You see this happening in Brazil where Bolsonaro is now trying to rewrite the history of that country’s military dictatorship. You see that in Russia where Putin’s government is trying to essentially re-convict dissidents during the Soviet era who were acquitted in the 1990s. We’re at a point where a great many politicians’ careers, in some sense, depend on rewriting the history of January 6th.

And so, to get back to what you were saying at the beginning of your question about video evidence, I think when people see the videos from that day–and I saw this happen personally when I watched jurors see videos in trials–it’s really hard to refute the reality of what happened at the Capitol. And so I think the challenge for the coming years will be to find ways to keep the memory of that event and the truth of that event alive and prevent it from being rewritten.

Pam Karlan: Yeah, Shirin, I was going to ask you to kind of back up from the day itself to the people who created the day, because that’s one of the things that you really study.

Shirin Sinnar: So, there were a group of people for whom it was an actually very concerted effort to bring people to the Capitol armed in order to assault the institutions to prevent the certification of the election. And a number of people were, in fact, convicted of seditious conspiracy including members of the Oath Keepers and the Proud Boys.

And with those organizations and the particular individuals who were charged with seditious conspiracy, there was evidence that they had been involved over a much longer period of time, meaning weeks before the assault on the Capitol in planning to go to the Capitol, to use force, to bring in weapons, and so for that group of people, the charges were different, the punishment was different, and their involvement was much more overtly based on creating and using political violence. The other part of what I think needs to be repeated is that, of course, there was a high-level campaign from President Trump to discredit the election. And so, as we talk about this and the people who actually stormed the Capitol, of course, it shouldn’t be lost that the rhetoric was coming from the very top.

Pam Karlan: Right. And, and of course, President Trump was indicted on a number of counts relating to January 6th, ranging from counts that involved essentially fraud. But he wasn’t, oddly enough, charged with, for example, seditious conspiracy or those kinds of charges. Why do you think, Brendan, that they chose the charges they did? I mean, I thought it was really interesting in reading Jack Smith’s report, which I’ve taken a look at, to see that he didn’t think he could bring a charge of insurrection, because insurrection requires you to be trying to get rid of the current government, and the current government were the people who were engaged in the conspiracy to essentially barricade themselves in office.

Brendan Ballou: Yeah, no, I think you’re bringing up a lot of the ironies or paradoxes of that prosecution. I wasn’t on that team, and so I certainly can’t speak to their deliberations. The sense that I got was that they were trying to bring as narrow a case as quickly as possible. The idea being that they wanted. If not some slam dunk charges, then ones that weren’t going to get bogged down in extensive appellate litigation. Obviously, that turned out not to be the case.

Pam Karlan: Yeah, and one of the things that I kept sort of thinking is, after the Supreme Court decided the Trump v. United States case, and essentially made it impossible to prosecute Donald Trump for much of this stuff, although I think Jack Smith’s team made a major effort on remand to kind of narrow the case down to things that didn’t involve his presidential acts–did that change the dynamic on the politics of pardoning or commuting the sentences of these other folks?

Shirin Sinnar: Well, in some sense, it made it even more important that if the president were to be considered immune for his official acts, then at least the vast numbers of people who are involved …who were involved in this effort to keep him in power had some sort of accountability against them. I think that the more broadly that the pardon power is invoked, and, you know, certainly the messaging of this use of the pardon power, means that the hope of accountability for all of those who are supporting such an effort is much less, and I think that connects back up to a point that Brendan made a few minutes ago, which is that, you know, the legal results are one thing, but equally important at this point is to preserve the understanding of what happened on January 6th, now that the individuals involved have had their sentences either pardoned or commuted.

Pam Karlan: I mean, one of the interesting things about a pardon is you generally think of a pardon as something that’s given to somebody who was guilty of a crime to say, you know, we’re going to wipe that out, but it’s not generally thought that a pardon eliminates the guilt. It eliminates the consequences of the criminal conviction, that is after the pardon, you’re not kept in jail, your civil rights that are taken away from people who’ve been convicted are given back to you. So, for example, you can vote again, you can get various kinds of licenses, you can open a bar, whatever. But the interesting thing here is that it seems as if what President Trump is trying to do is not to simply say, “I’m pardoning these people who were guilty.” He’s trying to say they weren’t guilty in the first place. And that goes, I think, Brendan, to your point about how is this going to be understood historically?

Brendan Ballou: Yeah, yeah. And I think I think you’re exactly right. The thing that concerns me the most, and I think what motivated me to try to write that piece, was I think that the president or this administration was sending a very clear message that those who enact violence on this administration’s behalf will be rewarded and in some sense literally put above the law.

You know, the United States has not had to deal with state-supported vigilante violence really since the Ku Klux Klan. I think most of us have been lucky in spending our adult life in a system that does not have that. I think it’s almost unquestionable that that is in our future. And I think it’s unquestionable because many of the people who were pardoned or who had their sentences commuted have said that that’s the objective. Enrique Tarrio, the former leader of the Proud Boys, said that he … that success was going to be retribution and quote, “now it’s our turn.” Jacob Chansley, the QAnon shaman, that’s so memorable in so many videos, announced on his release that he’s going to buy guns.

And at least one person who was not himself arrested but was perhaps involved in some January 6 activities, said that not only would he storm the Capitol for the President, that he would join a militia for the President and he would die for the President. And so I think it’s pretty clear that this was, this is the effect of the pardons. And I suspect, at least in part, it was the intention.

Pam Karlan: Yeah, I mean, I had that same feeling when I saw the pardons that what he was essentially saying to these people is, “I’m letting you out on the streets again and do this again, I’ll pardon you again,” or more to the point, “Do this again while I’m in the White House, and I will not charge you.”

You know, and this goes back to things he would say at the rallies like, “If you beat people up, I’ll pay your legal fees.” I mean, that was a notorious statement he made at a rally for his in his first campaign. And he’s sort of now suggesting that kind of systemically.

Shirin Sinnar: Right. I think that’s right. And you know, if we think about the rhetoric of the President, even in the first administration, where just a few weeks before the election, he was telling the Proud Boys to “stand up and stand by” during presidential debates–this has been somewhat of a through line, the encouragement, the tacit at least, encouragement of political violence. But this message sent by this full-scale clemency is much greater. And just to return to a point that Brendan started off by saying a moment ago, which is that we do have this relationship between state violence and private or paramilitary violence in the U.S. and actually on the right, it has often been the case that white power groups paramilitary groups have moved back and forth from being against the state, even at times declaring war on the state, and claiming to act on behalf of the state. And during the first Trump administration, we saw this too with groups like the Proud Boys and the Oath Keepers, which had traditionally seen themselves as revolutionary groups, but now saw themselves as defenders of the President, defenders of the president against threats posed by immigrants or the left and so forth. And so I think what we’re going to see is an  even greater development of relationships between paramilitaries and state institutions, such as the police, such as the military, such as even people in political office.

We have had members of the proud boys and these groups run for political office. That’s probably increasingly going to be in our future. And just as we’re thinking about this kind of the broader historical arc here, I’m recalling a point that the historian of fascism, Timothy Snyder, has made about paramilitary groups, which is they first challenged the police in the military.

Then they penetrate the police and the military, and finally, they transform the police and the military. And we may be at earlier stages of this process, but this really is, I think, one of the longer-term fears that over this period, we may see even greater collaboration and entry of people who have been on the sidelines into positions of even greater political power.

Pam Karlan: So, Brendan, we’ve seen one thing that’s happened now, is there’s been this set of pardons. I noticed that you’ve resigned from the Department of Justice. What do you think the next steps are? What ought we to be doing at this point beyond kind of what you talked about initially, which is trying to keep the history of this alive so that people remember what actually happened, as opposed to what the story is that’s being told today?

Brendan Ballou: Absolutely and I appreciate the question. I think that the next steps fall into a couple of different categories. One is to think specifically about the future of militia violence and where we have gaps in state-level laws. I will say that there are restrictions on militia training and activity in all 50 states.

Some states are more aggressive in policing militia activity than others. I think about half of states prohibit militia training, parading, and so forth. I’ll say that the Institute for Constitutional Advocacy and Protection over at Georgetown has been doing really important work in drafting model legislation to fill in some of the gaps on the law around militia violence, including making sure that violent militia training, interference with government proceedings, interference with individuals’ constitutional rights are in fact prohibited under state law.

So, for those people that are interested in this issue and think it’s important, I’d encourage them to get in touch with that organization. But I’d also say that more than just changing our laws, I think it’s going to be important to change our priorities. I think that the primary targets of vigilante or militia violence will not necessarily be the headline names in the news–very famous and important people. But rather the minority groups that this administration targeted over the course of the most recent campaign: migrants, trans people, women and others. And so, I think it’s going to be important in a world where at least the very top of federal law enforcement may not be interested in protecting these groups–I won’t speak for the line level people in the FBI and DOJ—I think it’s going to be important to convince or to work with local law enforcement to help them understand the risk to these groups and to prioritize protecting them.

And so, for folks that are interested in that issue, I would really encourage you to think about and reach out to the local organizations that work on migrant issues, that work on trans issues, and so forth and see how we can engage governments.

The final point to give a long answer to your short question: It goes back to what you said at the beginning which is preserving the memory of this day. As I said, I think a lot of politicians’ careers now depend on rewriting the history of January 6 and I think there’s going to be a great and sustained effort to do so. So whether it’s just memorializing it every year or talking about it on social media or trying to preserve the records and evidence, I think it’s going to be really important to do so because the history of that day is a contested topic and something that people are going to be continuing to work on.

Pam Karlan: Yeah, I mean, that was one of the points of George Orwell’s 1984, where they would just rewrite the newspapers and throw the old newspapers down the memory hole. And the question today, when everything is so digital, is you know, whether that becomes even more of a risk.

Brendan pointed to states and localities as one source of pushback on what happened on January 6th and like, and I was listening to a recent interview with another Stanford alum, who’s a prosecutor, Larry Krasner, who’s the DA of Philadelphia, who was saying, you know, it’s possible that some of the folks who were pardoned, by President Trump might be liable under state law for violations of state criminal law, which just as a matter of, you know, straight up doctrine, the President lacks the power to pardon.

Shirin Sinnar: That’s right. And I’ll say something about that and something then also more generally about state-level criminal prosecutions in this kind of political context. So, because we have this doctrine of dual sovereignty, it means that states can prosecute people for similar conduct as federal authorities, and there are jurisdictional questions, but if some of the conduct in question, for example, some of the planning for activities that occurred on January 6th happened within a state, there may be a jurisdictional hook as well for that-state level prosecution. So that is an option for at least some subset of the particular defendants who were pardoned on January 6th.

But I think the bigger question of how much do we want to change state law and criminal law is actually quite complicated and one for which I think my primary position would be: tread very carefully. And that’s important because we see how states in recent years have adopted, for instance, domestic terrorism laws, and then we see who they are used against.

So, for instance, in Atlanta, the state of Georgia adopted a new domestic terrorism law a couple of years ago. It was in some ways promoted on the basis that it would be a vehicle for going after white supremacists. And in practice we’ve seen that law used against people protesting the police and environmental causes in Atlanta. So we now have a slew of people facing these really severe penalties who are not actually some of the people intended by the law. It has not been used for people who traditionally escaped. It’s being used against the same people who are often on the receiving end of state violence. So that is an area in which state and local governments ought to move extremely carefully.

Pam Karlan: Well, and that goes back to something that, that I think, Brendan, you were kind of pointing at, which is people have to organize in the communities they find themselves in, so that they have prosecutors who prosecute hate groups and don’t repurpose hate crime statutes to go after vulnerable groups and the like. And so that ultimately there’s a kind of political underpinning, I think, to all of this.

Brendan Ballou: Absolutely. I think that this is just a matter, as much a matter of using the democratic process to make sure that our existing legal authorities are, you know, pointed at the right risks, as much as it is, you know, as Shirin said, developing any new laws, which, you know, obviously is a very delicate and often fraught process.

Shirin Sinnar: I just wanted to second the idea that so much of this is actually outside the strictly legal process, and in the realm of politics. So, what high-level institutions of any kind do, what our social media platforms do, what do universities say and do, what the media does in response to the rule of law challenges we’re facing will have as much, if not more impact on political violence, ultimately than just the prosecutions. So, for instance, when we think about questions like fact checking on Meta or other social media platforms, if we’re in a realm where even the facts about what happened are things that are extremely difficult to establish, and because of the decisions of some of our institutions, or if our institutions are falling all over themselves to not just stay silent, but in fact acquiesce to policy changes at the top that itself affects rule of law and our democracy as much as, or in fact, far more than the individual decisions about who to prosecute for actual crimes.

Pam Karlan: Yeah, and you know, we’ve been talking about the January 6th pardons, but there was another set of pardons and commutations that Donald Trump issued this past week, the first week he was in office, in addition to that, and that was, he decided to pardon a number of people who’d been convicted of violating the federal FACE Act, the Freedom of Access to Clinics Entrance Act, which is a law that makes it a crime for people to interfere with the ability of individuals to gain access to reproductive health clinics and the like. And many of these clinics perform a variety of different health services. So, they provide contraception, they provide, you know, pap smears and testing for cervical cancer, they give HPV vaccines and the like, but also perform abortions or provide medication abortions, giving people the pills that they can take to terminate a pregnancy. And the President pardoned a whole bunch of people who were convicted under this law as well. And it seems to me this goes to the point that you both have been raising about the President just kind of encouraging lawlessness by a particular segment of the population.

Shirin Sinnar: I think that’s right. And it actually goes to a point that one of our colleagues has made, which is that when we see some pardons historically were given to people who committed political violence, but in order to bring them back into the fold. So, for instance, you know, President Washington pardoned some of those involved with the Whiskey Rebellion years ago, and that is very different from pardons that seem to be much more about greenlighting the violence that they actually engaged in. So, a pardon against someone who is known and understood to be responsible is very different from a pardon that seems to be about eliminating the very idea of accountability.

Pam Karlan: Yeah, and it’s one of these things where even sometimes where President might be saying, and perhaps even legitimately or in good faith thinking that pardons are going to bring people back together, they often do exactly the opposite. And the thing I’m thinking about here is the Civil War and the pardoning of a number of Confederates after the Civil War, which I think really created a green light for them to resist Reconstruction and then to engage in redemption, and I do kind of worry that we’re seeing that again, that is, the President says, “I want to bring us all back together about this” and the Republicans say, “Let’s all just look to the future and stop thinking about the past,” even though many of them thought on January 6th that these people should be prosecuted and thought as late as the day before the President issued the pardons that of course you wouldn’t pardon the ones who’d engaged in violence as opposed to the ones who’d simply engaged in trespassing. I think what he really has done here is given a signal that he’s not trying to bring us together at all.

Brendan Ballou: You said it exactly right. I will say just very briefly that I think that the Civil War analogy is exactly right. And in fact, without getting into details, it’s something that my colleagues and I were talking about in advance of the election. I think it’s a very … I think it’s a very apt comparison, both in terms of the violence that it potentially inspired, or will inspire, but also, you know, to return to a theme that we’ve been talking about, about this idea of a contested history, that it was an attempt to rewrite the period of the Civil War and the period immediately afterwards. I think that it, you know, arguably took 150 years to get towards a fairer conception of what Reconstruction truly was. I hope it takes less time this time around.

Pam Karlan: Yeah, Stanford asks us every year to give people some books they should read and, you know, faculty come up with books that they think people would find really interesting, and one of the books that I suggested this year, because I was rereading chunks of it for something I’ve been working on, is W.E.B. Du Bois’ Black Reconstruction in America, which gives you a much fuller account of the boldness and hope of Reconstruction and how that boldness and hope got lost. And it’s a reminder that, to go back to something that Shirin said earlier, it’s a reminder of how we ended up in a period before where there was state-sponsored violence in the South by Southern governments against their Black citizens, and something that, obviously, worth our remembering as we move forward.

Brendan Ballou: Absolutely.

Pam Karlan: So I want to thank Brendan Ballou and Shirin Sinnar for joining us here on Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and it helps new listeners to discover us.

I’m Pam Karlan. See you next time.