Jan. 6 riot defendants celebrate Trump’s election, angle for pardons

Some defendants charged in the Jan. 6, 2021, Capitol attack reacted to Donald Trump’s election victory with elation Wednesday, as their defense lawyers began taking steps to delay trials or sentences in ongoing cases in anticipation of presidential pardons or more lenient treatment from a reshaped Justice Department.

Trump has made pardoning Jan. 6 defendants a signature campaign promise, though he did not raise the subject in his speech declaring victory Wednesday in West Palm Beach, Florida. The president-elect also has not made clear who among the group of 1,500-plus people charged would receive pardons, though he has declined to rule out anyone, including members of extremist groups such as the Proud Boys and Oath Keepers, whose leaders were convicted of seditious conspiracy.

Trump’s campaign has said he would decide “on a case-by-case basis when he is back in the White House.” In a statement regarding Trump’s own criminal prosecutions, campaign spokesman Steven Cheung said, “The American people have reelected President Trump with an overwhelming mandate to Make America Great Again. It is now abundantly clear that Americans want an immediate end to the weaponization of our justice system, so we can, as President Trump said in his historic speech last night, unify our country and work together for the betterment of our nation.”

Among those celebrating was Timothy Hale-Cusanelli, a security guard at a Naval base who was one of the first rioters to enter the Capitol. He was convicted by a jury for obstructing an official proceeding in 2022 and was sentenced to four years in prison. In court, he told jurors, who weren’t allowed to see evidence of his support for white supremacy and Adolf Hitler, that he didn’t realize Congress met in the Capitol. At a later sentencing hearing, he called his own behavior “unacceptable.” He struck a different tone Wednesday.

“I spent 3 years behind bars for protesting against Biden’s rigged election,” Hale-Cusanelli said. “I waited patiently for this day … All my dudes from the Gulag are coming home from prison … We were innocent on January 6 and we’re still innocent!”

On Wednesday morning, attorneys for Christopher Carnell, 21, of Cary, North Carolina, became one of the first of those representing a Jan. 6 defendant to ask a federal judge in Washington to delay a hearing because of the election results, citing in part Trump’s promises to abandon riot prosecutions.

“Throughout his campaign, President-elect Trump made multiple clemency promises to the January 6 defendants, particularly to those who were nonviolent participants,” Carnell’s lawyers wrote in a court filing. “Mr. Carnell, who was an 18-year-old nonviolent entrant into the Capitol on January 6, is expecting to be relieved of the criminal prosecution that he is currently facing when the new administration takes office.” Carnell’s request was denied.

Representatives of convicted Jan. 6 rioter Jaimee Avery of Phoenix similarly asked that her misdemeanor sentencing scheduled for Friday be postponed.

“In light of the real possibility that the incoming Attorney General will dismiss Ms. Avery’s case,” assistant federal public defender Elizabeth Mullin wrote, “or at the very least handle the case in a very different manner, it would be fundamentally unfair to Ms. Avery to move forward to sentencing under these circumstances.” She and her husband pleaded guilty to two misdemeanor trespassing counts, and prosecutors are seeking 30 days in jail for both, although D.C. judges typically have imposed probation on defendants who committed no violence and pleaded guilty to misdemeanors.

U.S. District Judge Christopher R. Cooper rejected the motion later Wednesday. Prosecutors had quickly objected to a delay, saying that “there is a societal interest in the prompt and efficient administration of justice” and “the Court should proceed as it would in prosecuting any crime.”

William Shipley - an attorney who has represented more than two dozen riot defendants, including “QAnon Shaman” Jacob Chansley - said he would file similar motions to pause each of his cases with a scheduled sentencing or trial date, although a judge on Wednesday rejected Shipley’s bid to push back a case set for trial next week.

“I can’t predict what will actually happen but something will likely happen, and it is certain that the DOJ sentencing memos, if submitted under a Trump Admin, will be substantially different than those being filed now,” Shipley said in an email. “As for trials, those defendants are presumed innocent, and a delay may end up obviating the need for any trial at all.”

As of last month, more than 1,530 people had been charged in the riot, including about 570 charged with assaulting, resisting or impeding law enforcement officers or with rioting, including about 160 defendants charged with using a deadly or dangerous weapon or causing injury. About 1,200 have pleaded guilty or been found guilty at trial, roughly two-thirds for misdemeanors such as trespassing or disorderly conduct on restricted Capitol grounds.

Of about 1,000 defendants sentenced, about 615 were sentenced to incarceration, according to prosecutors.

A spokesperson for the U.S. attorney’s office in D.C., which is handling the prosecutions, declined to comment. Prosecutors continued to file sentencing recommendations Wednesday, and judges in the U.S. District Court in D.C. continued to schedule trials into the new year.

James Lee Bright, an attorney for Oath Keepers founder Stewart Rhodes, who is serving an 18-year sentence while he appeals his conviction for plotting to commit political violence to prevent Joe Biden’s 2021 inauguration, said clients and attorneys are beginning to grapple with how to approach the new administration with requests.

“It’s hard to know what’s going to happen in all honesty. … The cynic in me questions whether promises will be fulfilled. I kind of question that of all politicians. We’re going to have to wait and see to what extent he does commute, pardon, or reduce [sentences],” Bright said. “The first thing I’m going to have to do is reach out to Stewart and get guidance from him.”

An attorney for former Proud Boys head Henry “Enrique” Tarrio, sentenced to 22 years for leading the group on Jan. 6, lauded Trump’s election victory in a statement and said Tarrio’s defense “will explore every possible avenue to seek the release from custody.”

Nayib Hassan said, “We look forward to what the future holds, both in terms of the judicial process for our client and the broader political landscape under the new administration. We remain hopeful that the courts will recognize the merits of our appeal, and we are optimistic about what lies ahead.”

The Constitution gives presidents virtually unchecked authority to grant pardons. Trump granted executive clemency to 237 people charged with or convicted of federal crimes in his first term, fewer than most presidents did the previous century. But his pardons were marked by his exceptional circumvention of the typical Justice Department pardon process, and he disproportionately benefited those with whom he had a personal tie or who helped his political aims.

That made the pardon process less predictable for applicants. Toward the end of his first term, Trump pardoned several aides convicted in connection with a special counsel investigation into his campaign’s possible ties to Russia, including 2016 campaign chairman Paul Manafort and political confidant Roger Stone. In doing so, he spared Stone from serving a 40-month sentence for lying to Congress, witness tampering and obstructing a House investigation, and cut short a 7½-year sentence for Manafort, who was convicted of tax and financial fraud.

Trump also gave a full pardon to Michael T. Flynn, his former national security adviser, after prompting his Justice Department to drop the prosecution after Flynn pleaded guilty to lying to investigators.

On social media, Jan. 6 defendants celebrated. “We’ve been unburdened by what could have been,” wrote Adam Johnson, a Florida man who received two years’ probation after pleading guilty to misdemeanor trespassing, disorderly conduct and theft of government property, for taking a lectern used by then-Speaker Nancy Pelosi (R-California). Posting under the handle “The Lectern Guy,” Johnson posted “I. Want. My. Lectern,” along with a video of himself drinking from a glass of Trump-branded champagne.

“Y’all are in trouble!” he says on the video.

Jenny Cudd, of Florida, who was sentenced to two months’ probation, posted, “We won it all! Yay God! We, J6ers, are getting pardons! It was not in vain.”