WASHINGTON — If Donald Trump wins in November, hundreds of people in prison for rioting at the U.S. Capitol on Jan. 6, 2021, could be set free before their sentences are up.
The former president has repeatedly said he would consider pardoning his supporters for their actions that day, and at least some of them have taken the idea to heart.
On Monday, hours after he had been sentenced to 20 years in prison for violently assaulting police with a flagpole and other makeshift weapons at the Capitol, David Dempsey had a message for the antifa types he imagined cheering his punishment.
“Don’t celebrate too hard, man, because that sentence is only gonna last like six months,” Dempsey said, speaking via phone from inside the D.C. Jail to a small group of Trump supporters that keeps a nightly vigil outside .
“And then we’re going to have four years of dragging our nuts across your forehead,” Dempsey said, “because Donald Trump is gonna win.”
Nearly 1,500 people have been charged with crimes for their actions at the Capitol, where they had marched, with Trump’s encouragement, to disrupt by physical force the congressional certification of Trump’s loss in the 2020 election.
Almost all of the criminal defendants have been charged with entering restricted grounds and more than 500 with assaulting or interfering with police, according to the Justice Department . Nearly 900 people have pleaded guilty to various crimes while 186 were found guilty at contested trials. More than 560 have been sentenced to prison.
How many might get out early if Trump wins? The former president said last year in May he would likely pardon “a large portion” of his mob, but not all of them. “I can’t say for every single one, because a couple of them, probably they got out of control,” he said.
Last fall, Trump said he would appoint a task force “to rapidly review the cases of every political prisoner who’s been unjustly persecuted by the Biden administration.”
This year he said would consider clemency for everybody but would be selective about who ultimately gets a pardon or a commuted prison sentence, offering vague criteria.
“If somebody was evil and bad, I would look at that differently,” Trump told Time magazine in April . “But many of those people went in, many of those people were ushered in. You see it on tape, the police are ushering them in. They’re walking with the police.”
Rioters first entered the Capitol by smashing through a window, and they fought police at several other access points. Pressed by ABC News’ Rachel Scott earlier this month on whether he would pardon rioters who fought police, Trump said he was open to it .
“If they’re innocent, I would pardon them,” Trump said.
Rioters standing on a police vehicle outside the U.S. Capitol on Jan. 6, 2021.
There have been plenty of controversial pardons in American history, including mass pardons of of unpopular groups, but never before has a presidential candidate campaigned partly on bailing out hundreds of his own criminally convicted supporters, said Barbara Perry, the Gerald L. Baliles Professor in Presidential Studies at the University of Virginia’s Miller Center.
“You’re always going to upset some people if a president decides to commute a sentence or pardon someone or grant amnesty,” Perry said. “But this one, to me, seems especially difficult because of what these people were doing to the institution of the Congress of the United States while it was engaged in its constitutional duty of confirming the presidential election.”
The closest historical parallel, Perry said, is likely Jimmy Carter’s campaign promise to pardon hundreds of thousands of draft dodgers, a pledge he fulfilled on his first full day as president in January 1977. The Vietnam War had been over for three years and Carter, a Democrat, said the mass pardon was needed to “heal our country” even though he expected a majority of Americans to disapprove .
“I’m not sure Jimmy Carter was trying to get votes of men who had raced off to Canada,” Perry said. “Particularly given his religious background as a born-again Christian, I think he saw this as a forgiveness model he was working with.”
Trump granted clemency to 237 people during his first term in office, often bypassing the Office of the Pardon Attorney in order to pardon or commute sentences of his personal political allies, many of whom had been convicted of fraud or public corruption.
As Trump and other Republicans have sought to downplay the riot, such as by suggesting it was orchestrated by shadowy government agents, the rioters and their families have become a key constituency. The highest-profile advocates for Jan. 6 defendants — known to Trump and many other Republicans as “hostages” or “political prisoners” — are relatives like Nicole Reffitt, whose husband Guy Reffitt was sentenced to seven years for leading a charge into the Capitol grounds, and Micki Witthoeft, the mother of Ashli Babbitt, who was shot as she tried to climb through a doorway inside the building.
For the past three years the jail has held a few dozen Jan. 6 offenders at a time, typically ones awaiting trial or a post-sentencing assignment to federal prison. There were 28 Capitol rioters there as of Friday, according to D.C.’s federal prosecutor.
Nicole Reffitt, Witthoeft and others have led the vigil outside DC Jail, now in its third year of continuous nightly activity. On a typical evening, one or more inmates might call Nicole Reffitt’s mobile and she’ll then hold it up to a microphone connected to a small speaker. They chat about news of the day, the progress of their cases, then sing the national anthem before closing things out with a group singalong of Lee Greenwood’s “God Bless the USA.”
A woman waves a flag at a vigil for January 6th defendants outside the DC jail in Washington, D.C., on Jan. 3. Bundled against the winter cold, a dozen people outside Washington's jail pray, sing and shout their support for inmates held over the violent attack on the Capitol three years ago that sought to overturn Donald Trump's election defeat.
Trump himself has called in to the vigil and even collaborated on an audio track that combined the inmates, doing business as “The J6 Prison Choir,” singing the Star-Spangled Banner with Trump reciting the pledge of allegiance.
Not everyone loves the idea of a blanket pardon. Nicole Reffitt believes her husband was overcharged and deserves less prison time than he got, but not that he deserves no prison time at all.
“We are good with some things that he was charged with, because he did do those things. He did trespass,” she told HuffPost. “But bad actors will get away with a lot of bad stuff if they just come through and, say, commuted or pardoned them. And a lot of Jan. 6ers really want that, but there were things that happened that day, and people should be held accountable for their actions.”
Prosecutors said Guy Reffitt recruited others to come to Washington and instigated violence while wearing body armor and carrying a handgun. But he didn’t enter the Capitol building himself or attack police officers, despite encouraging others to do so. (His sentence could be reduced even without a pardon because the Supreme Court said prosecutors overreached in their interpretation of an obstruction statute that was used against Guy Reffitt and 258 others, including Trump himself.)
Nicole Reffitt said she wished whoever wins in November would consider reviewing the Jan. 6 prosecutions.
“I hope whoever gets in wants to do that,” she said. “I don’t think that would be the case, but that would be my wish, that our savior is not Donald Trump.”
Prosecutors described Dempsey as “political violence personified.” His 20-year sentence is the longest any rioter has received. In federal court on Monday, Dempsey apologized to police for his actions.
“You were performing your duties, and I responded with hostility and violence,” he said.
Later that evening, when he called in to the vigil , he was unrepentant, describing an FBI agent as a “bitch-ass coward” for not looking him in the eyes during his sentencing. He also seemed to acknowledge the possibility he wouldn’t get a pardon.
“None of that shit matters. The point is, my kid isn’t going to stop loving me, my family is still going to support me,” he said, before an automated voice warned him his jailhouse phone call only had a minute left. “Nov. 5, please make sure you get your asses out there and go vote for the greatest president we’ve ever had in this country, Donald J. Trump.”
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