DOJ Erases Jan 6th Cases & Pirro's Job in Jeopardy

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1:34Jeff Mason:This is Bloomberg Law with June Grosso from Bloomberg Radio. More than three years ago, the Justice Department was touting the guilty verdicts against members of the right-wing Oath Keepers for a plot to obstruct Congress's certification of the 2020 presidential election. The rare seditious conspiracy verdicts were the crowning achievement of an expansive prosecution effort that followed the violent riots at the Capitol on January 6th of 2021. But when Donald Trump took office for the second time, he directed his sweeping clemency power toward the more than 1 ,500 people charged in connection with the January 6th attack.

2:20I was very proud to pardon the J-6 hostage. And when Trump bragged about the pardons at a rally about a week later, sitting behind him in the VIP section was Stuart Rhodes, the leader of the Oath Keepers, who had been released from prison just days earlier after Trump commuted his 18-year sentence for seditious conspiracy. And now the Trump administration is trying to rewrite the history of the January 6th attack by dismissing the indictments against the Oath Keepers. Federal Judge Amit Mehta, who had presided over the Oath Keepers case and sentenced the defendants, criticized the Justice Department, writing that the government, quote, asked to absolve these defendants of crimes against the United States itself.

3:13But he wrote that he had no choice but to grant the administration's motion to dismiss. Joining me is Bloomberg legal reporter Zoe. Zoe, tell us about the charges against the Oath Keepers and their significance. So this was one of the highest profile cases to come out of the January 6th prosecution effort, where members of the Oath Keepers, which was a right-wing extremist group, were charged with conspiring well in advance of January 6th, not only to come to Washington to do whatever it took to stop Congress from certifying the election results, but also to bring guns and to stockpile them at a hotel in Virginia.

3:55And the theory of that prosecution was, you know, these were not people going to protest and accidentally got swept up, that they had been planning potentially to use force and violence to stop Congress from certifying the election. This was arguably the highest profile, if not one of the most high profile cases. It involved charges and ultimately convictions for a seditious conspiracy, which is a very rarely used offense. It's use of force against the U.S. government. This is more than just the garden variety, so to speak, conspiracy to obstruct Congress charge that many people faced after January 6th.

4:34So these cases were really, you know, top of mind for the Justice Department and for the public's understanding of, you know, the most serious crimes that were being charged in connection with what had happened on January 6th. And how many people were actually convicted in this particular case? There were several dozen, I believe, prosecutions related in some way to the Oath Keepers. But what it came down to here was eight defendants who were convicted, including some of Sedisha's conspiracy, but who weren't part of the Trump pardon. You might remember on January 20th, he takes office. He issues a sweeping executive clemency action that covers almost everybody, but not everybody, convicted or charged in the January 6th cases.

5:21And there were 14 people who didn't get pardons, but their sentences were commuted. And that included eight of the remaining defendants whose cases were at issue here related to the Oath Keepers case. So, you know, their cases that had still been out there, they were appealing their convictions. Ultimately, the Justice Department came back and said to the courts that they wished to vacate those convictions, even though Trump hadn't pardoned them. So those were struck. And then what was left were the indictments. They were still, you know, on the record, criminally charged with these offenses. And that's what was left for the judge to resolve here.

5:59Why didn't Trump pardon them as well? I don't think that he's ever publicly discussed this at length. But I think the inference was that the 14 people were members of the Oath Keepers and the Proud Boys. And these were the most serious, seditious conspiracy cases that the Justice Department had brought. And, you know, leading up to Trump returning to office, there had been rumblings coming from Republicans and conservatives, not just Democrats and liberals, blocking at the idea that people who beat up cops, committed violence, or who were convicted of these most serious offenses against the United States government, that they should perhaps not benefit from executive clemency.

6:42And there was some infighting on the right about whether that would be appropriate and acceptable. And ultimately, the president had a sweeping clemency action that covered many people who were convicted or charged with assaulting police officers. But it seemed like perhaps the seditious conspiracy cases were this outlier. So he commuted the sentences. They were released from prison, but didn't take that final step at the time, at least, to give them a full pardon. Have you heard before of the Justice Department getting convictions, asking to have them vacated and asking to have the indictments dismissed?

7:19So the convictions were already vacated. The cases were up on appeal and the Justice Department asked the appeals court to basically kick them back down with an order to vacate them, finding it was in the public interest. The judge, in the opinion that we wrote about, sort of notes that there wasn't much explanation as to why they wanted to do that and why the D.C. Circuit signed off on that. That being said, there is just a lot of prosecutorial discretion at every level of these cases. So when administrations change, there are always, no matter who's in charge, backtracking of prosecutorial decisions that have been made by past administrations.

7:56That's certainly something we see. So what was left was just that the indictments were still active. You know, in theory, they could vacate these convictions, but say, you know, there were problems with how this prosecution happened, but we're going to try them again. That was still an option or just to leave them intact, as the judge said, you know, to create some record that this had all happened in some official legal capacity. The judge pointed out the prosecutors never admitted to any prosecutorial misconduct or legal error or said that the evidence was not sufficient to sustain the conviction.

8:34So was he trying to say that this is not about the weaponization of the Justice Department as the Trump administration and President Trump keeps claiming? Basically, yes. I think he felt that he needed to highlight what was a series of unusual events and, you know, in his mind, perplexing and surprising arguments that the government ultimately made to do something that he acknowledged they have the authority to do. It's just normally he said it's because they might say, you know, we looked at the evidence again. It was insufficient. We identified deficiencies with what was charged, how the prosecution played out.

9:15You know, those are the normal reasons that you would see the government walk back a case where it's already won a conviction. That didn't happen here. And the judge said what he received from the government was a couple of arguments. One was to protect these defendants from harassment, that as long as the indictments were on the book, the potential for, you know, maybe some future trial, that this was harassing of individuals whose sentences had been commuted and their convictions vacated. The other reason that he really took issue with was this idea that the department said there was so much publicity around these trials and prosecutions that you don't need a record of criminal activity in the courts.

9:56People can just go back and see what happened because there was media coverage. And the judge said, you know, that is not the government stance. The government normally feels that I think he said, you know, actual accountability is what is in the public interest, not media coverage or public attention. And then finally, he also pointed out that to say that this was in line with Trump's, the president's intent didn't quite square with the fact that the president had decided to not pardon these defendants. So he also identified an incongruity in that logic. I think what was really striking about this opinion, June, was that he decided to take the opportunity to make clear that he was quite disappointed and dismayed and upset at the outcome of all of this.

10:42These were cases that really consumed the federal court in Washington for years. After 2001, it was all encompassing. And all the judges spent countless hours reviewing body camera footage from that day, evidence, testimony from police officers who were there. And Judge Mehta and other colleagues on the bench have publicly expressed their consternation at what they see as a rewriting of fact of what happened on January 6, and the culpability of at least many of the people who were charged and convicted for what happened that day. You could see almost the sort of sadness and the solemnity behind this.

11:26Today's epilogue diminishes the gravity of that day, denigrates the work of the prosecutors and law enforcement officers who secured these convictions, and excuses criminal acts that caused a centuries-long pillar of our democracy, the peaceful transfer of presidential power, to buckle. But he said the court cannot write a different ending. He had no choice. He had to accept it. Right. And, you know, his choice was to write what he wrote. And he could have simply said, you know, given the explanation from the government and given the court's lack of authority to supersede these types of decisions, I grant the request.

12:07I think the choice ultimately that he made was to put down these words that I have to think he knew would get attention and get some coverage as a way of closing out perhaps the public record of everything that had happened and maintaining an official record through the legal proceeding of at least his perception of what had happen. And this judge had handled this case from the very beginning. So he had been there from the start and chose to express these thoughts, which one of the defendants already has objected to and asked that he go back and strike a lot of the extra, what they saw as the extra language that was very unfair to their client.

12:49As the defense attorneys noted, you know, as long as these convictions were on appeal, they were never finalized. So there was still this presumption of innocence that individuals have until it's final. And they argued that they would like him to strike at least some of this language from the opinion in light of that. And that was a motion made to Judge Mehta himself? That's right. That came shortly after the opinion was released, a motion to strike, whether he will entertain that, we don't know. But certainly he has put down, and it's now out there for posterity, you know, his final thoughts on how this all unraveled.

13:28It'll be really interesting to see what happens. I mean, if he refuses, is that grounds to appeal? I think that would be a tough, tough appeal. You know, much as the government has a lot of prosecutorial discretion, the judges have certainly a lot of discretion in what they write and their opinions. And barring some legal error, it's tough to see what the appeal would look like there. And now this is less than a month after another judge had to dismiss another January 6th related case against another far right group, the Proud Boys. I mean, they've walked back all of the January 6th prosecution.

14:06Some of the Proud Boys defendants were among those 14 individuals who didn't get pardons from the president, but commutations. So as Judge Maida notes here, you know, there were these last lingering cases that needed to be resolved because there weren't pardons to sort of cleanly wipe that slate clean, that commutations don't remove a conviction from someone's record. And at that point, there's sort of a debate of what's appropriate to keep on the record and how much does something like a commutation absolve someone of the weight of a conviction. Zoe, do you know, have any of the Proud Boys or the Oath Keepers filed claims with the Justice Department for compensation?

14:51We know that several members of the Proud Boys have filed a lawsuit seeking compensation that the Justice Department has opposed so far. So that has not gotten anywhere in terms of success on their part. We don't know. There haven't been lawsuits on behalf of the Oath Keepers. There have been some from other January 6th defendants who were pardoned. We know that several hundred hundreds of January 6th defendants who got pardons have filed administrative claims. It's not clear to me if any of the Oath Keepers have. It seems like it would be unlikely until their cases were fully resolved. So that's certainly a line of reporting that will continue to follow.

15:30But that said, you know, there are a number of pending claims related to January 6 already. And even though the Justice Department had to walk back a plan for this$1.8 billion anti-weaponization fund that was seen as a way to sort of more quickly and cleanly pay out claims to January 6 defendants, there are existing pathways that have always been around for folks to pursue these types of compensation claims. and many of them had filed claims long before the fund was announced. And we expect them to continue to press them long after the fund is purportedly dead. So it's very much a live issue whether and how much money taxpayers will now end up paying out to these individuals.

16:15Is the judgment fund unlimited or is there a limited amount of money in the fund? Our understanding is it's always described as a permanent, indefinite appropriation. So generally, it's understood to be unlimited. I haven't come across a case where the government has said we can only afford to pay you so much because we've tapped out the judgment fund this year. You don't really see that come up. Exactly how much gets put in at any given time, honestly, I don't know. But our understanding is that generally it's considered a sort of infinite pool because of the Justice Department's broad authority to settle claims that are brought against the government, whether they're administrative, which means they don't play out on a public docket or they're brought in court.

17:06How those January 6th claims play out is something that we have to keep track of now. Thanks so much, Zoe. That's Bloomberg Legal Reporter Zoe Tillman.

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19:37And frankly, I think she choked. President Trump was quite forgiving of the contractor, whose botched installation caused widespread damage to the Lincoln Memorial Reflecting Pool, according to the D.C. U.S. attorney, though Trump was not so forgiving of the D.C. U.S. attorney, Jeanine Pirro. I was disappointed with Jeanine Pirro, really disappointed with Jeanine Pirro. She folded like an umbrella. Trump publicly criticized Pirro for dismissing charges against individuals accused of vandalizing the reflecting pool. Pirro met with Trump and other officials, including Interior Secretary Doug Burgum, whose department oversaw the project on Monday.

20:25But today, Trump said he hadn't decided whether to keep her as the top federal prosecutor in Washington. Joining me is Jeff Mason, Bloomberg White House and Washington correspondent. Jeff, start by telling us about the relationship that Jeanine Pirro has had with President Trump, at least up until the last few days.

20:47Jeff Mason:Well, they've been friends for a long time. And he was a big fan of hers when she was on Fox News, which was a job that she had for a long time. And she's been a big defender of President Trump's using that perch. And then he brought her into the administration by making her the top attorney in the District of Columbia, Washington, D.C. And she has used that perch to also really implement a lot of what he was looking for in terms of legal cases here. I remember one of them being – and I don't know that she would have spoken to him about it, but it's an example of Trumpian legal procedures I guess was when she brought the man who had thrown his sub sandwich against a police officer during some kind of a protest and tried to win that case and that didn't work out.

21:41Jeff Mason:So that's just one example that comes to mind. But to your question, they've been longtime allies in any case. And so it was pretty unusual, A, to see her make a decision that she has to have known was going to upset him. And B, for him to be as publicly critical of her and that decision as he was, although I would add an addendum to that last piece, which is we know that President Trump turned on his own. And he did that a lot during the first term. He has done it less often during the second term, but he has done it. He fired Pam Bondi. He fired Kristi Noem, the former attorney general and the former secretary of Homeland Security.

22:25Jeff Mason:So he absolutely could fire Ms. Pirro, and he might. In fact, he said, I think last night when he was talking to reporters that he hadn't made his decision yet. But he did not do it after their meeting at the White House. And that seems to be at least in part because she made her case for why she had to withdraw the case that he wanted, which was to pursue these people who they accused of being vandals and of leading them to the breakdown of the lining on the reflecting pool. So I saw a video of her going into the White House. with what prosecutors normally take to court, which is, you know, a wheelie with a box of documents.

23:12And I mean, do you know what happened in that meeting?

23:15Jeff Mason:Well, the New York Times had a fantastic story about what happened in that meeting. So what I know is from reading their terrific reporting, and that is that she brought in that case that you were referring to with a bunch of documents and proof, essentially, that it was according to her a mess up by the contractors and therefore also the department of interior and according to the time she accused um secretary of interior doug burgum who was present for this meeting of lying and um and honestly if she did that in a way that's also suggesting that the president lied although perhaps she's giving him cover by saying um He was listening to Burgum.

24:03Jeff Mason:I'm not sure. I'm speculating a little bit there. But in any case, she went in to press her case and to make her case for the fact that she decided not to continue with this case. And she did that with the evidence, apparently, that was in that case that you were referring to. I mean, most lawyers who looked at those charges when the indictment came out, you could see that it was a very hard case to make out, even to make out$1 ,000 worth of damage. It just didn't seem like there was anything to support that in any event. But what makes it different is she didn't just drop the charges. She contradicted what Trump has been saying over and over and over again, that vandals caused the damage.

24:48Jeff Mason:That's right. And that contradiction part is what is unusual, certainly to have someone who is close to him and a big supporter to not only contradict his Department of Interior, but to contradict him directly because he was clearly making that case very publicly. And doing so in the face of certainly a lot of questions from anyone who kind of looked at it and thought, you know, how is it possible that this one Olympian and these three other people could have made the damage with a box cutter that in this massive and long reflecting pool? It just didn't pass the logic test for a lot of people.

25:30Jeff Mason:And yet that was not the criteria that President Trump was using because remember, he made promises about this and he made promises about it going in that his contractors or the people that he chose were going to be able to do this renovation of the reflecting pool for much cheaper than any other administration had ever done or ever tried and much faster and much better. All of the things, all of the superlatives that are part of President Trump's lexicon, he applied to this project. And then it didn't happen. Not only did it not happen, but it failed spectacularly. So he was looking for, as he often does when something goes wrong, a scapegoat and found a convenient one in these people who had gone by and touched or taken out some of these floating pieces.