WILLIAM SHIPLEY: The Constitutional reason why Trump’s sweeping Jan. 6 pardons were justified

In the 1986 comedy-thriller “Legal Eagles,” there is a scene involving opening statements in a high-profile murder case with Robert Redford playing a former prosecutor turned defense attorney. After the prosecutor’s opening statement, Redford employs a made-for-the-movies” tactic of telling jurors that, after listening to the prosecutor, even he was convinced his client was guilty.   

“Look, let’s save ourselves a lot of time. Let’s be honest. There are better things we could be doing. Who thinks Chelsea Deardon’s guilty?” Redford’s character, Tom Logan, asks jurors while even raising his own hand.

TRUMP PARDONS NEARLY ALL JAN. 6 DEFENDANTS ON INAUGURATION DAY

Some jurors raise their hands while others seem unsure what to do. One then says to Logan, “Shouldn’t we have a trial first?” To which Logan responds, “Oh yeah, of course. Let’s have a trial first and then we’ll convict her.” 

That scene came back to me many times as I represented dozens of people – somewhere close to 90 in the end — charged with crimes related to the events at the U.S. Capitol on January 6, 2021. Now, in the aftermath of President Donald Trump’s broad pardons of all persons who were charged and/or convicted in connection with January 6, a hue and cry is ringing out from his critics over the idea that so many obviously guilty people have escaped the legal consequences of their criminal behavior. 

But the criminal justice system is only partly about the evidence of guilt offered by the prosecution against the defendant.  The criminal justice system is also about the process – “due process” – that is guaranteed under the Constitution before the government can deprive any person of their liberty by jailing them.

The entire country has had access to thousands of hours of video evidence about the events on January 6. But the public is largely uninformed regarding the “process” that was afforded when people were brought back to Washington to stand trial. It is simply assumed by the public – and by the commentators on both the left and right criticizing the pardons — that January 6 defendants received the due process normally provided defendants in federal courts across the country. 

But that is not true, and the deficiencies in the “process” – regardless of the views expressed by the judges in Washington on the subject – are the strongest reasons justifying the broad sweep of Trump’s pardons. If a defendant’s due process rights are not afforded to him or her, then any conviction that might result is suspect. It is no different from the basis for suppressing evidence when a defendant’s Fourth Amendment rights are violated by an unlawful search – the process would violate the Constitution.

Many of the more complex legal questions involve charging decisions, change of venue, use of statutes deemed not applicable to the events of the day, and more. Exploring all of them would require a book. But here is one example of how the Biden Justice Department altered long-standing practices in order to gain leverage over the January 6 defendants in its effort to secure the overly-harsh outcomes they wanted.

CLICK HERE FOR MORE FOX NEWS OPINION

Pursuant to Rule 20 of the Federal Rules of Criminal Procedure, a defendant in a federal case who wishes to plead guilty can ask to have the case sent to the federal district where the defendant lives, if that district is different from the district where the defendant is charged. For example, a January 6 defendant from Dallas who wished to plead guilty has the theoretical option to do so in the Northern District of Texas and be sentenced in that same court for their crime. 

The only precondition for doing so under Rule 20 is that the U.S. Attorneys in each district –where the charge is brought and where the defendant resides – both agree to have the case resolved in this manner. In my 21 years as a federal prosecutor, cases handled as “Rule 20 Transfers” were common and the practice was routine.

CLICK HERE TO GET THE FOX NEWS APP

But the Biden DOJ refused all such requests. Hundreds of January 6 defendants did plead guilty, but the Biden DOJ insisted that every case had to be sentenced by one of the 19 federal judges in the District of Columbia. If you have never been to the E. Barrett Prettyman United States Courthouse, it sits at the same intersection of Pennsylvania and Third Street as does the northwest corner of the Capitol building. Some of the judges in Washington could see the January 6 protest and riot from their office windows. Those were the judges the Biden Justice Department insisted have the final say on every sentence imposed on a January 6 defendant, and that was intentional.

The E. Barrett Prettyman US Courthouse in Washington, DC sits within sight of the Capitol. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images) (MANDEL NGAN/AFP via Getty Images)

I represented January 6 defendants for 42 months. My services included 12 trials, the last of which ended on Jan. 13, just one week before President Trump’s inauguration. I also represented a defendant at a sentencing on January 17, the last workday prior to Trump taking office. Throughout that period, I saw many other ways in which their due process rights were routinely and systematically violated, and I hope to share more examples in this space in the future. Americans who believe in due process will be shocked, and I believe they will understand that President Trump’s decision was justified.