President Trump may have pardoned the Jan. 6 defendants, but some of the Democrat-appointed judges who presided over the cases are furious at having to let 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 that day.
One judge flatly declared the defendants “insurrectionists,” despite no such charge having been brought, much less anyone convicted, of that allegation. Another said the pardons don’t fix “the jagged breach in America’s sacred tradition of peacefully transitioning power.”
The judge, Tanya Chutkan, said, “No pardon can change the tragic truth of what happened on January 6, 2021.”
“It cannot whitewash the blood, feces, and terror that the mob left in its wake,” said Judge Chutkan, who had been overseeing the special counsel’s prosecution of Mr. Trump until his election victory short-circuited that case, too.
Four years after the mob stormed the Capitol, clashing with police and disrupting the Electoral College vote count, Mr. Trump issued a broad clemency to all involved. He pardoned nearly all of the more than 1,500 offenders, commuted a small number of sentences, and ordered his acting attorney general to squelch cases still in the works.
Cases facing trial were to be dismissed, and those the FBI was still working on were to be shelved.
That sparked outrage from both Democrats and Republicans and spurred the startlingly pointed criticism from some of the District of Columbia’s federal jurists.
While dismissing cases, several judges have refused to dismiss them “with prejudice.” In theory, that means a future prosecutor could refile them.
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 taking the dismissals in stride, quietly signing orders and dumping them from the docket.
A few are delivering broadsides that sound like they were delivered by a backbench Democratic congressman 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, but Judge Friedman said they 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 Friedlander 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.
Another judge, Amit P. Mehta, had insisted on adding new conditions to some Jan. 6 defendants who had their sentences commuted. He ordered them not to “knowingly enter” the District of Columbia — particularly the Capitol complex.
On Monday, however, he backed off, saying he had reconsidered and decided Mr. Trump’s clemency should be interpreted broadly.
Mr. Trump’s pardons are raising other tricky legal questions.
In one case, Dan Edwin Wilson was released from a federal prison in Kentucky, where he was serving a 60-month sentence. But his lawyer says the feds are now seeking to take him back into custody for gun charges.
Norman Pattis, the lawyer, said the search that turned up the guns was only done because of the Jan. 6 investigation, so it’s not clear whether his pardon also covers that.
The Trump administration has moved to erase some Jan. 6 records from the web. The Justice Department’s main database of defendants has disappeared, as has the FBI’s “Capitol violence” webpage.
The U.S. attorney’s office for Washington, which prosecuted the cases, has deleted its “Capitol Siege” page.
New 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 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 were Obama nominees.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.