Lawfare Archive: Former Deputy Chief of the Justice Department's Capitol Siege Section Alexis Loeb on President Trump's Pardons

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and thank you for supporting Laugh Fair. I'm Marissa Wong, and Turnet Laugh Fair. With an episode from Laugh Fair archive for May 23rd, 2,026. On May 20th, two officers who defended the capital on January 6th filed a lawsuit against

the Trump administration to block its creation of the almost $1.8 billion anti-weaponization fund,

which the officers say will be used to reward rioters and right-wing militia groups, who tried to stop Congress from certifying the results of the 2020 presidential election. For today's archive, I chose an episode from January 23rd, 2025, in which Roger Parloff sat down with Alexis Loeb, the former deputy chief of the Department

“of Justice's Capital Seed section to discuss President Trump's blanket burdens and”

commutations for the J6 rioters. The pair discussed how Loeb was involved in the investigations and prosecutions of these cases, the potential impact of the blanket burdens and more. It's The Laugh Fair podcast. I'm Roger Parloff, senior editor at Laugh Fair, and I'm with Alexis Loeb, who was deputy chief of the January 6th Capital Seed prosecutions. Of course, the cases involving individuals who committed violence,

I'm worried about those and I'm worried about what those individuals will do in the future,

although I, again, I hope they take this opportunity to have a real second chance and live

the rest of their lives differently. Today, we're talking about the nearly 1600 defendants prosecuted by her unit and Trump's day-one partens and commutations of basically every single one of those individuals. So Alexis, you were until October, a deputy chief of the Capital Seed section of the U.S. Attorney's Office for Washington, D.C., the unit that prosecuted all the crimes arising from the riot on January 6th, 2021. And on day one of his second term,

President Trump wiped out all of your work, basically, and he referred to it as a grave national injustice perpetrated upon the American people over the past four years. You cared a comment? Thank you, Roger. It's good to be with you. First of all, let me just give one caveat, which is that I am only speaking for myself here, and I'm no longer with the Department of Justice. President Trump did not wipe out all of my work or all of the department's

work. That's because the prosecutions created an enormous, factual record, and that record still stands for even a defendant convicted only of misdemeanors, for example, the government

the verdicts are erased and the sentences are commuted, that factual record will be there.

“I would also note that in these cases, in addition to the sentencing memos, when the government”

arrested defendants, for most of them, the government issued a complaint that included pages and pages of facts detailing what those defendants had did, and that's not going away either. That being said, the partis were disturbing on multiple levels, and that's not because I feel like it was wasted effort on my part or the department's part. I have no regrets about the work I did, and I'm very proud of the work that others did, but the partis are disturbing for a few

different reasons, which I'd be happy to go into. Sure, please do. First of all, the partis are

a blow to the victims, the officers who faced down a crowd of thousands of their fellow citizens

“attacking them, many with all sorts of makeshift weapons and traditional weapons, officers who”

were just trying to do their job and who were trying to protect Congress and the peaceful transfer of power. The partis are a blow to the sacrifice that all those officers made, and in addition to the officers who were victims of the attack, there are also the officers who testified these trials, sometimes for some officers in trial and trial, after trial, and those officers relived

minute by minute what that day was like for them, and it was very clear through their testimony

that it was a terrible day, many of them lost friends, it affects everyone differently, but there were many officers who years later were still affected by the attack, and they came forward to tell their story over and over, subjected themselves to cross examination, attacks on their credibility, attacks by the public. The objohn and the officer victims piece of it, of course, the partis undermined a rule of law. This was an attack on the peaceful transfer of power,

the partis send a message that it's okay to commit violence. If you're committing violence on

“behalf of the right person, and I think that the partis all make us less safe today, they make”

America less safe today. You know, the partis are also difficult because this was not a political prosecution. These prosecutions were staffed by career prosecutors like myself, many from across the country, all different kinds of backgrounds working in partnership with FBI agents, and you know, when politics did come up, I can just say that people of all different political persuasions worked together on these prosecutions, career public servants, and the reason I did that,

the reason many of us, I think, did that, was that we saw an enormous crime that was committed, and the facts on the ground indicated that an enormous crime had been committed, and we just wanted to follow the facts and do the right thing. Let me orient the listener a little bit. Tell us about your involvement, so where were you on January 6th, and when did you get involved in this project? On January 6th, I was at Assistant United States Attorney, again, it's a career

prosecutor with the U.S. Attorney's Office in San Francisco, which is part of the Department of Justice, and actually, on January 6th, I was not at work, I was on maternity leave, because I had recently had a baby, and I was planning to remain on leave for a little while longer, but Roger, when I heard the attacks on the radio and saw them on TV, and then the department put out a call for prosecutors around the country who might be willing to join in the effort

to hold people accountable. I felt like it was just something I couldn't say no to. It was such an attack on the country that I felt like I had to throw my hat in the ring and do what I could. So, I joined the effort in about February 2021, so about a little over a month after the after the attack. And then you came out to DC and were you seconded to the U.S. Attorney's Office here? Exactly right. For about the next three and a half years, I was what we would call

You know, I would have to check the exact date that it switched over from Michael Sherwin to

“Channing Phillips, who was the acting U.S. Attorney until Matt Graves came in, but it's absolutely”

correct that the prosecution started under a Trump appointed U.S. Attorney. And I want to address that part of his proclamation, Trump's proclamation that called this effort a grave national injustice perpetrated upon the American people over the past four years. That's an attack on the prosecutors. It's also, and you've explained who they were. I regard that as an attack on the judges as well. Tell us about the judges handling these cases.

The judges handling these cases were appointed by many different presidents, of both parties,

and there were several judges appointed by President Trump, and all of the judges convicted

“defendants for their crimes on January 6th. And in fact, many of the defendants opted to have their”

case tried by judges, so judges were the ones rendering verdicts in many of the cases. One type of claim that is commonly aired about the prosecutions is well, what about people in Portland, what about Black Lives Matter protesters, and it was actually two judges appointed by President Trump, Judge McFadden and Judge Nichols, who wrote two of the early opinions,

finding that really those comparisons didn't hold water because for different reasons,

but essentially because the attack on the Capitol was so singular and so much of a threat, and the scale of violence targeting Congress and broad daylight was just unmatched. And incidentally, I wrote an article fairly early on. It was January 2023. I compared the outcomes in the jury trials and in the bench trials, the judge trials, and at that point, I did it by count, and 89%, there was an 89% conviction rate in front

of juries and an 88% conviction rate in front of judges. And of course, the judges, because of self-selection, they tended to be the Republican appointed judges, and particularly the Trump appointed Trevor McFadden. At that point, at least, it didn't seem to make any difference. I can vouch that those numbers have been done again since then. And Roger, for me, that raises another note where the part of the partens, which is what are they actually erasing, and one of the things

they're actually erasing are the verdicts, and those the verdicts are the moments when juries of ordinary citizens and judges who have been talking about were appointed by both parties, and of pronounced, you know, this is the truth of what's happened. The government has proven its case beyond

“a reasonable doubt. So I think that is another difficult aspect of the partens is that it's this”

attempt to wash away an moment of truth telling so that then what's left are, you know, the arguments on both sides. I mean, I'm hopeful that the government, especially through the testimony of officer, witnesses, and unprecedented amounts of video has put together a factual record that will stand the test of time, but there is a loss when those those verdicts devoid what is lost or the voices of ordinary citizens in the process and also the judges. Vice President

Vance, you know, as recently as January 12th, had mentioned that obviously those who committed violence shouldn't be pardoned, and then there were some negative feedback and Kyle Cheney writes about this in political, and then shortly thereafter he began to backtrack and he said, I assure you, we care about the people unjustly locked up. Yes, that includes people provoked, that includes people who got a garbage trial. How does that make you feel when the vice president

describes these as garbage trials? It seems completely contrary to the facts on the ground, where the defendants did get due process. And you know, and that due process isn't just the fact that they got a trial. It's, you referred to defendants being held for any defendant to be held in jail, pre-trial, a judge had defined by clear and convincing evidence that they were a danger

have multiple levels of the pellet rights, for example. And one of the DC circuits, early decisions

in the January 6th cases, actually, and of circumstance, and set forth guidance about pre-trial detention, particularly in the January 6th context, and then the department of course, and it followed the pellet course guidance. So it just doesn't ring true at all to anyone who is actually seen these trials, seen the amount of evidence, read the filings, and seen these cases unfold.

“Yeah, I think that some people that are out there, and, you know, somewhat,”

with some justification might say, well, DC was is an unusual jurisdiction,

more than 90% of its residents voted against Trump in 2016 and in 2020, and also in 2024,

in fact. What could you tell them? It is where these juries by, what would you tell them about that? I would say that that was an issue that many defendants raised, and that across the board, judges rejected, citing precedent going at least as far back to the Watergate scandal, when the DC circuit found that when addressing the issue of whether trials related to Watergate could go ahead in the district of Columbia, where, of course, many people had strong feelings about that.

“And, and of the line of reasoning, from those cases that continued through to the January 6th”

cases, including in a recent DC circuit opinion in the Webster case, is that this is really what for our dear is for, and sometimes the judges would spend days picking a jury, examining one by one, each jurors, biases, and feelings about January 6th, their connections to the capital, their feelings about the defendants, to make sure that these were jurors who could set aside their feelings, or set aside, if assuming that the juror did have some sort of preconceived notion

about January 6th that the juror could decide the case based on the evidence, the lawyers from both sides had a chance to ask follow-up questions, and then in addition to the court and the lawyers for both sides identifying jurors who really seemed like, maybe this wasn't the right trial for

them to sit in, both sides had preemptory challenges where they basically have discretion to

to remove jurors and in the criminal, the federal criminal system, the defense has more preemptory challenges than the prosecution does. And Roger, if I could just return to a point you made earlier, the idea that the claim that many of these defendants were provoked, the law allows for that possibility, the defendants and several defendants could go to trial and say, the police provoked them, the police attacked them first, or they were trying to defend

other people from being attacked by the police. There was a jury instruction, the law has established elements, the elements of that defense, and so defendants were able to to bring that defense. It's just that over and over again, juries and judges rejected that defense, and they saw who really

“were the first aggressors here in those trials, and I think they found that it was the, it was”

the defendants. Also in the president's pardon proclamation, he said that these pardones would begin, quote, a process of reconciliation. Are you optimistic that these pardones will begin a process of reconciliation? It seems difficult to see how there will be a process of reconciliation when it appears to be entirely one-sided. So I think if you look at other kind of processes of reconciliation, often there is acknowledgement of wrongdoing and then a process

of forgiveness after that, and I don't see any of that happening here. Of course, it is my hope that defendants who claim that their intentions were nothing but peaceful, and that their sole motivation was patriotism. Of course, I hope that now that they've been pardoned, they are able to use that opportunity to, and have lived productive peaceful lives, but it's hard to see

really represents a true reconciliation process.

One of the pardoned defendants and recate Tariel, who was head of the proud boys at the time,

“after his release, I think maybe the 21st of January, was speaking to being interviewed by Alex Jones,”

and he said, they didn't care about the evidence, they cared about putting Trump supporters in prison. Well, now it's our turn, now it's our turn. I'm happy that the president's focusing

not on retribution and focusing on success, but I will tell you, I'm not going to play by those rules.

The people who did this, they need to feel the heat. They need to be put behind bars. They need to be prosecuted. They need to be imprisoned. They need to pay for what they did. That doesn't sound like reconciliation to me. Are you concerned about retribution against either your colleagues or officers or other witnesses in these cases? I would agree that that does not sound like

reconciliation to me either. Again, those remarks don't at all match the facts on the ground,

and I'd be happy to address that. But in terms of retribution, I don't have a crystal ball.

“I would say that it's becoming a prosecutor. I think it's an of a risk that”

is there in prosecuting any range of cases. It's not limited to January 6th. Fortunately, it is not something that has occurred frequently. If there is a desire to have a narrative of reconciliation, of course, retribution or responding with prosecutions or investigations would be completely antithetical to that. I'm not a politician nor am I a mind reader, but from what I've read, it does seem like the partens, particularly for those who assaulted police, have been deeply

“unpopular. I would have to think that an effort that continues to keep the focus on that,”

and targets people who were trying to protect police officers or the police officers themselves would be deeply unpopular as well. The mechanics of the proclamation were a little unusual. 14 people got commutations and the rest got pardoned, and it wasn't entirely clear to me what thinking went into that. The 14 were people that had been charged with seditious conspiracy, but not necessarily convicted. I don't know if you've looked this closely, but people like Tom

called well, who was acquitted of seditious conspiracy and sentenced to 53 days. Time served. Got a commutation and Enrique's tario, who was convicted, and got 22 years, he got a full pardon. Am I missing something? No, Enrique's tario did seem absent from the list that otherwise included the other members of the proud boys who were in the same seditious conspiracy trial with him, and were convicted of many of the same crimes. Yeah. There was one other part of the proclamation

that is worth mentioning. The commutations and the parties go to people that have been convicted, then he goes on and he says he directs the attorney general to pursue dismissal with prejudice of all pending indictments, pending indictments. So these are cases where you haven't had either you haven't had a verdict or you haven't had a sentence. And there are about three, the DOJ previously

Now, I can't remember since Watergate, a president ever directly interfering

“with a prosecution telling people to drop a prosecution. I think Bill Barr directed”

that my Flynn's prosecution be dropped, but I don't think that was traced directly to Trump. Are you aware of a president directing that prosecutions be dropped, especially prosecutions that are sort of linked to him? You know, I would say here that my experience has been limited to my 11 years in the Justice Department, and I personally cannot remember seeing this before, you know,

let alone, then when you start to talk about the scale of this and the, the sweeping nature of it.

And I'm not an expert in partens, but traditionally, partens have been used for people who had often served the very long time in jail, served as significant amount of their sentence, not people who had not yet been convicted. And showed remorse? Yes. It was more of an, you know, an act of an act of clemency, an often in recognition of remorse or rehabilitation. Yeah.

“Are there cases that worry you most or maybe categories of case that worry you most?”

I don't think this will come as much of a surprise, but of course, the cases involving individuals who committed violence, I'm, I'm worried about those and I'm worried about what those individuals will do in the future, although I, again, I hope they, they take this opportunity to have a real

second chance and live the rest of their lives differently. I'm worried about some of the members of

organized groups who may now begin to to organize again. I would say that those, those are the, the two main categories that I, but I'm more worried about. I think maybe yesterday or the day before Trump appointed a new acting U.S. attorney for the District of Columbia. His name is Ed Martin Jr. Is that a name you're familiar with? Only from, only from the news reporting about it. Okay. And if I could just clarify something I said earlier when I said that I was

concerned about organized groups, what I mean is organized groups who have, have embraced violence as part of their ideologies. So no, I'm only familiar with Mr. Martin from the news reporting,

“which, you know, I think raises raises a point, though, in response to Mr. Tario's comments about”

suggesting that these prosecutions went after Trump supporters. The news reporting indicates that Mr. Martin was at the Capitol on January 6. And Mr. Martin, of course, was not charged and that's because in many different ways the department exercised its discretion and the department did not charge everyone who was at the Capitol. It did not charge people who were at the Capitol even if they were in the restricted area and perhaps the government could have proven the elements

of the trespassing statute. Of course, there were thousands of Trump supporters who attended the rally at the ellipse and they were perfectly free to do that and they weren't charged either. So the idea that the government was trying to go after Trump supporters rather than following the facts is just completely contradicted by the prosecutions in this case and the facts of those cases. Okay, and just for listeners to fill the manner, it's been reported that Mr. Martin was

to stop the steel organizer and subsequently became a board member of the group. I forget what it's called. Something like Patriot Freedom Project sort of a group that lobbies or advocates on behalf of the defendants that have been convicted or detained and also to explain the the trespass federal trespass statute, you know, literally would encompass the perimeter of the Capitol that day. You would you would violate it if you trespass the perimeter you wouldn't have to enter the building.

In reality, it was not charged almost ever. It correct me if I'm wrong. I think there were

other crimes and then you were charged. And I think the recent figures provided by the DOJ

“were that at least 400 cases were declined. People that could have been prosecuted for that”

misdemeanor, but did not commit violence did not enter the Capitol. The perimeter also was not just aligned on the map. It was a perimeter with fencing and in fact there were many layers of fencing even once you got inside the outer perimeter. There was also signage on the fencing saying area closed. Right. And there was OC gas whafting over and there were there were a lot of hints. And the government had to prove in those cases that each individual knew that they didn't have

permission to be where they were and that they were there anyway. And in at least one early case

Judge McFadden found that the government hadn't proved that and he acquitted that defendant, but in the overwhelming majority of cases, of course the jury's and judges and defendants themselves admitted that they knew they weren't supposed to be there. They knew it was off limits and they

“were there anyway. You handled some proud boy cases yourself. Can you describe any of those?”

Certainly, I was one of the prosecutors who worked on the trial of an individual named Christopher Whirl and his co-defendant Daniel Scott who actually completed guilty and did not go to trial. Daniel Milkshake Scott? Yes. Yes. His nickname was Milkshake. Yes. For the important figure, really. Yes. And what Daniel Scott admitted was really in one of the pivotal moments of the riot. He was a key if not the key instigator. So what happened was there was a

line of capital police on the west front guarding a set of stairs that went up to a landing that

actually led to doors into the building that ended up being the very first doors breached by

the rioters about two PM that day. And Mr. Scott kind of rushed forward and he's he's not small. He rushed forward and essentially body slammed two officers and then the crowd rushed forward behind him and up the stairs and from there made their way inside the building. He and Mr. Whirl and let me be clear here. I'm just talking about I'm talking about publicly available facts here from Mr. Scott's plea agreement, the sentencing memoranda and what the facts showed at trial.

Mr. Whirl and Mr. Scott were both members of the proud boys from Florida and Mr. Whirl came to the capital that day with pepper gel, which is it's like pepper spray, but the delivery mechanism is a gel and not a spray. And Mr. Whirl used pepper gel against the police and then from there he moved to the area where Mr. Scott committed the assault that I just described and he along with several others and have celebrated that assault on the police and the mob's progression forward.

Mr. Whirl elected to have a bench trial. That bench trial was before Judge Lamberth who was also an appointee of a Republican president. Judge Lamberth convicted Mr. Whirl of all accounts including assault on the police with a dangerous and deadly weapon. Another interesting thing about Mr. Whirl's case is when you're convicted of assault with a dangerous and deadly weapon, usually upon conviction, if you're not already in jail, you're supposed to be detained immediately.

The statute doesn't give Judge as a lot of wiggle room. Judge Lamberth decided to let Mr. Whirl remain out pending his sentencing in a few months and Mr. Whirl then absconded and it took several more months before the FBI was able to find him and at that point he was sentenced. Incidentally and again correct me if I'm wrong, you mentioned that this was a pepper gel instead of

“the ordinary spray. I think that the gel is harder to get out of your eyes, it sticks at least.”

This is the testimony I've heard from officers. Does that sound right? I think that does sound right. Mr. Whirl's trial, the government had a toxicologist expert testify about the effects on the cardiovascular system and the lungs and of course the skin and the eyes

becoming a trainer and in fact part of becoming an officer is getting sprayed with pepper spray during

the training and he was able to describe very vividly how being pepper sprayed to him felt like.

“I think at one point he used the phrase and lava-tipped spears being poked into your eyes which just”

painted a very vivid picture and that's in a controlled setting when you know as part of a training exercise which just painted a vivid picture of and of how severe pepper spray can be for some individuals and then you you couple with that of course with the fact that that pepper spray and pepper gel were being used in the middle of a riot and so it's particularly dangerous because it's

being sprayed at officers who are trying to defend themselves against threats from all sides from

people throwing things at them or rushing at them so to you know even if they didn't feel immense pain from the pepper spray itself left them very vulnerable and we saw this not another officer actually testified to a moment where some other officers got sprayed and kind of grabbed on to some of the fencing and then started to get dragged into the crowd and had to be rescued. Yeah to be blinded in a violent mob must be a frightening experience. By the way Warl got if I'm

correct about ten years and of course he has been pardoned full. And that ten years was below what the sentencing guidelines recommended so he got a less of a sentence than what the sentencing guidelines set would say should be the sentence for someone like him who you know assaults assaults an officer using a deadlier dangerous weapon. And maybe one last detail from his sentencing

“memo that lodged in my mind he had some prior convictions that I think were too old to count in”

terms of the sentencing guidelines but one of them was sort of disturbing and was mentioned it a couple but he was if it was for impersonating a police officer he had allegedly flashed a badge and tried to pull over a woman who was alone on the highway and there were handcuffs and weapons in his vehicle. You also prosecuted Joseph Fisher who was well you tell us it had to do with 15 12 C2 18 USC 15 12 C2 this was the corrupt obstruction of an official proceeding and it was his

case that the Supreme Court eventually overturned were you blindsided by this argument did you see it coming tell us about that. So I I can't and have talked about internal to the DOJ what we did

“or did not see coming. So I can say that it was a very long litigation process where I think in”

the summer of 2021 maybe even the spring defendants started filing motions to dismiss this charge obstruction of an official proceeding and arguing that it didn't apply to their conduct which was torturing the capital. So the litigation had been going on for a long time but before judge Nichols who was the district court judge in Fisher agreed with the defendants interpretation of the statute all of the other district judges again including judges appointed by both parties

had agreed with the government that really the plain language of the statute which criminalizes whoever obstructs an official proceeding in any other manner the other judges had all found that it applied and had written very long thoughtful opinions about that. Okay well is there anything I haven't asked that I should have asked. I just want to say that I am enormously proud to have contributed to the prosecutions and I'm very proud of the work of my colleagues at the DOJ

and the FBI and it really is my hope that the incredible unprecedented factual record

that we built will be something that people will look to for years to come to understand what really happened on that day as as proven in court. Alexis thank you for your service and thank you for your time. Thank you very much Roger. Nice to meet you. The law fair podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other law fair podcasts by

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