In the aftermath of the near blanket pardons issued by President Donald Trump on Jan. 20 for all persons prosecuted in connection with the events of January 6, 2021, the loudest criticism always goes something like this:
“President Trump has released hundreds of dangerous criminals from prison even though they pled guilty or were convicted by juries or judges, including some appointed by Trump himself.”
But is it fair to characterize everyone caught up in the criminal justice process in the District of Columbia as “criminals” – dangerous or otherwise – if there was no fair process available to reach a judgment as to their guilt?
WILLIAM SHIPLEY: THE CONSTITUTIONAL REASON WHY TRUMP’S SWEEPING JAN. 6 PARDONS WERE JUSTIFIED
Sure, there were trials. Defendants could put their fate in the hands of jurors picked from perhaps the most anti-Trump jury pool in the nation, or they could choose another option. They could ask for a “bench trial,” where the judge – including some appointed by Republican presidents – would hear the evidence and render verdicts. That had to present the opportunity for a fair trial even when a jury trial would never be fair, right?
In my 21 years as a federal prosecutor, with dozens of criminal trials involving a myriad of federal crimes from drug trafficking to tax fraud, I never had a single case where the defendant opted for bench trial over a jury trial. In the 12 years that have followed as a criminal defense attorney — all in federal court – I had never recommended a bench trial to a client.
But when it came to representing January 6 clients, I advised all except one to waive their Sixth Amendment right to a jury trial and have their cases decided by a federal judge – regardless of which president appointed them. The one exception was a case where the defendant had pled guilty and made admissions under oath to the judge who would have decided his case. After withdrawing his guilty plea, it seemed the better option to take a shot with a jury rather than try to win over the judge to whom he’d already admitted his guilt.
I have not tried to determine the total number of bench trials in January 6 cases. The fact that there were any at all was an anomaly. But I was far from alone among defense attorneys who, knowing the Washington, D.C., jury pool, recommended bench trials for clients. And in the five bench trials I was involved in during 2024, every judge told the federal prosecutors to skip the evidence of the “events of the day.” Their reason? They’d heard it all many times before. Instead, prosecutors were told to fast forward to evidence specific to the defendant.
And THAT is why the bench trials were a double-edged sword. When the judges have heard evidence about what happened that day so many times that they tell prosecutors to skip over it, you’ve lost the benefit of a completely unbiased, neutral factfinder.
This brings me to the pointed and unjudicial comments made by several of the U.S. District Court for the District of Columbia judges in the aftermath of the sweeping pardons issued by President Trump. See if any of them sound neutral or objective:
District Judge Beryl Howell: “No ‘national injustice’ occurred here, just as no outcome-determinative election fraud occurred in the 2020 presidential election…. No ‘process of national reconciliation’ can begin when poor losers, whose preferred candidate loses an election, are glorified for disrupting a constitutionally mandated proceeding in Congress and doing so with impunity.”
District Judge Colleen Kollar-Kotelly: “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.”
District Judge Tanya Chutken: “No pardon can change the tragic truth of what happened on January 6, 2021…. The dismissal of this case cannot undo the ‘rampage [that] left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage.’ … And it cannot repair the jagged breach in America’s sacred tradition of peacefully transitioning power.”
District Judge Amy Berman Jackson: “[Dismissals are] contrary to the manifest public interest in upholding the rule of law…. [Police Officers] are the patriots. Patriotism is loyalty to country and loyalty to the Constitution – not loyalty to a single head of state…. No stroke of a pen and no proclamation can alter the facts of what took place on January 6, 2021. When others in the public eye are not willing to risk their own power or popularity by calling out lies when they hear them, the record of the proceedings in this courthouse will be available to those who seek the truth.”
District Judge Paul Friedman: “The proclamation’s assertion is factually incorrect. There has been no ‘grave national injustice…. “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….“
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Not all the district judges saw the need to offer their own views on Trump’s pardons. But all had condemned the “events of the day” in the most strident language imaginable at pretrial hearings, rendering of verdicts, and pronouncement of sentences. Judge Emmet Sullivan even called one defendant a “terrorist” and commented on his “bad character” before the defendant ever had an opportunity to present any kind of defense.
The views of all the judges in the District of Columbia were well understood. Yet, faced with the same question, whether to waive the right to a jury trial or take our chances with the judges who had expressed the views above, I would give the same advice today that I started giving three years ago – submit to a bench trial and let the judge decide. That’s how biased the jury pool in Washington is.
When the critics of Trump’s pardons mistakenly assume the fairness of the underlying convictions, the actual absence of such fairness deals a fatal blow to the legitimacy of their claims.
