The ordeal may not be over for some of the more than 1,500 Jan. 6 criminal defendants granted clemency by President Donald Trump, as certain prosecutors are currently investigating whether some of the individuals — particularly those alleged to have committed violent crimes — could be charged at the state or local level.
That loophole was floated by Philadelphia District Attorney Larry Krasner, who told CNN that his office was looking into the possibility of bringing state election- or conspiracy-related charges against some of the Pennsylvania residents who were pardoned or saw their prison sentences commuted during the first week of the Trump presidency.
Krasner’s office could theoretically take action against the more than 100 Pennsylvania residents who received full pardons or sentence commutations, including a Philadelphia-based Proud Boys leader who was sentenced to 15 years in prison on charges of seditious conspiracy and another Pittsburgh-area man sentenced to 14 years in prison for indiscriminately spraying pepper spray at police officers, throwing a folding chair at officers and wielding a large wooden ‘tire thumper,’ according to the Justice Department.
Krasner declined to detail further how, or if, his office will move on the state charges, and his office did not respond to several requests for comment from Fox News Digital.
However, Krasner maintained that in his view, ‘there is a path’ for charging Jan. 6 individuals — and not just those living in the Keystone State.
Trump’s decision to sign a sweeping act of clemency freed more than 1,500 individuals that were charged in connection with the Jan. 6, 2021 U.S. Capitol breach.More than 100 police officers were injured, according to officials, and the incident ultimately sparked the largest FBI investigation in the bureau’s history.
‘In many cases, it will be possible to go after people who have been federally pardoned,’ Krasner told CNN Thursday.
‘The focus for most state prosecutors should be what occurred within their jurisdiction,’ he said. ‘Texting, phone calls, emails, reservations for transportation or hotels. Conspiratorial activity could give rise to a local charge — meaning a state charge — of criminal conspiracy.’
Still, that is not to say that the strategy is without significant hurdles.
Former prosecutors told Fox News Digital that those looking to bring state charges against Jan. 6 rioters will almost certainly find themselves mired in a complex legal minefield.
The difficulty of securing state convictions has nothing to do with the seriousness of the crimes committed by the Jan. 6 rioters — which range from charges of seditious conspiracy and conspiracy to obstruct an official proceeding to assault and assault against police officers — but rather, jurisdictional issues and wide double jeopardy protections.
Here, the facts are especially complex, since both Washington, D.C., and U.S. Capitol grounds fall under federal court jurisdiction, former U.S. prosecutor Andrew McCarthy explained in a Thursday message to Fox News Digital.
This means any conspiracy to commit a crime would inherently be at the federal level — a complex catch-22 that would be difficult for state prosecutors to isolate in court.
State prosecutors also have a very narrow scope in trying to prove new criminal action.
That is because they must do so while respecting the broad double jeopardy protections included in the U.S. Constitution, which prevent individuals from being tried for the same case twice. It also is taken to mean that they cannot be tried twice for the same conduct.
In fact, for state prosecutors to bring charges against an individual, they must prove successive actions are focused on remedying a ‘very different kind of harm or evil’ than the federal charges, and it is unclear whether states will be able to meet that burden of proof.
McCarthy and other lawyers pointed to the 2019 decision by a New York judge who cited the double jeopardy clause as the rationale for tossing a 16-count indictment state prosecutors brought against Paul Manafort, Trump’s former campaign chairman, ruling that the conduct was not sufficiently different.
It is unclear how, or if, any charges brought by state prosecutors could satisfy the test of proving a ‘very different kind of harm or evil’ — but Krasner, a self-proclaimed Democrat who has spent more than 20 years as a prosecutor, said he believes so.
He is not the only one sharing that sentiment. One partner at the Democrat-aligned Elias Law Group told Fox News Digital in an emailed statement Friday that it is their belief that ‘any individuals who committed crimes that day should be held accountable.’
‘If any of the rioters may have violated state laws, it is up to state and local law enforcement officials to review the facts and bring charges as appropriate,’ the attorney said. ‘The rule of law must be upheld, regardless of President Trump’s political incentives.’
Meanwhile, Republicans were forced to toe a delicate line in the aftermath of Trump’s pardons — facing tough questions as to what the clemency orders meant for a party that has long been seen as one that ‘backs the blue’ and supports police officer protections.
Vice President JD Vance used an interview on CBS News on Sunday to accuse former Attorney General Merrick Garland of applying ‘double standards in how sentences were applied to the J6 protesters, versus other groups,’ in an attempt to soften his earlier remarks.
Vance, a former U.S. senator, previously told Fox News that Jan. 6 participants who committed violence ‘obviously’ should not be pardoned.
Meanwhile, House Speaker Mike Johnson, R-La., told reporters Wednesday ‘the president has made his decision.’ ‘I don’t second-guess those,’ Johnson said.
Others were more direct in their criticism.
Sen. Lisa Murkowski, R-Ala., told reporters that she was ‘disappointed to see’ the decision to pardon violent offenders, including those who were convicted of violence against police officers.
‘I do fear the message that is sent to these great men and women that stood by us,’ she said.
This was echoed by Senate Minority Leader Chuck Schumer, D-N.Y., who told reporters the pardons were ‘deeply un-American.’
‘Let’s be clear, President Trump didn’t just pardon protesters,’ Schumer said. ‘He pardoned individuals convicted of assaulting police officers. He pardoned individuals convicted of seditious conspiracy. And he pardoned those who attempted to undermine our democracy.’
More than 200 people were in the custody of the federal Bureau of Prison system prior to Trump’s pardon. By Tuesday morning, all of them had been released, officials told The Associated Press.
Ed Martin, a defense attorney who represented three men charged in the Jan. 6 riots, was recently appointed as the acting U.S. attorney for the District of Columbia.
Martin filed a motion Friday to remove all remaining conditions imposed on commuted Jan. 6 defendants, including restrictions that barred certain individuals from entering Washington, D.C., or the U.S. Capitol building.