Pardons, Chris Wray, and DOJ's Inspector General

On Thursday, President Biden announced that he will commute the sentences of 1,500 people and grant pardons to 39 more. The difference being that with a commutation, a defendant’s sentence is shortened to the amount of time they have already served and they are eligible for release, while a pardon wipes out a conviction, making it as though it never happened. It was the largest grant of clemency in a single day by a president.

Both commutations and pardons are frequently granted to people who have, in fact, committed crimes and been adjudged guilty. The pardon power is intended to be a mechanism for providing mercy despite that. Examples range from releasing an individual who has demonstrated extraordinary remorse and rehabilitation to remediation of sentences that are viewed as excessive for an entire group under current standards. We see both of those types of clemency at work here. President Biden reflected, “I have the great privilege of extending mercy to people who have demonstrated remorse and rehabilitation, restoring opportunity for Americans to participate in daily life and contribute to their communities.” The commutations went to people who were released to home confinement during Covid and have successfully reentered their communities. The pardons went to non-violent offenders, many of whom committed low-level drug offenses in their 20s. The White House said they include “parents, veterans, health care professionals, teachers, advocates, and engaged members of their communities.” You can find a full listing with brief biographies for pardon recipients here.

The president also hinted that this was just the start and that he would “take more steps in the weeks ahead.” He said that his administration’s review of clemency petitions would focus on:

• Equal justice under the law, possibly a reference to clemency for people sentenced under outmoded marijuana possession laws,

• Public safety, a likely reference to reviewing petitions to ensure release is only available to non-violent offenders and to those who have demonstrated sufficient rehabilitation to give reason to believe they will not reoffend, and

• Rehabilitation, reentry, and providing meaningful second chances, important goals in both the Obama and Biden Administrations, using data-based best practices to reduce crime and strengthen communities, utilizing community based programs that reduce recidivism and help put families back together.

Biden’s commutations and pardons set up a sharp contrast to what we can expect when Donald Trump makes good on his promise to pardon January 6 offenders. While Biden pardoned people with a demonstrated commitment to rehabilitation, Trump seems to be contemplating pardons for people who have never shown remorse for attacking the Capitol, people who tried to aid him in overturning the election—rewarding them for that behavior seems to be the entire point. While Biden focused on non-violent offenders, many of the January 6 defendants, and especially those who attacked Capitol Police officers or were convicted in the Proud Boys and Oathkeepers cases, committed offenses where violence was involved.

Presidents have broad powers, including the power to pardon, that they hold as a public trust. Trump is already showing signs that he intends to abuse them.

Wednesday, FBI Director Chris Wray, who was appointed by Donald Trump after he fired Wray’s predecessor, Jim Comey, announced that he would be stepping down by the end of the year. This will clear the way for Donald Trump to put his choice, Kash Patel’s, name before the Senate for confirmation. Rather than forcing Trump to fire him, Wray appears to be set to go quietly into the night.

The FBI director is unique in that he is appointed to a ten year term in office. That came into existence in the wake of Watergate. J. Edgar Hoover’s 40-plus years as the director had led to entrenched power and its abuse, including its use to harass citizens like civil rights leader Martin Luther King, Jr. Hoover used covert surveillance against groups he deemed “subversive.” To prevent a repeat, Congress limited the director’s service to a single ten year term. Although appointed by the president in office when a vacancy occurs, the idea was that by spanning different administrations, the FBI’s law enforcement functions would be at least somewhat insulated from politics.

That worked reasonably well until Trump, with only Bill Clinton firing a director before the expiration of his term and then, only when allegations of ethical violations and misuse of government funds surfaced against Director William Sessions. After Trump tried but failed to extract a promise of personal loyalty from Director Jim Comey, he trumped up reasons to fire him as the Russia investigation became public. That’s when Chris Wray, who is now leaving, got the job.

Ironically, Thursday saw the release of a report by the DOJ Inspector General (IG) about how the FBI, under Wray’s leadership, conducted its work in the run-up to January 6. The report was undertaken to address questions about “how the breach had occurred and what was known by federal law enforcement in advance of January 6 about the possibility of a violent protest that day.”

But there has always been a sideshow to that serious question. Conspiracy theorists and Trump supporters have suggested that one or more FBI agents planted in the crowd instigated the insurrection. They maintained this despite the evidence to the contrary that surfaced during the January 6 committee hearings and the trials of the Proud Boys and the Oathkeepers.

So, predictably, Vice President-elect JD Vance decided to perpetuate the conspiracy theory after the IG report was released. The report reflects that there were 26 FBI confidential human sources (CHS) present at the Capitol on January 6. A CHS is not an FBI employee. The designation refers to an individual “who is believed to be providing useful and credible information to the FBI and whose identity, information, or relationship with the FBI warrants confidential handling.” Of the 26, four entered the Capitol building itself, and 13 made it into restricted areas. On this flimsy basis, Vance scoffed at people who had labeled the conspiracy theory a conspiracy theory.

Here’s the problem: The IG report makes it clear that the conspiracy theory is wrong. Yes, the FBI failed to canvass field offices for information ahead of January 6 like it should have, like it does in foreign terrorism cases. But it did not direct or entrap Trump supporters into participating in January 6. People who are occasional tipsters to the FBI—the people who were in the crowd—aren’t organizing and directing FBI policy. There were no FBI agents working in an undercover capacity present that day. It’s disturbing that the incoming vice president would suggest otherwise, that there was some sort of plot.

That, of course, sounds like one way of justifying the pardons that are coming. But we can be certain that if these defendants had been entrapped by FBI or other federal agents, they would have successfully offered that as a defense at trial or instead of a guilty plea.

The report confirms what we already know: that there was an internal failure of communication at the FBI in advance of January 6. Field offices didn’t report up. Assessments that should have been done fell short. All of that is essential and must be addressed to prevent repetition, which the report recommends. Beyond that, domestic terrorism must be treated by the FBI—no matter who the president is—as a serious threat to national security.

But none of that says that the FBI instigated January 6. The report concluded that “many of these 26 CHSs had provided information relevant to the January 6 Electoral Certification before the event and that a few CHSs also provided information about the riot as it occurred.” However, it stops there. There is no evidence that the FBI inspired anyone to take action that day. And that’s the core of the conspiracy theory still being circulated by at least one member of the incoming administration.

That takes us directly back to pardons. If Trump pardons January 6 defendants, it will be a political message to his base. Biden’s clemency grants are about doing mercy. Presidents have a broad pardon power. But using it to reward an attack on democracy and to develop future loyalty is not what the Founding Fathers intended. No matter how much immunity the Supreme Court gives a president who abuses his official power, it still doesn’t make it right.

We’re in this together,

Joyce