As Americans gear up for another tense presidential election, the U.S. legal system is still grappling with how to handle the hundreds of individuals who stormed the U.S. Capitol on Jan. 6, 2021, to keep former president Donald Trump in the White House.
Over 1,200 Americans have been charged criminally for their alleged actions during the riot, and more than 890 have been found guilty of federal crimes, according to the U.S. Justice Department. More than half of those found guilty have been sentenced to prison time.
And Trump, who was also criminally indicted for his alleged actions following his 2020 election loss, continues to propagate false claims of a stolen election and is again vying for the Oval Office.
Even after three years, law enforcement and federal judges are feeling the reverberations of what has become the largest criminal investigation in American history, and the public is still wrestling with how the assault on the citadel of U.S. democracy will define the country’s laws and politics.
U.S. Attorney General Merrick Garland on Friday said that “the Justice Department will hold all Jan. 6 perpetrators at any level accountable under the law whether they were present that day or were otherwise criminally responsible for the assault on our democracy.”
But there are factors at play that may prevent that from happening.
FBI is still looking for hundreds of people
The FBI and the Justice Department responded to the riot with one of the most sprawling law enforcement investigations in U.S. history, resulting in hundreds of convictions for crimes ranging from trespassing on Capitol grounds to seditious conspiracy.
Yet three years later, investigators have charged only a fraction of the estimated thousands of individuals who breached Capitol grounds that day.
On Thursday, U.S. Attorney for the District of Columbia Matthew Graves told reporters that prosecutors have primarily focused “on those who entered the building or those who engaged in violent or corrupt conduct on Capitol grounds.”
Thousands of images are still plastered on the FBI’s “Most Wanted” site for individuals accused of participating in the attack. And more than 80 people are still wanted for acts of violence at the Capitol.
Among those not yet arrested is the person who placed pipe bombs near the Republican National Committee and Democratic National Committee headquarters in Washington, D.C., the night before the riot. Law enforcement agencies are offering a reward of for information leading to an arrest of that person.
Possibility of presidential pardons
On the campaign trail and in his own court proceedings, Trump has vehemently pushed falsehoods about the riot – going so far as to offer support for convicted rioters, calling them “” of the Biden administration.
In CNN’s May town hall, the former president – who faces his own charges related to the Jan. 6 Capitol attack and efforts to subvert the election – promised he will pardon a “large portion” of Jan. 6 rioters “very early on” if he were reelected.
“I am inclined to pardon many of them,” Trump said. “I can’t say for every single one, because a couple of them, probably they got out of control.”
Such a pardon would certainly be in Trump’s power were he to win the 2024 election.
“The president often pardons named individuals,” Jeffrey Crouch, an assistant professor at American University and the author of “The Presidential Pardon Power,” told CNN. “The president can also issue a proclamation that does not specify names, but instead mentions – for example – the group of covered offenders, the laws that were broken and are included in the scope of the pardon, and a time span that the pardon applies to.”
Several other presidents – including Joe Biden, who of simple marijuana possession – have issued mass pardons before.
“Perhaps the best-known examples are the Civil War and Vietnam War amnesties,” Crouch said.
Other Republican candidates have also proposed pardoning rioters if they assumed the presidency. Florida Gov. Ron DeSantis said this week that, under his administration, individuals convicted for their actions that day would be able to apply for pardons and clemency.
Legal challenges to some charges are ongoing
The U.S. Supreme Court has said it will consider whether a federal obstruction law can be used to charge some alleged members of the Jan. 6 mob, a case that could have implications for Trump’s own election subversion case in DC.
The obstruction law at issue, which makes it a crime to corruptly obstruct an official proceeding, has been used to charge hundreds of members of the pro-Trump rioters who aimed to stop Congress’ certification of Biden’s 2020 electoral college win and to charge the former president himself for his alleged efforts to remain in power.
A federal judge in D.C. threw out the obstruction charge against a few Jan. 6 defendants after finding that the alleged conduct of the defendants wasn’t directly aimed at tampering with records, documents or other objects related to an official proceeding – which is how the law has generally been used in the past.
But the federal appeals court in DC reversed that ruling, and the justices last year from one of the defendants, Joseph Fischer, and will decide this term the scope of the obstruction law.
Fischer has pleaded not guilty to several crimes related to the Jan. 6 attack, and his lawyers told CNN they “firmly believe the statute does not apply to his conduct.”
“This statute’s historical context and purpose was to deter people who would actually destroy or otherwise impair evidence in connection with an investigation or a specific congressional inquiry,” said Jeffrey Green, Fischer’s lawyer. “It is not a statute that criminalizes the disruption of the ordinary course of government business.”
If the Supreme Court ruled in favor of their client, Green said, the most immediate effect “would be the dismissal of a number of pending charges” against some Jan. 6 defendants. Which cases are dismissed “turns quite a bit on the individual defendant and facts like what exactly they did or didn’t do,” said Fritz Ulrich, another of Fischer’s attorneys.
Of the hundreds of individuals convicted for their actions that day, two dozen people have been convicted solely on the obstruction charge, according to D.C.’s U.S. attorney’s office.
It isn’t yet clear how a decision by the high court to overturn the Justice Department’s use of the obstruction statute would affect special counsel Jack Smith’s case against Trump.
“I do think that our position would probably make Jack Smith’s prosecution on the same charge more difficult,” Green said.
