Pardons and Penumbras

It’s one thing for Trump to have pardoned every defendant, no matter what Capital police officer they beat while enjoying their “tour” of the Congress or collection of souvenirs or depositing bodily excretions on desks, of the January 6th insurrection. After all, they did it for Trump, and how better to show his love of thuggery in his honor than to exercise his presidential prerogative with a big, beautiful pardon for his day of love?

But in the process, other crimes came to light having nothing to do with their being very fine people, and they were just good, old fashioned crimes of the sort that would have been used to castigate them had they been anything other than Trump’s love children. And on February 6th, the government argued that the pardons were granted for the insurrection, but not the ancillary crimes committed.

The government has reviewed the Certificate of Pardon, which was provided to the defendant by the Office of the Pardon Attorney on or about January 29, 2025. The Certificate makes clear that the pardon only applies to “convictions for offenses related to events that occurred at or near the United States Capitol on January 6, 2021.” The convictions for 18 U.S.C. § 922(g) & 924(a)(2) (possession of a firearm by a prohibited person) and 18 U.S.C. § 5841, 5861(d), and 5871 (possession of an unregistered firearm) in 24-CR-238 did not occur at the United States Capitol on January 6, 2021, and thus, by the plain language of the certificate, the pardon does not extend to these convictions.

But that was then, and this is now.

When FBI agents searched Jan. 6 defendant Jeremy Brown’s home in 2021, they found a trove of illegal weapons — grenades, a modified AR-15-style rifle, a sawed-off shotgun — and a classified report he kept after departing the Army.

Brown, a retired Green Beret from Tampa, is serving a seven-year sentence for those crimes. But on Tuesday, the Justice Department said he should be immediately released based on President Donald Trump’s mass pardons for people convicted of storming the Capitol on Jan. 6.

It’s the latest effort by federal prosecutors to read Trump’s clemency order so broadly that it sweeps in crimes that had no connection to the Jan. 6 attack — except that they were discovered in FBI searches stemming from the Capitol riot probe.

What does possessing grenades or classified material have to do with January 6? On the one hand, nothing. On the the other hand, if the perp is a pal of the prez, then why not?

In its filing dated February 6, 2025, the government indicated that the language of the pardon did not cover the firearm convictions, 18 U.S.C. §§ 922(g) & 924(a)(2) (possession of a firearm by a prohibited person) and 18 U.S.C. §§ 5841, 5861(d), and 5871 (possession of an unregistered firearm). (ECF No. 103). The basis of these convictions were firearms recovered pursuant to a search warrant executed at the defendant’s residence in Kentucky, based on his conduct on January 6, 2021, at the United States Capitol. In the intervening period since the government filed its response, the government has received further clarity on the intent of the Presidential Pardon. Under these circumstances, the Presidential Pardon includes a pardon for the firearm convictions to which the defendant pled, similar to other defendants in which the government has made comparable motions.

By “further clarity,” the government means that the word from on high at the Department of Justice was cut them loose, and so they did.

In addition, the government recently concurred in the dismissal of an appeal in the Fourth Circuit, in the case of a defendant who was convicted of offenses related to January 6, 2021, and possession of contraband which was located pursuant to a search warrant executed at his residence for evidence related to his January 6, 2021 conduct. In that matter, the U.S. Attorney for the District of Maryland noted that “[a]fter consulting with the Department of Justice’s leadership, the United States has concluded that the President pardoned Mr. Costianes of the offenses in the indictment. This determination by the Executive is ‘conclusive and persuasive.’

That was the case of Elias Costianes of Maryland, who pleaded guilty to possession of weapons by a drug user. What does the coke he sold and possessed have to do with his January 6th lovefest for Trump? Enough, apparently to buy him a walk as far as the government was concerned, even after he copped a plea.

There is no information available to explain the thought process behind the decision to apply the pardon to other crimes bearing no connection to January 6 activities. To the extent there is any relationship, the crimes were discovered in the process of investigating and arresting J6 participants, although that tenuous connection was merely fortuitous. After all, nobody forced J6 tourists to keep grenades or kiddie porn around the house as well.

But as long as one is indulging in fantasy, the emanation and penumbra of being a “good person” for having a Trump flag on the pole he used to beat cops is reason enough to forgive all trespasses. The only remaining question is now that they are on the radar of the FBI for their drugs, porn and guns, will they be immune in perpetuity since they might never have caught the government’s eye had they not decided to “fight like hell”?

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