Braxton Taylor
The military for now is leaving open the possibility of active-duty troops serving or continuing to serve if they are pardoned by incoming President Donald Trump for participating in the violent Jan. 6 insurrection at the U.S. Capitol four years ago.
A handful of active-duty service members, as well as about 15 who were in the National Guard and reserves, were among more than 1,500 people criminally charged for the violent clash with Capitol Police that was the first large-scale breach of the U.S. seat of government since the War of 1812.
As Trump prepares to take office Monday, he has vowed to move quickly on a key campaign promise to pardon many, if not all, of the participants of the riot who sought to stop the certification of the 2020 election win by President Joe Biden.
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The military has already been slow to deal with troops charged with and convicted of crimes during the attack: The Navy and Marine Corps still have Jan. 6 participants serving in their ranks. But Trump’s promise to issue pardons has put the services in a further bind.
Now, troops who participated in a violent insurrection aimed at blocking the commander in chief’s election win could be pardoned by the incoming commander in chief.
The services being unwilling to take decisive action on Jan. 6 participants and leaving the door open for them to serve after a pardon is “basically a tacit endorsement saying that this type of behavior is acceptable … that political violence is acceptable,” said Luke Baumgartner, a researcher at George Washington University’s Program on Extremism, which has closely tracked the cases.
Five Jan. 6 defendants were on active duty at the time, according to Baumgartner. Five more were soldiers in the National Guard, and 10 were in one of the four reserve branches.
With the number of military participants relatively low, any action the services could take against them would have barely any operational or manning impact. Experts said there are enough legal and policy barriers to keep anyone involved in the Jan. 6 assault on the Capitol from serving in the U.S. military should the services wish to exclude them.
Military.com reached out to all five Defense Department military branches with questions on the effect pardons would have on any ongoing punishments, as well as the impact they would have on potential recruits. The Marine Corps and Air Force were the only services to provide some answers.
The Army’s spokesman, Christopher Surridge, said that officials could not “speculate without seeing the language and scope of a potential pardon.”
The Navy, similarly, said it didn’t want to address any proposed pardons prior to them being issued by the White House. It has allowed a service member to remain on duty despite a conviction for crimes stemming from Jan. 6.
The promised pardons are a kind of political and legal curveball for the military, pitting good order and discipline against Trump’s persistent lies about a rigged 2020 election, which inspired the Capitol riot in January 2021.
After a Trump speech that day, hundreds of his supporters marched on the Capitol as Congress was certifying the election results; broke through windows and doors; assaulted and injured 140 police officers; and destroyed property, causing $2.8 million in damage, according to the Justice Department.
More than 1,500 participants were criminally charged, the department said, and the violent riot resulted in Air Force veteran Ashli Babbitt being fatally shot by a Capitol Police officer as she tried to climb through a broken window into the House chamber, where lawmakers were cowering in fear behind barricaded doors.
Trump has repeatedly said, including as recently as last month to NBC, that he would issue pardons to the rioters on Jan. 20 — “Day 1” of his presidency. He, along with his supporters, have also worked tirelessly to rewrite the history of the Jan. 6 attack, portraying the violence as a peaceful demonstration. Trump referred to the riot as a “day of love” and last year released a recording of Jan. 6 inmates singing the national anthem.
Researchers at George Washington University’s Program on Extremism said that promise could affect as many as 1,577 people charged with or convicted of playing a role in the insurrection.
Of that group, a disproportionately high 254, or 16% of the mob, had a military affiliation — they were either veterans, reservists, National Guardsmen or on active duty. Only about 6% of the overall U.S. population are veterans, according to the latest data.
Waiver Process
The Marine Corps and the Air Force, the two branches that chose to answer questions from Military.com, said pardons would not wipe away the convictions of those involved in Jan. 6, but if anyone pardoned for those crimes wished to join the military, the door would not be completely closed.
“Individuals convicted of crimes are disqualified, or ineligible, from service,” Rose Riley, a Department of the Air Force spokesperson, told Military.com.
But Riley also said that “individuals can request to pursue a waiver process where a determination will be made dependent on the individual’s conviction and conduct, and whether enlistment or accession is in the best interest of the U.S. Air Force.”
Aiden Bilyard was among the rioters at the Capitol. The 19-year-old subsequently enlisted in the Air Force only to be questioned by the FBI while in basic training at Lackland Air Force Base, Texas, in August 2021.
In what seems to be the fastest action any branch took to remove a Jan. 6 participant from its ranks, Bilyard was no longer in the Air Force by the time of his arrest the following November. Assaulting police with a dangerous weapon was among the charges against him.
Legal representatives for Bilyard did not return a request for comment.
Marine Corps spokesman Capt. Kevin Uebelhardt told Military.com that “a pardon does not reverse an administrative action,” such as separation for a crime, but he didn’t say that someone with a Jan. 6 conviction would be barred from service.
“It is after that review that a determination will be made if the individual is still qualified to enlist,” Uebelhardt said. “Attaining a pardon or other form of clemency does not omit that review to determine if the applicant is morally qualified to enlist.”
Pardon Does Not Mean ‘Not Guilty’
The Department of Defense has said explicitly on its own website that a pardon is not an expungement and stated that “both the conviction and the pardon would appear on the person’s record.”
There is also historical precedent and recent litigation that shows accepting a pardon could equate to admitting guilt.
The 1915 Supreme Court case Burdick v. United States found that a pardon “carries an imputation of guilt“ and “acceptance of a confession of it.” That same logic was cited by Justice Department prosecutors just last month in one Jan. 6 case where a defendant was seeking to delay their incarceration date because of the likely pending pardons from Trump, Politico reported.
Many legal experts, such as Dan Kobil, a constitutional law professor at Capital University Law School in Ohio and an expert on presidential pardons, agree with that logic.
Kobil told Military.com that lower-court decisions provide examples of people having professional punishment related to their crimes, despite being pardoned for them. One example was a ruling against former Ronald Reagan administration official and lawyer Elliott Abrams that censured him from the D.C. Bar despite the presidential action.
“It doesn’t eliminate the historical facts of what happened. It doesn’t erase everything, as if it vanishes, but takes away the conviction and it takes away many of the consequences of the conviction,” Kobil told Military.com.
Broad pardons of those involved with rebellions and protests is not without historical precedence.
Presidents George Washington and John Adams pardoned those found guilty in the 18th-century Whiskey Rebellion. During and after the Civil War, presidents Abraham Lincoln and Andrew Johnson also pardoned some past Confederates. Making good on a campaign promise, President Jimmy Carter pardoned those who evaded the draft during the Vietnam War, Kobil said.
But what makes Trump’s likely pardons of those service members involved with the Jan. 6 insurrection different, he added, is that they would occur in modern times and that the president-elect has frequently bucked the related guidance of the Justice Department.
“It can be a source of forgiveness and also mend divisions in society, or it could promote them,” Kobil said. “So, I think it’s going to depend on the way the pardons are administered and who they’re administered to.”
Legal experts such as Eric Carpenter, a former military lawyer and professor at Florida International University, said that service members would likely face an uphill battle if they wished to rejoin the ranks after a conviction, even with a pardon.
“The pardon would make it so that earlier conviction shouldn’t be disqualifying anymore, but my guess is that the folks that were wrapped up in this have got other issues too,” Carpenter said. “There might be other things that are now service disqualifying. … There’s a whole bunch of other things that practically might keep them from coming back in, even if they were interested in coming back in.”
Tolerated or Not Tolerated?
The military has already seemed reluctant to enforce accountability on troops involved in Jan. 6 as the pardons now loom.
By the fall of 2021, just 10 months after the insurrection, four of the five military members who had been charged were still serving, even though Pentagon officials like then-National Guard chief Gen. Daniel Hokanson stressed that “extremism is not tolerated in any branch of the U.S. military.”
In one case, the National Guard took a year to begin separating a private who had been charged, pleaded guilty and was sentenced to probation and a fine for his actions on Jan. 6.
Petty Officer 1st Class David Elizalde was sentenced to 30 days of home detention and a $2,500 fine in April after being convicted on a charge of violent entry and disorderly conduct on the Capitol grounds. Navy records show that Elizalde, an aviation mechanic, is still stationed at Headquarters Naval District Washington in Washington, D.C., after reporting there on April 14, 2023 — less than two weeks after his arrest by the FBI.
Military.com reached out to the Navy for more details on why Elizalde is still serving. A spokeswoman said that the service does not “have any additional information about legal measures taken for his actions.”
Four active-duty Marines were charged over Jan. 6 — an officer and three enlisted service members. Two of them are still serving.
A trio of junior enlisted Marines, all with jobs connected to the intelligence community, were convicted of “violent entry and disorderly conduct on Capitol grounds” in September 2023 and sentenced to 279 hours of community service.
More than a year later, NPR reported in October that retention boards decided to keep all three Marines in the Corps. Two of the three Marines, Sgt. Dodge Hellonen and Sgt. Joshua Abate, are still in the service, Marine officials confirmed to Military.com, though neither is working with classified programs.
The trial of a fourth Marine, now-former Maj. Christopher Warnagiris, on nine charges stemming from his trespassing on Capitol grounds, is still ongoing.
Throughout this time, Marine Corps officials kept reiterating that “extremism runs counter to our core values.”
Gen. Eric Smith, the commandant of the Marine Corps, said this week that “any Marines who were in violation of federal law, we put them up for prosecution, and the courts will do what they do.”
However, Smith also said that, “once an individual is cleared, as was the case for some of those Marines at Jan. 6, then they’re cleared.” He added that he didn’t think “we have an extremism problem within the Marine Corps any more than any other service does.”
The three Marines whose trials concluded were not cleared, though. They were convicted and sentenced.
Defense Secretary Lloyd Austin said that he was “comfortable that the civilian and military leadership of each of the services [were] working through appropriately each of these cases.”
Baumgartner, the extremism researcher who is also a former Army officer, said that Smith’s remarks were “inherently contradictory to what the justice system is telling us.”
“So, if extremism isn’t in keeping with the core values, then those people shouldn’t be in the Corps,” he said.
The responses also stand in contrast to how quickly and decisively the military often handles infractions of its own policies or laws. For example, service members who test positive for marijuana are typically processed out of the force immediately.
In some high-profile cases, military officials have said they wait on the results of civilian court proceedings before taking action. But that is not a formal requirement, and many commands don’t follow that policy for more common infractions like driving under the influence.
Meanwhile, the military’s will to root out troops or recruits who committed crimes on Jan. 6 is likely to soften dramatically under the Trump administration, even after any pardons.
Trump’s defense secretary nominee, Pete Hegseth, an Army National Guardsman and former Fox News host, has spoken out against the Pentagon’s past efforts to combat extremism within the ranks.
The incoming president has made a point of celebrating Jan. 6 participants and that may extend to the military. Carpenter said service members who may be pardoned for participating in the insurrection may be free to bring their views along with them while in uniform.
“These people probably have extremist views. Right now, the military has got a problem with extremism, has a history of extremism in the ranks,” Carpenter said. “Are they going to manifest those views in ways that would get them discharged?”
Related: What Happened to Members of the Military Accused of Storming the Capitol on January 6?
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