Trump's Pardons: How Judges Effectuate the Expressive Function of the Law

By Judge Nancy Gertner (Retired) and Joel Cohen

Judges—especially in cases involving the Trump administration—should do more than just decide cases and resolve disputes. He or she should say more than “you win,” “you lose,” “allowed,” or “denied” without explanation. That might be efficient, much like a robot, but it is wrong.

The explanation, if the judge chooses to employ it, is key. It communicates a message to the public, enables that message to be understood by society, and contributes to the decision’s legitimacy and that of the Court. Professor Cass Sunstein referred to this as the “expressive function” of the law.

When federal prosecutors asked the judges in the District of Columbia to dismiss the cases against the January 6 defendants because President Trump had pardoned them, all they had to say was “allowed,” then rubber stamp the executive who had plenary power to pardon. Even though the courts had no discretion to deny dismissal in the face of the presidential pardons—as presidential clemency power is effectively unreviewable—an independent judiciary can still speak, if it chooses to.

To say nothing is to ratify the lie of President Trump’s pardon message. Trump, in his executive order late Monday, said he was ending “a grave national injustice that has been perpetrated upon the American people over the last four years,” in order to begin a “process of national reconciliation.”

But Judges Howell, Chutkan, Lamberth, Nichols, and Kollar-Kotelly refused to do so. U.S. District Judge Beryl Howell, appointed by President Obama, wrote in court filings that she would not dismiss the cases of Proud Boys Nicholas Ochs and Nicholas DeCarlo “with prejudice” — which would prevent charges to be filed against the men in the future. Agreeing to do, she said, would “let stand the revisionist myth” relayed in Trump’s proclamation that nearly all of the Jan. 6 defendants had been unfairly treated by the courts. She chose to explain that:

“The prosecutions in this case and others charging defendants for their criminal conduct at the U.S. Capitol on January 6, 2021, present no injustice, but instead reflect the diligent work of conscientious public servants, including prosecutors and law enforcement officials, and dedicated defense attorneys, to defend our democracy and rights and preserve our long tradition of peaceful transfers of power — which, until January 6, 2021, served as a model to the world — all while affording those charged every protection guaranteed by our Constitution and the criminal justice system.”

She added, with a pointed message of special poignancy: “No ‘process of national reconciliation’ can begin when poor losers, whose preferred candidate loses an election, are glorified for disrupting a constitutionally mandated proceeding in Congress and doing so with impunity.” There was, in fact, “[n]o ‘national injustice’ that occurred here, just as no outcome-determinative election fraud occurred in the 2020 presidential election.”

Judge Colleen Kollar-Kotelly, appointed by Ronald Reagan and former Presiding Judge of the United States Foreign Intelligence Surveillance Court, made it clear that she was writing “for posterity,” to record the truth of what really happened.

“Dismissal of charges, pardons after convictions, and commutations of sentences will not change the truth of what happened on January 6, 2021,” Kollar-Kotelly wrote, noting the events have been preserved through “thousands of contemporaneous videos, transcripts of trials, jury verdicts, and judicial opinions analyzing and recounting the evidence through a neutral lens.” These records, she noted, “are immutable and represent the truth, no matter how the events of January 6 are described by those charged or their allies.” In a particularly moving passage, she added, “Standing with bear spray streaming down their faces, those officers carried out their duty to protect.”

Likewise, Judge Tanya Chutkan, appointed by President Obama, in her order that formally ended the case against John Banuelos, who was charged with firing a pistol into the air on the grounds of the Capitol, made the harm affected by this defendant even more explicit: “The dismissal of this case cannot undo the ‘rampage that left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage.” Nor could dismissal “diminish the heroism of law enforcement officers who ‘struggled, facing serious injury and even death, to control the mob that overwhelmed them.’” Finally, the pardon, no matter what the president said, cannot “whitewash the blood, feces, and terror that the mob left in its wake. And it cannot repair the jagged breach in America’s sacred tradition of peacefully transitioning power.”

Even before Trump was inaugurated, Judge Royce C. Lamberth, appointed by President Reagan and also a former presiding judge of the FISA court, sounded the same themes. Any wide-ranging mercy for the January 6 rioters would be a mistake. He wrote that it was critical to “remind ourselves what really happened” on January 6: how an angry mob of Trump supporters invaded the Capitol, ignored directives to turn back, engaged in a “pitched battle” with the police, “stampeding through and over the officers.” Even Judge Carl J. Nichols, a former law clerk to Justice Clarence Thomas appointed by President Trump in his first term, made it clear that “blanket pardons for all January 6 defendants or anything close would be beyond frustrating and disappointing.”

It didn’t matter who the appointing president was, how long the judge had served, or how junior or senior they were. These judges would not silently rubber stamp this outrageous—even if lawful—decision of the new president. And they took pains to say so, loud and clear. An independent judiciary and impartial juries created a record that cannot be erased by the stroke of this president’s Sharpie pen. It is a lesson for us all.

---

Nancy Gertner is a former U.S. District Court Judge of the District of Massachusetts, now a senior lecturer at Harvard Law School, author, TV commentator and opinion writer.

Joel Cohen, a former prosecutor, practices white-collar criminal defense law at Petrillo Klein and Boxer in New York, and teaches at both Fordham and Cardozo Law Schools.