In their "Main Justice" podcast on Tuesday, former Justice Department officials Mary McCord and Andrew Weissmann noted that the judges overseeing Jan. 6 cases aren't going quietly since Donald Trump issued pardons to many of those convicted.
McCord said that the interim Washington, D.C. district attorney who has taken over under Donald Trump's presidency is demanding that cases not yet to be heard now be dismissed.
Judges are doing so, but "in granting the government's motion to dismiss have made statements in court, if there was a court appearance, but I think this [has] almost been entirely in writing," said McCord.
Those judges "have really made clear that the dismissal does not wipe away — the pardons and the commutations — none of it wipes away the reality of the violent attack on the Capitol on Jan. 6, 2021, and the effort to overturn the election that day. That whatever the president has done with the stroke of his pen can't change that realty."
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Secondly, McCord said that judges have dismissed without prejudice — which means charges could be filed again.
"Some of the judges have said, we will dismiss because we know it is the executive's prerogative to decide what to prosecute and what not, but the rules require it to be with leave of the court and we see no reason has been given to dismiss this prejudice," McCord paraphrased.
"That the only reason in the executive order about these pardons is to end a grave national injustice, which, of course, the judges do not believe there was."
More significantly, however, is that U.S. District Court Judge Amit Mehta, who has presided over the Oath Keepers' cases, ordered that under supervised release, the men cannot enter Washington, D.C. or the U.S. Capitol.
McCord said that supervised release conditions are either applied at sentencing or at the end of a sentence and if those conditions are broken, the individuals could be re-incarcerated. Mehta can do this because the Oath Keepers' sentences were commuted instead of fully pardoned.
The interim U.S. Attorney released a statement saying that if Gen. Mark Milley was denied entry into the Capitol after receiving a preemptive pardons, "most Americans would object." He then demanded that Judge Mehta vacate the idea of supervised release.