Caught in between the January 6th defendants who had already completed their sentences and those sentenced for many years of imprisonment to come were some whose prosecutions had commenced, but had not yet been completed. Nicholas DeCarlo and Nicholas Ochs were two defendants who had already pleaded guilty, already allocuted under oath that they committed the crimes with which they were charged, and were awaiting sentence when Trump directed the prosecution to trash the case.
I further direct the Attorney General to pursue dismissal with prejudice to the government of all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021.
Proclamation and civic ignorance aside, does the prosecution have the power to make cases disappear because the president says so? For DeCarlo and Ochs, the question was put to Judge Tanya Chutkan, who happened also to be the judge in the indictment against Trump for his role in the insurrection. Judge Chutkan was, unsurprisingly, unimpressed by Trump’s proclamation and the government’s Rule 48(a) motion to dismiss with prejudice.
Here, the government’s cursory motion provides no factual basis for dismissal. Instead,
the single paragraph explanation included in the one-page dismissal motion cites “as the reason for this dismissal,” only a presidential proclamation “dated January 20, 2025, Granting Pardons and Commutation of Sentences for Certain Offenses Relating to the Events at Or Near the United States Capitol on January 6, 2021.” This cited proclamation, inter alia, directs the Attorney General “to pursue [the] dismissal with prejudice to the government of all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021.” The only reason provided for this instruction, as set out in the Proclamation’s introduction, is the assertion that this action “ends a grave national injustice that has been perpetrated upon the American people over the last four years and begins a process of national reconciliation.”
The reason no factual basis for dismissal was proffered is that none existed. Crimes were charged and the defendants admitted under oath their guilt. It’s one thing to pardon a person after prosecution is over, when the courts no longer have jurisdiction over the matter, but another entirely when the case is pending and the authority of the court is required to do the dirty.
No “national injustice” occurred here, just as no outcome-determinative election fraud
occurred in the 2020 presidential election. No “process of national reconciliation” can begin when poor losers, whose preferred candidate loses an election, are glorified for disrupting a
constitutionally mandated proceeding in Congress and doing so with impunity. That merely raises the dangerous specter of future lawless conduct by other poor losers and undermines the rule of law. Yet, this presidential pronouncement of a “national injustice” is the sole justification provided in the government’s motion to dismiss the pending indictment. (Citations omitted in all quotes.)
While one might view Judge Chutkan’s findings as a condemnation of Trump’s pardons, commutations and directive to dismiss the pending cased, and no doubt there was a strong element in there reflecting Judge Chutkan’s position as to Trump’s nonsensical rhetoric, the government made its motion and Judge Chutkan ruled, as is her duty.
Despite finding that the sole reason relied upon by the government to dismiss the charges in this case—i.e., an incorrect assertion in the presidential proclamation—is neither substantial nor factually correct, the government’s view of the public interest does not clearly fall within the types of reasons found to provide legitimate grounds to deny the government Rule 48(a) motion to dismiss charges. See United States v. Flynn, 507 F. Supp. 3d 116, 130-31 (D.D.C. 2020) (collecting examples where a government motion to dismiss should be denied as not serving “legitimate prosecutorial interests,” because the motion “was a sham or deception,” “was based on ‘acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled,’” or was meant to favor “politically well-connected individuals” (citations omitted)). Therefore, the government’s motion to dismiss the indictment is
GRANTED.
It’s disconcerting that a federal court, having jurisdiction over a criminal prosecution, is constrained from rejecting dismissal when its basis is purely cynical political pandering. What of the duty to protect the public? What of the integrity of the court and its process to not allow itself to be party to an abuse of power by a president who uses the prosecutorial authority of the government to favor some despite the facts and the law?
But while circuit precedent may not have given Judge Chutkan the authority to deny the government’s Rule 48(a) motion, cynical and baseless though it may be, she was not without authority to preserve some small speck of judicial integrity.
Nothing about the government’s reasoning for dismissal warrants entry of dismissal with
prejudice, however. Dismissal with prejudice is a complete adjudication of the matter and would bar any further prosecution of defendants for their offense conduct at issue. This result would be improper here, particularly when defendants’ own admissions of criminal conduct, including throwing smoke bombs at law enforcement officers who were trying valiantly to prevent rioters from entering the Capitol Building, provides ample basis for criminal prosecution. Instead, the government’s reliance on a policy assertion made in the presidential
proclamation that such prosecutions should not be continued warrants only “render[ing] the
proceedings a nullity and leav[ing] the parties as if the action had never been brought,” which
is achieved by granting the government’s motion to dismiss without prejudice,
The Constitution may grant the president the unfettered right to show mercy by the exercise of the pardon power, but for those defendants with the misfortune of still being within the jurisdiction of the federal courts, dismissal remains subject to leave of court, even if that authority precludes a judge from ruling against the prosecution’s baseless motion at the expense of the public. While dismissal was granted, it was not with prejudice.
