Though the majority of those charged are facing misdemeanor charges with sentences that are likely to run their course before Trump could potentially reclaim the Oval Office, hundreds of those facing conspiracy, obstruction and assault charges could receive sentences that land them in prison for years.
Trump’s hint that he may pardon people his supporters claim have been treated “unfairly” could become a calculus in their decisions to accept plea deals or enter into negotiations with prosecutors. Some of those facing the most serious charges grumbled about Trump’s inaction in his final days in office — thoughts captured in private messages obtained by the Justice Department — even as he pardoned dozens of other political allies.
“We are now and always have been on our own. So glad he was able to pardon a bunch of degenerates as his last move and shit on us on the way out,” Proud Boys leader Ethan Nordean said in one message prosecutors included in a May 2021 court filing. “Fuck you trump you left us on [t]he battle field bloody and alone.”
Nordean has been held in jail for nearly a year and is scheduled to go to trial in May on conspiracy and obstruction charges, along with at least three other Proud Boys leaders.
It’s unclear if Trump’s suggestion also included those who have been targeted by the Jan. 6 select committee and have since asserted their Fifth Amendment rights against self-incrimination — including figures like attorney John Eastman, who helped Trump devise a plan to subvert the election and pressure then-Vice President Mike Pence to carry it out. It could also include figures like Steve Bannon, who has been charged with criminal contempt of Congress for defying a subpoena from the select panel, and former chief of staff Mark Meadows, who has been referred for prosecution by the House for refusing a deposition.
But Trump’s remarks about fair treatment appear to align with supporters who have decried the prosecution of those who stormed and breached the Capitol on Jan. 6.
Of the defendants sentenced so far, only three received a jail term that would extend past Biden’s first term: Robert Palmer, who assaulted police officers in the Capitol’s lower west terrace tunnel; Scott Fairlamb, who hit an officer in the head outside the Capitol; and Jacob Chansley, who wielded a spear and egged on early waves of rioters as he charged into the Senate chamber and took the dais where Pence had sat just minutes earlier. Palmer was sentenced last month to 63 months in prison, while Fairlamb and Chansley each received a 41-month sentence in November.
Dozens of others facing assault charges are still awaiting trial or plea agreements that could result in sentences far beyond the next inauguration. They include the 11 Oath Keepers charged with seditious conspiracy for allegedly preparing a violent attempt to prevent the transfer of power from Trump to Biden. They also include members of the Proud Boys leadership, like Nordean.
Authorities also continue to make new Jan. 6-related arrests on a a nearly daily basis, estimating that between 2,000 and 2,500 people breached the Capitol that day — meaning that nearly two-thirds of potential cases have not even begun. Prosecutors estimate that about 1,000 police assaults occurred at the Capitol on Jan. 6.
Trump’s comments Saturday appeared to align with complaints by allies who have claimed that Jan. 6 defendants in pretrial detention are being treated more harshly than others held in the D.C. jail. Though the broader D.C. facility was recently ripped by U.S. Marshals Service inspectors for squalid conditions, the assessment found that the wing housing Jan. 6 detainees had fared better in the review. In addition, Jan. 6 defendants have cited policies restricting access to various services for inmates unvaccinated against Covid as evidence of mistreatment — a charge jail officials reject and say is applied uniformly against all held in the facility.
Many of the cases for those facing lengthier jail terms are set to go to trial in the spring but have seen the dates slip repeatedly amid ongoing Covid restrictions in federal courthouses as well as challenges prosecutors have faced building a system to share massive troves of evidence with defendants and their attorneys.