Justice Department: Jan. 6 defendants who accept pardons will make ‘a confession of guilt’
Some defendants claim that Trump can issue “pardons of innocence,” but federal prosecutors told a judge that pardons would not wipe away their guilt.
by Kyle Cheney | December 11, 2024 | 3:57 PM EST
The Justice Department sent a message Wednesday to Jan. 6 defendants: Accepting a pardon from Donald Trump is “a confession of guilt” for your crimes.
“[A] pardon at some unspecified date in the future … would not unring the bell of conviction,” federal prosecutors argued in a Jan. 6 case before U.S. District Judge Carl Nichols. “In fact, quite the opposite. The defendant would first have to accept the pardon, which necessitates a confession of guilt.”
The pronouncement is the latest attempt by the Justice Department to salvage the legacy of its Jan. 6 investigation, which leaders say is the most sweeping criminal probe in American history. Trump has pledged to unravel that probe with the stroke of his pen by granting clemency to many of the nearly 1,600 people who have been charged for their roles in the attack on the Capitol four years ago.
The legal significance of presidential pardons, and whether they imply guilt, has been debated in courts for decades. The Supreme Court has opined that pardons often carry an “imputation of guilt” even if the consequences for that guilt are erased. And the Justice Department has previously concluded that even if pardons eliminate criminal consequences, those convicted of crimes can still face punishment in other forums, like professional ethics boards.
“A pardon … does not erase the conviction as a historical fact or justify the fiction that the pardoned individual did not engage in criminal conduct,” the Justice Department’s Office of Legal Counsel wrote in a 2006 opinion.
It’s more than just the Department of Justice. In Burdick v United States, 236 U.S. 79 (1915), the Supreme Court stated:
A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him.
A presidential pardon is, the court held, the property of the person to whom it was delivered, and the recipient had the sole discretion as to whether to accept or reject it.
Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy. This, at least theoretically, is a right, and a right is often best tested in its extreme. “It may be supposed,” the Court said in United States v. Wilson, “that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment.”
As it happens, two of the condemned prisoners whose sentences President Biden commuted from death to life in prison without the possibility of parole, Shannon Agofsky and Len Davis, rejected the commutations on the basis that they were appealing their convictions on the basis of innocence, and that to accept the commutations would jeopardize their appeals.
It is true we have said (Brown v. Walker, 161 U. S. 601, 161 U. S. 605) that the law regards only mere penal consequences, and not “the personal disgrace or opprobrium attaching to the exposure” of crime, but certainly such consequence may influence the assertion or relinquishment of a right. . . . .
This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.
The Supreme Court stated that yes, the acceptance of a pardon is a confession of guilt.
The Department of Justice was acting against the potential pardons of the kerfufflers:
have increasingly been seeking “pardons of innocence,” claiming Trump has the authority to grant them clemency without forcing an admission of guilt. Those who haven’t been convicted are hoping Trump’s Justice Department simply drops their charges, obviating the need for a pardon altogether.
The Justice Department’s comments on the effect of Jan. 6 pardons came in a court filing in the case of Dova Winegeart, who is seeking to delay her imminent jail term in anticipation of a possible pardon from Trump. Nichols, a Trump appointee, convicted Winegeart for damaging government property after a brief bench trial in October and acquitted her of several misdemeanor counts. On Monday, he sentenced her to four months in prison but agreed to hear arguments on whether the sentence should be delayed to await a potential pardon.
Winegeart is one of many Jan. 6 defendants who have been seeking to delay their sentences or pause their cases in light of Trump’s electoral victory and the potential for him to issue mass pardons when he returns to office.
Prosecutors sharply opposed Winegeart’s request and warned of far-reaching consequences to criminal justice if she is granted a delay based on speculation about a future pardon.
Naturally, the Department of Injustice wanted Miss Winegeart to go straight to jail, to have to serve out at least part of her four month sentence before President Trump took office and could pardon her. And the Attorney General and his minions want to have the record state that if the Capitol kerfufflers are pardoned, while their convictions would be legally wiped away and any punishments not already served wiped away, they would still be guilty, guilty, guilty.
President Biden tried to wipe that away for the individuals he pardoned:
“The issuance of these pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing,” Biden wrote each announcement, “nor should acceptance be misconstrued as an admission of guilt for any offense.”
Nope, sorry, wrong answer. Both the Supreme Court, whose rulings he cannot change, and his own Justice Department, have claimed that acceptance of a pardon is a confession of guilt. If any of the kerfufflers who accept the pardons are confessing their guilt, then so are those Mr Biden pardoned; he doesn’t get to have it both ways.
Personally, I’m glad Mr Biden pardoned so many people. They are now guilty under the eyes of the law, and the left can’t say anything about the kerfufflers being pardoned. Many, of course, have already served their sentences and paid fines — fines which should now be returned — but some are still in jail, and we will be as happy to see them released as the Israelis were when the hostages held by Hamas started coming home. Sadly, we can’t give them back their time.
