Two-Tiered Justice: Disparities in Biden and Trump Pardons

(RealClearPolitics)—That same day, Trump pardoned 1,500 people who were convicted or facing trial for the Jan. 6 riot.

The media’s coverage of these pardons has been dramatically different. Take the New York Times, which describes Biden’s preemptive pardons as a way to “guard” from a “promised campaign of ‘retribution’ by his incoming successor, Donald J. Trump.”

But after the 2020 election, the Times accused President Trump of using his power to “apply his own standard of justice for his allies.” That included Paul Manafort, his 2016 campaign chairman, and Roger J. Stone Jr., his longtime informal adviser and friend. Another beneficiary was a family member, Charles Kushner, the father of his son-in-law, Jared Kushner.

The New York Times quoted this week the older brother of Capitol Police officer Brian D. Sicknick, who died naturally from a stroke the day after Jan. 6. “The message to me is that the United States is no longer a nation under the rule of law and anything goes,” Craig Sicknick was quoted as saying.

News coverage on ABC, CBS, and NBC spent 46 minutes and 32 seconds covering Trump’s Jan. 6 pardons but only three minutes and 32 seconds on Biden pardoning his family.

Overall, Biden has pardoned and commuted sentences for a record 4,245 criminals, including 37 murderers on death row. Some of these individuals are mass murderers, child rapists, and torturers who then murdered their victims, and many have never expressed remorse.

While the pardons by both Biden and Trump are controversial, there are big differences between them.

The cases against the Jan. 6 defendants overwhelmingly involved legal system abuses. A politicized Department of Justice brought charges before juries in the District of Columbia that were heavily biased against Republicans and a circuit court that Democrats heavily control. The jury pool was from a district where Biden had received over 92% of the vote in 2020. Prosecutors with infinite budgets prosecuted ordinary people who didn’t have the resources to defend themselves.

The Biden Department of Justice clearly overcharged these defendants. For example, when a case finally got to the U.S. Supreme Court (Fisher v. United States), the court sternly reprimanded the Biden Department of Justice, saying a statute dealing with corporate fraud clearly shouldn’t have been used against more than several hundred defendants. Finally, the Department of Justice never gave defense lawyers 44,000 hours of video evidence. It isn’t a prosecutor’s job to determine what you think might be helpful to defense lawyers.

Trump’s pardons of those who engaged in violence during the riot, particularly those who had hurt police, generated the most controversy. But even here, there was a two-tiered system of justice.

While approximately 140 officers were assaulted in the Jan. 6 riot (it isn’t clear how many were injured), the June 2020 Lafayette Square riot and attack on the White House, by contrast, injured at least 150 law enforcement officers. Despite constant claims to the contrary in the Jan. 6 riot, no officers were killed in either riot. But while the J6 defendants spent significant time in prison, none of the Lafayette Square rioters were prosecuted, let alone sentenced.

While the Jan. 6 riot was viewed as an insurrection against our government, people scaled the White House fence during the Lafayette Square riot, and the Secret Service felt the threat was sufficient to move Trump to a secure location.

Unlike Trump, Biden pardoned family members. After the 2020 election, Biden was critical of the idea that Trump might give preemptive pardons to family members and others. He criticized Trump for possibly doing what he ended up doing himself. The pardons of Biden’s family members entailed possible crimes of corruption and money laundering involving tens of millions of dollars.

Who was more transparent with the American people? Multiple times last year, Biden and his administration promised that Biden wouldn’t pardon his son. After the 2020 election, Biden promised that he would never offer preemptive pardons, such as what he ended up giving his family members. Indeed, he condemned the very idea. By contrast, Trump consistently campaigned on pardoning Jan. 6 rioters.

Biden’s pardons of family members were preemptive and covered crimes dating back more than a decade. The Jan. 6 rioters have met a very different fate, having already faced years of punishment.

Thirty-four rioters were convicted of violence, including overrunning a police barricade. The average person was arrested 43 months ago and given a sentence of 107 months. Few were allowed to make bail. One person, Daniel Ball, was still awaiting trial after sitting in custody for 21 months when he was pardoned.

Ten rioters were convicted of assaulting police officers (Julian Khater, Peter Schwartz, Christopher Quaglin, James Tate Grant, Michael Bradley, Robert Scott Palmer, Ryan Samsel, Steven Chase Randolph, Thomas Harlen Smith, and Tyler Bradley Dykes). They faced an average sentence of 90 months (7.5 years) and have been incarcerated for an average of 40 months since their arrests.

Some of the most severe penalties were reserved for two former police officers (Thomas Robertson and Thomas Webster), who fought their way through the police barricades. They were sentenced to 72 and 120 months and were both held for a total of 48 months.

Many of those sentenced to prison were let into the Capitol by police and did not engage in violence, but they still suffered long prison terms. Jacob Chansley, known as the “QAnon Shaman,” was actually brought by police to the Senate floor and appeared to peacefully talk to officers, but he was still sentenced to 41 months in prison.

Prison is only a part of the penalties that the rioters faced. Many were bankrupted by legal costs – something Trump’s pardon will never be able to restore.

The family members and others that Biden preemptively pardoned will never face any criminal penalties. By contrast, the Jan. 6 rioters have already served significant sentences.

John R. Lott Jr. is a contributor to RealClearInvestigations, focusing on voting and gun rights. His articles have appeared in publications such as the Wall Street Journal, New York Times, Los Angeles Times, New York Post, USA Today, and Chicago Tribune. Lott is an economist who has held research and/or teaching positions at the University of Chicago, Yale University, Stanford, UCLA, Wharton, and Rice.