It took nearly five years for the FBI to finally arrest someone for planting pipe bombs outside the headquarters of the Democratic and Republican parties on the eve of the Jan. 6 Capitol Hill riot, but the suspect may avoid serving a prison sentence thanks to the language in President Trump’s sweeping pardon of those who participated in Jan. 6 mayhem.
In that pardon issued on the day of his 2025 inauguration, Trump commuted the sentences of 14 people convicted of offenses springing from the Jan 6 demonstrations. Next, seeking to free some 1,500 others from convictions or pending prosecutions, Trump wrote, “I do hereby…grant a full, complete and unconditional pardon to all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021.”
It seems immaterial that the charges against Brian Cole Jr for planting bombs came after Trump’s pardon, notes former federal prosecutor Ankush Khardori, writing at Politico:
Trump could have specified that the pardon applied only to people who had been convicted or charged “as of the date” of his pardon…but there is no such language in Trump’s proclamation. Lest there be any doubt, the Supreme Court made clear more than 150 years ago that presidents have the constitutional authority to do this — that is, to issue “preemptive pardons” for past conduct even if that conduct has not been charged at the time of the pardon.
In another context — relating to Trump’s pardon of those who sought to send alternate slates of electors to the 2020 Electoral College — Trump’s DOJ has claimed it has the power to determine which crimes Trump intended to include, but courts may take a dim view of that kind of de facto delegation of presidential pardon power, particularly where the plain language of the pardon is unambiguous and deliberately sweeping.
Federal prosecutors are behaving as if they fully appreciate the pardon’s potential to set Cole free and render their efforts futile. In both court filings and remarks in a hearing, they avoided using language that links Cole’s alleged actions to Jan. 6.
Hellbound and Down 