DeSantis’s January 6 Pardons Comments Are Being Wildly Misinterpreted

By Noah Rothman

Friday, May 26, 2023

 

The Washington Post editorial board castigated Ron DeSantis on Thursday night for comments he made during a radio interview earlier that day in which the governor appeared open to the prospect of pardoning some of the convicted January 6 rioters as president.

 

The board savaged DeSantis for what it saw as little more than an “effort to indulge the MAGA fantasy that the insurrectionists’ actions could be justified,” and suggested his comments were irresponsible because they might “discourage plea deals and encourage defendants to drag out proceedings in the hope that they might get clemency in 20 months.” Its latter objection is valid and worth contemplating, but procedural concerns should not be subordinated to the principle the governor articulated in that interview. That principle is, in fact, far less objectionable than the Post’s reflexive hostility suggests.

 

During his appearance on the Clay Travis & Buck Sexton Show, DeSantis promised to “look at all these cases [where] people are victims of weaponization or political targeting and we will be aggressive in issuing pardons.” He continued: “Some of these cases, some people may have a technical violation of the law. But if there are three other people who did the same thing, but just in a context like Black Lives Matter, and they don’t get prosecuted at all, that is uneven application of justice.”

 

The hypothetical the governor is contemplating — which, if read closely, is vague enough that it hardly constitutes a pledge — stipulates that the FBI and the Justice Department misused their powers and led judges to render unjust verdicts. That scenario justifies the application of the president’s absolute pardon power. Moreover, it’s a scenario that isn’t hard to imagine.

 

The Durham Probe demonstrated rather irrefutably that, among other offenses, FBI agents deliberately misled Foreign Intelligence Security Act (FISA) court judges to pursue politically charged investigations with dubious predicates — a criminal offense for which no one can apparently be disciplined. This month, unsealed court documents revealed that the FBI misused a FISA database to conduct warrantless surveillance of both January 6 suspects and anti-police violence demonstrators following the murder of George Floyd. Indeed, the Justice Department concluded as much. So, the governor’s facts are not at issue, just his judgment.

 

If the inquiry the governor imagines (which, again, was suppositional to the point of being academic) sides with the Justice Department in determining that the FBI presented evidence before the court that it gathered improperly, the president’s pardon power is one valid remedy. It is hard to see how DeSantis’s procedurally methodological remarks would convince rational Americans to “engage in violence if they don’t like the outcome of next year’s elections,” as the Post suggests. As for the irrational, they will find inspiration where they can.

 

DeSantis’s comments do not even approach the level of irresponsibility Donald Trump achieved in his CNN town hall, in which the former president contemplated something like a blanket pardon for a “large portion” of the 485 people so far convicted of crimes related to the January 6 riots. Indeed, it’s hard to avoid the conclusion that the Post is evaluating DeSantis’s remarks in light of Trump’s comments about the January 6 rioters. That’s perhaps understandable given the degree to which DeSantis’s campaign seems consumed with the effort to triangulate Trump’s issues and steal away his supporters. But DeSantis himself established clever distance from Trump on the issue of January 6 in the same radio interview.

 

When asked directly if he would pardon Donald Trump specifically, DeSantis responded with a loaded non-answer: “Any example of disfavored treatment based on politics or weaponization would be included in that review no matter how small or how big.”

 

Now, DeSantis isn’t saying outright that the criminal indictments Trump is facing now and will likely face in the future, one of which is likely related to his role in that day’s events, could stick. He’s not saying directly that Trump faces the prospect of prohibitive legal jeopardy and that the former president will never again find himself in the constitutional role that would allow him to pardon himself. But he sure is implying it.

 

Republican voters do not respond well to Republican lawmakers who make the case against Donald Trump’s legal misconduct in plain terms. I wish they did, but they don’t. And since those Republican voters hold the key to Trump’s political future, convincing them of the former president’s legal and political handicaps must be a Socratic exercise. At least at this stage of the campaign, slyly reminding voters that Donald Trump is festooned with liabilities that will likely prove prohibitive obstacles along his path back to power is the most effective route to blocking his renomination to the presidency. If the Post’s editorial board shares that goal, displays of self-righteousness, however warranted, won’t achieve it.

 

I take a backseat to no one in my tragic sincerity when it comes to January 6. It was one of the darkest days in American history and a blight on the lawmakers who thoughtlessly entertained the baseless predicate for the riots: the utterly fraudulent notion that the 2020 presidential election results were in any way illegitimate. For his complicity in the day’s events, I believe Donald Trump should have been impeached, removed from office, and barred from holding future office by Congress. Presently, there is little evidence to suggest that any of the offenders convicted for participating in that day’s lawlessness should have their convictions overturned. I would love it if the Republican Party was not hostage to shadows on the cave wall that have led them to avoid stating the case against Donald Trump that plainly. But doing so has cost Republicans of good conscience the power to influence the GOP and shape its evolution.

 

Yes, DeSantis is treading lightly across a minefield. Yes, the Post is correct to wonder how the governor’s comments might impede the ongoing work of prosecutors. But the principle DeSantis vocalized is more anodyne than the editorial board suggests, and the politics of his comments are, in fact, his most direct assault on Donald Trump’s viability as a candidate to date.

 

When it comes to January 6, anti-Trump forces in media have the luxury of moral clarity. Anti-Trump Republicans with their hat in the ring do not. If, however, the Post cannot see the distinction between Trump’s full-throated embrace of the January 6 rioters and DeSantis’s qualified articulation of a doctrine around pardons in relation to potential misconduct by law enforcement, that’s the Post’s problem, not the Florida governor’s.