WASHINGTON — A Justice Department prosecutor struggled in court on Wednesday to articulate the administration's view of the full intention of President Donald Trump's mass pardon of Jan. 6 rioters, as the government argued that Trump's pardon should apply to separate criminal conduct committed by Capitol rioter Dan Wilson in Kentucky in 2023.
U.S. District Judge Dabney L. Friedrich, a Trump appointee, questioned Justice Department attorney Jennifer Leigh Blackwell about the government's shifting position on the application of Trump’s Jan. 6 pardon.
Wilson pleaded guilty in May 2024 to three separate crimes: one charge of conspiracy to impede or injure an officer, for his conduct at the Capitol on Jan. 6, 2021; and two gun charges related to conduct in Kentucky in 2023, when his home was searched as part of the investigation into the Capitol riot.
Trump pardoned Wilson, along with more than 1,500 other Jan. 6 defendants, for the crimes they committed or were accused of during the Capitol riot. Wilson was then freed from prison — but the government told the court early this month that Wilson was "erroneously released," and Wilson had been ordered to return to Bureau of Prisons custody to finish serving out his sentence on the gun charges. The "plain language" of Trump's pardon, the government told the court, makes clear it "does not extend to those convictions."
Then the government changed its mind.
In a filing Tuesday, Blackwell, an assistant U.S. attorney, wrote that the government had "received further clarity on the intent of the Presidential Pardon." Friedrich called an emergency hearing on Wednesday and expressed frustration with the government’s changing position on the meaning of the pardon, which says that Trump was granting "a full, complete and unconditional pardon to all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021."
Friedrich spent much of Wednesday's hearing questioning Blackwell, seeking clarity on what the government was arguing and workshopping theoretical language that would more clearly articulate the government’s position.
FOR SUBSCRIBERSA harrowing ordeal aboard an Israel-bound plane
FOR SUBSCRIBERSThe debate over AI’s future rages on both coasts
But overall, the judge appeared skeptical of the Justice Department's newly developed argument that the Jan. 6 pardon applied to the gun charges, saying Blackwell was in a “very difficult position” but that she appreciated Blackwell's “attempts to answer the court’s questions.”
Pardons have to “have a fixed meaning,” on the day they are issued, Friedrich said, and there has to be a “clear definition of the pardon” that doesn’t evolve or change.
“The intent cannot evolve over time as new cases are brought to his attention,” Friedrich said, referring to Trump. Friedrich said the president can't change the intent that he had on Jan. 20 but noted Trump could simply explicitly pardon Wilson for the gun charges if he wished to do so.
FOR SUBSCRIBERSA harrowing ordeal aboard an Israel-bound plane
FOR SUBSCRIBERSThe debate over AI’s future rages on both coasts
“I don’t think you can just have an open pardon,” Friedrich said. “It can’t be ‘we know it when we see it.’”
Friedrich asked Blackwell about why a child sex abuse case against another Jan. 6 defendant wasn’t covered by the pardon, but Wilson’s gun case was.
Jan. 6 defendant David Daniel, who was charged with child sex abuse-related offenses after a Jan. 6-related search of his home, was different from Wilson's case, Blackwell argued, because there was some prior knowledge of an allegation of sexual assault of a minor. The prosecutor said authorities already had some evidence of exploitation of a child before a Jan. 6-related search turned up child sexual abuse material.
“That’s an interesting line to draw,” Friedrich said.
The affidavit in the Daniel case notes that in the course of the Capitol riot investigation, investigators were “made aware that [the Mint Hill Police Department] had an open investigation regarding the allegation of sexual assault of a minor” who alleged that Daniel “sexually assaulted her on multiple occasions” and had “taken pictures of her while she was naked.” Daniel has pleaded not guilty in the case.
But Friedrich pointed out that the government also knew Jeremy Brown — a Jan. 6 defendant separately convicted of having unregistered weapons and classified material in his home — had classified materials in his home before the search, and yet the Justice Department is arguing to another federal judge in Florida that Trump’s Jan. 6 pardon covers those separate crimes as well.
Blackwell explicitly stated again that the Justice Department does not believe Trump's pardon applies to a murder plot that Jan. 6 defendant Edward Kelley concocted after his arrest on Capitol attack charges. Kelley plotted to murder the FBI special agents who investigated him and was convicted by a federal jury in Tennessee.
Friedrich said she would take the matter under advisement. She also suggested that if she determined that the plain language of the pardon didn’t cover a 2023 gun offense, she would still issue a stay that would allow Wilson to avoid having to report to prison immediately, since Wilson would appeal the ruling.
