Trump May Have Accidentally Pardoned the Jan. 6 Pipe Bomber

As many in Washington were easing into the new year, there was a flurry of activity last week in the prosecution of Brian Cole Jr. — the man accused of planting pipe bombs outside the DNC and RNC headquarters the night before Jan. 6, 2021. The Justice Department obtained an indictment from a grand jury and, following a court hearing, persuaded a judge to keep Cole detained pending trial.

But there may be a serious problem on the horizon: Trump may have pardoned Cole last year as part of the sweeping clemency that he gave to Jan. 6 offenders on his first day back in office.

The White House has brushed off questions on the subject, but Justice Department prosecutors should be worried about this, and there were suggestions based off their briefs and statements in court last week that they already are. (The DOJ did not respond to a request for comment.)

Trump’s proclamation commuted the sentences of 14 individuals and also granted “a full, complete and unconditional pardon to all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021.” This immediately covered roughly 1,500 people, including hundreds of defendants who were charged with assaulting or resisting law enforcement officers.

Lawyers for Cole did not respond to a question about whether they intend to argue that Cole is entitled to a pardon if convicted. But there are several legal and factual points that are worth zeroing in on if they pursue that strategy.

For starters, it does not matter whether Trump specifically intended to pardon the person who planted the pipe bombs. Under the law, it is the text of the pardon that matters — not the subjective intention of the president or the DOJ’s interpretation of it. The Justice Department has claimed that it has the power to decide who is eligible for certain pardons, but the courts have been skeptical of that position, as they should be. Multiple judges last year rejected the Justice Department’s efforts to extend Trump’s pardon to defendants convicted of drug and gun crimes that were uncovered in the course of the government’s Jan. 6 investigation.

Trump’s pardon also appears to have no restrictions on when the charges against the relevant defendants have been brought. The Justice Department has already applied Trump’s pardon to people whose cases were merely pending (i.e., people who had not yet been “convicted”) at the time of its issuance.

Trump could have specified that the pardon applied only to people who had been convicted or charged “as of the date” of his pardon (or similar words to that effect), but there is no such language in Trump’s proclamation. Lest there be any doubt, the Supreme Court made clear more than 150 years ago that presidents have the constitutional authority to do this — that is, to issue “preemptive pardons” for past conduct even if that conduct has not been charged at the time of the pardon.

Moreover, the substantive scope of Trump’s pardon language is very broad, as the Justice Department’s own lawyers have maintained in other cases. If Cole is convicted, it is very possible that the presiding judge could ultimately rule (however begrudgingly) that his crimes were, in the language of Trump’s pardon, “offenses related to events that occurred at or near the United States Capitol on January 6, 2021.”

Last week, the Justice Department went out of its way during the court hearing to avoid using any phrases that might immediately connect Cole’s alleged crimes to Jan. 6, but prosecutors’ efforts were so obvious, that they had the effect of drawing more attention to it. The government’s pre-hearing brief also appears to have been designed to skirt this issue and put the most Trump-friendly spin on Cole’s motive for his alleged crimes — though ultimately not very convincingly.

The brief purports to describe a confession that Cole provided to the FBI after his arrest in which, according to the filing, “he explained that ‘something just snapped’ after ‘watching everything, just everything getting worse,’” and that he “wanted to do something ‘to the parties’ because ‘they were in charge.’” Jeanine Pirro, the former Fox News host who is now the U.S. Attorney for the District of Columbia, echoed this characterization in a social media post in which she claimed that Cole was “was frustrated with both political parties.”

There is reason to doubt whether this was a fair summary of Cole’s account. After all, the Justice Department suspended two prosecutors last year after they described the events of Jan. 6 as a “riot” carried out by a “mob” — all of which is of course true but makes Trump and the rioters in the mob look bad.

Pirro also has an obvious incentive to protect Trump (and herself) by obscuring the possibility that the reason that Cole “was frustrated with both political parties” was because he believed the lies that Trump and his allies were peddling on her old Fox News show and elsewhere — namely, that the election had been stolen from Trump by Democrats and that members of the Republican party’s establishment were letting the Democrats get away with it instead of overturning state election results ahead of the certification on Jan. 6.

If that is correct — the government did not release the video or a transcript of the interview — then Cole may be able to claim that his crimes were, in the words of Trump’s pardon, “related to events that occurred at or near” the Capitol on Jan. 6. Indeed, the Justice Department has already acknowledged that Cole cited the 2020 election conspiracy theories in his confession.

The judge’s opinion ordering Cole’s continued detention also noted that Cole had been “charged with placing the two IEDs in the immediate vicinity of the U.S. Capitol the night before U.S. lawmakers were set to gather to certify the results of the 2020 election.” Could this really have been a coincidence?

On top of that, as one former Jan. 6 prosecutor has noted already, Cole could argue that his alleged offenses were “related” to the Jan. 6 certification because they diverted law enforcement personnel away from the Capitol that day. In a variety of different settings, the Supreme Court has interpreted the phrase “related to” very expansively, with Justice Antonin Scalia — the most famous textualist in history — once describing the “ordinary meaning” of the phrase as “a broad one.”

The government’s recent brief appears to reflect some concern on precisely this point. After the language quoted above, the brief goes on to say that Cole “denied that his actions were directed toward Congress or related to the proceedings scheduled to take place on January 6.” Perhaps tellingly, this claim is made in a single sentence — and with no attempt to provide quotes from Cole to back it up.

Cole also did not have a lawyer at this interview; he waived his Miranda rights at the time, but has since obtained counsel. And they may have the opportunity to supplement the record over the course of the proceeding if Cole ultimately pleads guilty or is convicted at trial. In both contexts, Cole would at some point have the right — at a plea hearing, a trial or a sentencing hearing — to address the court directly about what he did and why he did it. The judge would be tasked with assessing the credibility of those statements.

It is fair to assume that if Cole is someday convicted and then determined to be covered by Trump’s pardon, Attorney General Pam Bondi, Pirro and other members of the Trump administration will blame the judge.

There was already a remarkably shameless display by the administration at the press conference convened shortly after Cole’s arrest featuring the four most senior officials who appeared that day. That would be Bondi, Pirro, FBI Director Kash Patel and then-FBI Deputy Director Dan Bongino, who all helped Trump advance the sort of lies about the 2020 election that appear to have influenced Cole’s actions. Needless to say, none of them mentioned any of this.

Also unmentioned was the fact that Bongino, back when he was a podcaster, had suggested the pipe bomber was an “inside job” and part of a “massive cover-up.” It’s possible that Trump officials felt compelled to make such a show of the arrest precisely because conservatives had fueled conspiracy theories about the case for so long — even if it has now left them looking even more foolish than they did after they tried to debunk the conspiracy theories about Jeffrey Epstein that they had promoted for years.

If Cole eventually walks following a conviction, the fault would rest entirely with Trump and the advisers and lawyers who worked with him on his pardon proclamation.

Cheerleaders of the sweeping Jan. 6 pardon did not bat an eye when Trump knowingly freed people like Stewart Rhodes and Enrique Tarrio — leaders of the Oath Keepers and Proud Boys, respectively, who were convicted at trial of a seditious conspiracy to prevent the transfer of power to Joe Biden. And they have remained silent as some of the people that Trump pardoned have gone on to commit more alleged crimes — a predictable development given the empirical evidence on recidivism rates among convicted felons. Some of these crimes have been explicitly political in nature, including threatening to kill House Minority Leader Hakeem Jeffries.

For all that’s happened in the last year, Trump’s Jan. 6 pardon remains one of his most stunning acts since he returned to office.

Roughly three-quarters of Americans objected to Trump’s pardon of at least the violent offenders that day. Vice President JD Vance previously assured the public it would not happen, but it did. When Bondi testified at her confirmation hearing, she could not defend it.

We are now in a midterm election year, and the effects of Trump’s pardon are still unfolding. The administration’s self-congratulatory press conference after Cole’s arrest may have been premature.