Justice Department: Jan. 6 Defendants Who Accept Pardons Will Make ‘a Confession Of Guilt’

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.

But Jan. 6 defendants 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.

“The criminal justice system cannot operate on such uncertainty. Indeed, it is neither the court’s role or function to speculate about any president’s pardon decisions, nor is it appropriate for the Court to halt the normal functioning of criminal procedure based solely on that speculation,” the prosecutors wrote.

“If a future Executive cannot, today, grant a pardon, this Court cannot expand the temporal grace that Executive may or may not extend in the future to … affect the present,” the DOJ attorneys added.