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

Summary

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

Date: May 23, 2026
Host: Roger Parloff, Senior Editor at Lawfare
Guest: Alexis Loeb, Former Deputy Chief, DOJ Capitol Siege Section

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Episode Overview

This episode examines the fallout and significance of President Trump's sweeping day-one pardons and commutations for nearly all individuals prosecuted for the January 6th Capitol riot. Roger Parloff interviews Alexis Loeb, who played a key role in investigating and prosecuting the cases from the DOJ’s Capitol Siege Section. The discussion covers the effects of the blanket pardons, their implications for the rule of law and public safety, and the challenges faced by officers, prosecutors, and the judiciary.

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Key Discussion Points & Insights

1. The Scope and Significance of the Pardons

• Scale: Nearly 1,600 defendants prosecuted for the Capitol attack were pardoned or had sentences commuted on President Trump’s first day back in office.
• Controversy: Trump described these prosecutions as a "grave national injustice."
• Mechanics: 14 individuals received sentence commutations (mainly those charged, but not necessarily convicted, of seditious conspiracy), while the vast majority received full pardons. The President also directed the Attorney General to dismiss about 300 pending indictments.

Notable Quote

"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."
— Alexis Loeb (07:43)

2. Impact on Victims and Rule of Law

• Victims: The pardons are described as a "blow to the officers" who defended the Capitol, invalidating their sacrifices and their repeated, traumatic testimonies.
• Legal Process: The guest highlights that the cases were handled by career prosecutors and judges of both parties, emphasizing the apolitical nature of the prosecutions.
• Message Sent: Loeb warns the pardons "send a message that it's okay to commit violence if you’re committing violence on behalf of the right person"—a threat to the rule of law.

Notable Quotes

"The pardons 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."
— Alexis Loeb (09:07)

"The pardons send a message that it's okay to commit violence if you're committing violence on behalf of the right person."
— Alexis Loeb (10:25)

3. Factual Record Remains

• Durable Evidence: Even if convictions are erased, extensive factual records—including sentencing memos and criminal complaints—persist and are accessible to the public.

Notable Quotes

"Even if the verdicts are erased and the sentences are commuted, that factual record will be there."
— Alexis Loeb (08:16)

4. Reactions to Charges of Political Bias & 'Garbage Trials'

• Due Process Defended: Loeb rebuts vice presidential and defense attorney claims of biased or unfair trials, detailing extensive jury selection procedures and adherence to due process.
• Juror Selection: Judges scrutinized jurors’ biases; defense had more peremptory challenges.
• Comparisons to Watergate: Precedents support trying politically charged cases in D.C. if a robust process is followed.

Notable Quotes

"It seems completely contrary to the facts on the ground where the defendants did get due process."
— Alexis Loeb (17:44)

"Both sides had peremptory challenges... in the federal criminal system, the defense has more peremptory challenges than the prosecution does."
— Alexis Loeb (21:00)

5. Reconciliation – One-Sided or Possible?

• Lack of Contrition: While the proclamation claims to initiate reconciliation, Loeb states true reconciliation requires acknowledgment of wrongdoing—missing here.
• Future Risks: She expresses concern for public safety, especially from violent offenders and organized groups who may regroup.

Notable Quote

"It seems difficult to see how there will be a process of reconciliation when it appears to be entirely one sided... I don't see any of that happening here."
— Alexis Loeb (22:16)

6. Potential for Retribution and Public Safety Concerns

• Comments from Pardoned Offenders: Noting Enrique Tarrio’s post-release threats, Loeb says retribution is antithetical to true reconciliation. She expresses worry for police, witnesses, and public safety if violent individuals reoffend.
• Focus of Prosecutions: Loeb stresses not all participants or Trump supporters were prosecuted—only those who committed crimes, especially violence or conspiracy.

Notable Quotes

"In terms of retribution... 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."
— Alexis Loeb (32:15)

7. DOJ Discretion and Charging Decisions

• Prosecution Limits: Many people who trespassed outside did not face charges. Around 400 cases were declined, showing the DOJ did not indiscriminately prosecute all Trump supporters.
• Evidence Challenges: Convictions required proof the individual knew they were in a restricted area, and in some early cases, judges acquitted due to insufficient evidence.

Notable Quotes

"The department did not charge everyone who was at the Capitol... Of course, there were thousands of Trump supporters who attended the rally at the Ellipse, and they weren't charged either."
— Alexis Loeb (37:29)

8. Specific Prosecutions: Proud Boys and 1512 Obstruction

• Proud Boys Trials: Loeb details her prosecution of Christopher Worrell and Daniel Scott (aka “Milkshake”), underlining the violence inflicted and how tactical use of pepper gel had severe consequences for officers.
• Supreme Court Issues: She also prosecuted Joseph Fisher, associated with the controversial 1512 obstruction charge, later overturned by the Supreme Court.

Notable Quotes

"Mr. Scott kind of rushed forward, and he's not small. He rushed forward and essentially body slammed two officers."
— Alexis Loeb (41:49)

"[The officer] used the phrase 'lava tipped spears being poked into your eyes'... that just painted a very vivid picture."
— Alexis Loeb (45:03)

9. Historical Break with Pardon Norms

• Unprecedented: The blanket pardons and the directive to dismiss pending indictments are historically and procedurally unprecedented, especially for politically connected prosecutions.

Notable Quotes

"I personally cannot remember seeing this before, let alone then when you start to talk about the scale of this and the sweeping nature of it."
— Alexis Loeb (35:15)

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Memorable Moments & Timestamps

• Lasting Impact of DOJ Work : 07:43–08:18
• Effects on Victims and Rule of Law : 09:07–10:25
• Factual Record’s Importance : 16:01–16:56
• Rebuttal of Political Prosecution Narrative : 19:25–21:05
• Challenges to the Concept of Reconciliation : 22:16–23:20
• Discussing Retribution Concerns & Public Opinion : 31:24–32:42
• Examples of DOJ's Discretion : 36:56–38:35
• Details of Proud Boys Prosecutions : 41:13–45:11
• The Supreme Court and 1512 Obstruction : 47:32–48:47

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Closing Reflections

Loeb concludes by emphasizing her pride in the career public service of DOJ and FBI, highlighting the “incredible, unprecedented factual record” these prosecutions have created as a testament to what happened on January 6 and as a resource for future understanding.

Notable Quote

“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 proven in court.”
— Alexis Loeb (49:13)

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Summary prepared for listeners interested in understanding the legal, political, and social ramifications of President Trump’s blanket pardons for January 6th defendants, and the perspective of the DOJ officials who handled those prosecutions.

Transcript

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[Marissa Wong]

I'm Marissa Wong, intern at Lawfair, with an episode from the Lawfair archive for May 23, 2026. On May 20, two officers who defended the Capitol on January 6 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 23, 2025, in which Roger Parloff sat down with Alexis Loeb, the former deputy chief of the Department of Justice's Capitol Siege section, to discuss President Trump's blanket pardons 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 pardons, and more.

[Roger Parloff]

It's the Lawfare podcast. I'm Roger Parloff, senior editor at Lawfare, and I'm with Alexis Loeb, who was deputy chief of the January 6th Capitol siege prosecutions.

[Alexis Loeb]

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, again, I hope they take this opportunity to have a real second chance and live the rest of their lives differently.

[Roger Parloff]

Today we're talking about the nearly 1600 defendants prosecuted by her unit and Trump's day one pardons and commutations of basically

[Interviewer (possibly a Lawfare host)]

every single one of those individuals.

[Roger Parloff]

So, Alexis, you were, until October, deputy chief of the Capitol Siege section of

[Interviewer (possibly a Lawfare host)]

the U.S. attorney's office for Washington, D.C. the unit that prosecuted all the crimes arising from the riot on January 6, 2021, and on day one of his second term, President Trump wiped out all of your work, basically, and he referred

[Roger Parloff]

to it as a grave national injustice

[Interviewer (possibly a Lawfare host)]

perpetrated upon the American people over the past four years. You care to comment?

[Alexis Loeb]

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

[Alexis Loeb (continuation)]

no longer with the Department of Justice.

[Alexis Loeb]

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. The government filed sentencing memos that could span 20 pages detailing that individual's conduct. So even if the verdicts are erased and the sentences are commuted, that factual

[Alexis Loeb (continuation)]

record will be there.

[Alexis Loeb]

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 pardons were disturbing on multiple levels. And that's not because I feel like it was wasted effort on my part

[Alexis Loeb (continuation)]

or the department's part.

[Alexis Loeb]

I have no regrets about the work I did, and I'm very proud of

[Alexis Loeb (continuation)]

the work that others did.

[Alexis Loeb]

But the pardons are disturbing for a few different reasons, which I'd be happy to go into.

[Interviewer (possibly a Lawfare host)]

Sure. Please do.

[Alexis Loeb]

First of all, the Pardons 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 pardons 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 at these trials, sometimes for some officers in trial and trial after trial, and those officers relived minute by minute what that day

[Alexis Loeb (continuation)]

was like for them.

[Alexis Loeb]

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 beyond the officer victims piece of it. Of course, the pardons undermine the rule of law. This was an attack on the peaceful transfer of power. The pardons 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 pardons all make us less safe today. They make America less safe today. You know, the pardons 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, when politics did come up, I can just say that people of all different political persuasions work 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.

[Interviewer (possibly a Lawfare host)]

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?

[Alexis Loeb]

On January 6th I was an 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 6, 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

[Alexis Loeb (continuation)]

a month after the attack.

[Interviewer (possibly a Lawfare host)]

And then you came out to D.C. and were you seconded to the U.S. attorney's office here?

[Alexis Loeb]

Exactly right. For about the next three and a half years, I was what we would

[Alexis Loeb (continuation)]

call detailed to the U.S. attorney's office

[Roger Parloff]

in D.C. and that U.S. attorney was

[Interviewer (possibly a Lawfare host)]

a Trump appointee at that point.

[Alexis Loeb]

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.

[Roger Parloff]

And I want to address that part

[Interviewer (possibly a Lawfare host)]

of his proclamation, Trump's proclamation that called this effort a grave national injustice perpetrated upon the American people over the past four years.

[Roger Parloff]

That's an attack on the prosecutors.

[Interviewer (possibly a Lawfare host)]

It's also, and you've, you've explained who they were.

[Roger Parloff]

I regard that as an attack on

[Interviewer (possibly a Lawfare host)]

the judges as well. Tell us about the judges handling these cases.

[Alexis Loeb]

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

[Alexis Loeb (continuation)]

for their crimes on January 6th.

[Alexis Loeb]

And in fact, many of the defendants opted to have their case tried by judges. So judges were the ones rendering verdicts

[Alexis Loeb (continuation)]

in many of the, in many of the cases.

[Alexis Loeb]

You know, one type of claim that is kind of commonly aired about the prosecutions is, well, what, 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 in broad daylight was just unmatched.

[Roger Parloff]

And incidentally, I wrote an article fairly early on.

[Interviewer (possibly a Lawfare host)]

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't vouch that those numbers, I haven't done it again since then.

[Alexis Loeb]

And Roger, for me, that raises another noteworthy part of the pardons, which is what are they actually erasing? And one of the things they're actually erasing are the verdicts. And the verdicts are the moments when juries of ordinary citizens and judges who

[Alexis Loeb (continuation)]

have, as we've been talking about, were

[Alexis Loeb]

appointed by both parties kind of pronounced this is the truth of what's happened.

[Alexis Loeb (continuation)]

The government has proven its case beyond a reasonable doubt.

[Alexis Loeb]

So I think that is another difficult

[Alexis Loeb (continuation)]

aspect of the pardons, is that it's

[Alexis Loeb]

this attempt to wash away a moment of truth telling so that then what's

[Alexis Loeb (continuation)]

left are the arguments on both sides.

[Alexis Loeb]

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,

[Alexis Loeb (continuation)]

those verdicts, the voice that what is

[Alexis Loeb]

lost are the voices of ordinary citizens in the process and also the judges.

[Roger Parloff]

Vice President Vance, you know, as recently

[Interviewer (possibly a Lawfare host)]

as January 12 had mentioned that obviously those who committed violence shouldn't be pardoned. And then there was some negative feedback. And Kyle Cheney writes about this in Politico. And then shortly thereafter, he began to backtrack and he said, I assure you

[Roger Parloff]

we care about the people unjustly locked up.

[Interviewer (possibly a Lawfare host)]

Yes.

[Roger Parloff]

That includes people provoked.

[Interviewer (possibly a Lawfare host)]

That includes people who got a garbage trial. How does that make you feel when the vice president describes these as garbage trials?

[Alexis Loeb]

It seems completely contrary to the facts on the ground where the defendants did get due process. And, you know, 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 pretrial, a judge had to find by clear and convincing evidence that they were a danger to the community or

[Alexis Loeb (continuation)]

by a preponderance that they were a risk of flight.

[Alexis Loeb]

And that defendant would have multiple levels

[Alexis Loeb (continuation)]

of appellate rights, for example.

[Alexis Loeb]

And One of the D.C. circuit's early decisions in the January 6th cases actually kind of circumscribed and set forth guidance about pretrial detention, particularly in the January 6th context. And then the, the department, of course,

[Alexis Loeb (continuation)]

followed the, followed the appellate court's guidance.

[Alexis Loeb]

So it just doesn't ring true at all to anyone who has actually seen these trials, seen the amount of evidence,

[Alexis Loeb (continuation)]

read the filings, and seen these cases unfold.

[Roger Parloff]

Yeah, I think that some people that

[Interviewer (possibly a Lawfare host)]

are out there and, you know, somewhat, with some justification, might say, well, D.C. was, is an unusual jurisdiction. More than 90% of its residents voted against Trump in 2016 and in 2020 and also in 2024.

[Roger Parloff]

In fact, what could you tell them

[Interviewer (possibly a Lawfare host)]

is were, were these juries biased or what would you tell them about that?

[Alexis Loeb]

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 D.C. circuit found that when addressing the issue of whether trials related to Watergate could go

[Alexis Loeb (continuation)]

ahead in the District of Columbia, where, of course, many people had strong feelings about that.

[Alexis Loeb]

And the line of reasoning from those cases that continued through to the January

[Alexis Loeb (continuation)]

6th cases, including in a recent D.C. circuit opinion in the Webster case, is that this is really what voir dire is for.

[Alexis Loeb]

And sometimes the judges would spend days picking a jury, examining one by one, each juror's biases and feelings about January 6, their connections to the Capitol, their feelings about the defendants, to make sure

[Alexis Loeb (continuation)]

that these were jurors who could set

[Alexis Loeb]

aside their feelings or set aside, if, assuming that the juror did have some sort of preconceived notion about January 6,

[Alexis Loeb (continuation)]

that the juror could decide the case based on the evidence, the lawyers from

[Alexis Loeb]

both sides had the chance to ask follow up questions. And then in addition to, 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 peremptory challenges where they basically have discretion to remove jurors. And in the federal criminal system, the

[Alexis Loeb (continuation)]

defense has more peremptory challenges than the prosecution does.

[Alexis Loeb]

And Roger, if I could just return to a point you'd made earlier, the

[Alexis Loeb (continuation)]

idea that the claim that many of

[Alexis Loeb]

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 the elements of that defense. And so defendants were able 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

[Alexis Loeb (continuation)]

first aggressors here in those trials. And I think they found that it was the defendants.

[Roger Parloff]

Also in the president's pardon proclamation, he said that these pardons would begin a process of reconciliation. Are you optimistic that these pardons will

[Interviewer (possibly a Lawfare host)]

begin a process of reconciliation?

[Alexis Loeb]

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 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 live productive, peaceful lives. But it's hard to see how this kind of one sided pardons without any recognition of the harm to the country

[Alexis Loeb (continuation)]

really represents a true reconciliation process.

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[Roger Parloff]

One of the pardoned

[Interviewer (possibly a Lawfare host)]

defendants, Enrique Tarrio, who was head of the Proud Boys at the time after his release, I think maybe the 21st of January, was speaking to out being interviewed by Alex Jones and he said

[Roger Parloff]

they didn't care about the evidence, they

[Interviewer (possibly a Lawfare host)]

cared about putting Trump supporters in prison. Well, now it's our turn. Now it's our turn.

[Roger Parloff]

I'm happy that the President's focusing not on retribution and focusing on success.

[Interviewer (possibly a Lawfare host)]

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?

[Alexis Loeb]

I would agree that that does not sound like reconciliation to me either. And 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 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. And if there is a desire to have a narrative of reconciliation, of course retribution or responding with prosecutions or investigations

[Alexis Loeb (continuation)]

would be completely antithetical to that.

[Alexis Loeb]

And I'm not a politician, nor am I a mind reader, but from what I've read, it does seem like the

[Alexis Loeb (continuation)]

pardons, particularly for those who assaulted police, have been Deeply unpopular.

[Alexis Loeb]

So I would have to think that

[Alexis Loeb (continuation)]

an effort that continues to keep the

[Alexis Loeb]

focus on that and targets people who were trying to protect police officers or

[Alexis Loeb (continuation)]

the police officers themselves, would be deeply unpopular as well.

[Roger Parloff]

The mechanics of the proclamation were a little unusual.

[Interviewer (possibly a Lawfare host)]

14 people got commutations and the rest got pardons. And it wasn't entirely clear to me what thinking went into that. The 14 were.

[Roger Parloff]

Were people that had been charged with

[Interviewer (possibly a Lawfare host)]

seditious conspiracy, but not necessarily convicted. I don't know if you've looked this closely, but people like Tom Caldwell, who was acquitted of seditious conspiracy and sentenced to 53 days time served, got a commutation. And Enrique's Tarrio, who was convicted and got 22 years, he got a full pardon. Am I missing something?

[Alexis Loeb]

No. Enrique Tarrio did seem absent from the

[Alexis Loeb (continuation)]

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.

[Interviewer (possibly a Lawfare host)]

Yeah.

[Roger Parloff]

There was one other part of the

[Interviewer (possibly a Lawfare host)]

proclamation that is worth mentioning.

[Roger Parloff]

The commutations and the pardons go to

[Interviewer (possibly a Lawfare host)]

people that have been convicted.

[Roger Parloff]

Then he goes on and he says he directs the Attorney General to pursue dismissal with prejudice of all pending indictments.

[Interviewer (possibly a Lawfare host)]

Pending indictments. So these are cases where you haven't had. Either you haven't had a culpability, you haven't had a verdict, or you haven't had a sentence. And there are about three. The DOJ previously said there were about 300 of these, 180 of which involved either assaulting or impeding police officers.

[Roger Parloff]

Now, I can't remember since Watergate, a

[Interviewer (possibly a Lawfare host)]

president ever directly interfering with a prosecution, telling people to drop a prosecution?

[Roger Parloff]

I think Bill Barr directed that Mike

[Interviewer (possibly a Lawfare host)]

Flynn's prosecution be dropped, but I don't

[Roger Parloff]

think that was traced directly to Trump. Are you aware of a president directing that prosecutions be dropped, especially prosecutions that

[Interviewer (possibly a Lawfare host)]

are sort of linked to him?

[Alexis Loeb]

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

[Alexis Loeb (continuation)]

before, you know, let alone then when

[Alexis Loeb]

you start to talk about the scale

[Alexis Loeb (continuation)]

of this and the sweeping nature of

[Alexis Loeb]

it, and I'm not an expert in pardons, but traditionally, pardons have been used

[Alexis Loeb (continuation)]

for people who had often served a very long time in jail, served a significant amount of their sentence, not people who had not yet been convicted and showed remorse. Yes. Yeah, it was more of an, you

[Alexis Loeb]

know, an act of. An act of clemency, often in recognition

[Alexis Loeb (continuation)]

of remorse or rehabilitation.

[Interviewer (possibly a Lawfare host)]

Yeah. Are there cases that worry you most? Or maybe categories of case that worry you most?

[Alexis Loeb]

I don't think this will come as much of a surprise, but 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, again, I hope 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 organize again. I would say that those are the

[Alexis Loeb (continuation)]

two main categories that I. That I'm more worried about.

[Roger Parloff]

I think maybe yesterday or the day before, Trump appointed a new acting U.S.

[Interviewer (possibly a Lawfare host)]

attorney for the District of Columbia. His name is Ed Martin Jr. Is

[Roger Parloff]

that a name you're familiar with?

[Alexis Loeb]

Only from.

[Alexis Loeb (continuation)]

Only from the news reporting about it.

[Interviewer (possibly a Lawfare host)]

Okay.

[Alexis Loeb]

And if I could just clarify something I said earlier, when I said that

[Alexis Loeb (continuation)]

I was concerned about organized groups.

[Alexis Loeb]

What I mean is organized groups who

[Alexis Loeb (continuation)]

have embraced violence as part of their ideologies.

[Alexis Loeb]

So, no, I'm only familiar with Mr. Martin from the news reporting, which I think raises a point, though, in response to Mr. Tarrio'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

[Alexis Loeb (continuation)]

and the facts of those cases.

[Roger Parloff]

Okay. And just for listeners to fill them in, it's been reported that Mr. Martin

[Interviewer (possibly a Lawfare host)]

was a Stop the Steal 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.

[Roger Parloff]

And also to explain the.

[Interviewer (possibly a Lawfare host)]

The trespass, federal trespass statute, you know, literally would encompass the perimeter of the Capitol that day. You don't have. 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. Correct. Me, if I'm wrong, I think there were three cases, maybe, but almost exclusively, you had to enter the building or you committed some other crimes, and then. And then. And then you were charged.

[Roger Parloff]

And.

[Interviewer (possibly a Lawfare host)]

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.

[Alexis Loeb]

The perimeter also was not just a line 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.

[Alexis Loeb (continuation)]

There was also signage on the fencing saying area closed.

[Interviewer (possibly a Lawfare host)]

Right. And there was OC gas wafting over. And there were. There were a lot of hints.

[Alexis Loeb]

And the government had to prove in those cases that each individual knew that they didn't have permission to be where

[Alexis Loeb (continuation)]

they were and that they were there anyway. And in at least one early case,

[Alexis Loeb]

Judge McFadden found that the government hadn't proved that, and he acquitted that defendant. But in the overwhelming majority of cases,

[Alexis Loeb (continuation)]

of course, the juries and judges and

[Alexis Loeb]

defendants themselves admitted that they knew they

[Alexis Loeb (continuation)]

weren't supposed to be there.

[Alexis Loeb]

They knew it was off limits, and

[Alexis Loeb (continuation)]

they were there anyway.

[Roger Parloff]

All right, you handled some proud boy cases yourself. Can you describe any of those?

[Alexis Loeb (continuation)]

Certainly.

[Alexis Loeb]

I was one of the prosecutors who worked on the trial of an individual named Christopher Worrell and his co defendant, Daniel Scott, who actually.

[Alexis Loeb (continuation)]

Who pleaded guilty and did not go to trial.

[Roger Parloff]

Daniel Milkshake Scott, is that.

[Alexis Loeb (continuation)]

Yes, his nickname was Milkshake.

[Alexis Loeb]

Yes.

[Interviewer (possibly a Lawfare host)]

Pretty important figure, really.

[Alexis Loeb]

Yes. And what Daniel Scott admitted was really,

[Alexis Loeb (continuation)]

in one of the pivotal moments of the riot, he was a key, if not the key instigator. So.

[Alexis Loeb]

So what happened was there was a line of Capitol 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 at about 2pm that day. And Mr. Scott kind of rushed forward, and he's not small. He rushed forward and essentially body slammed two officers.

[Alexis Loeb (continuation)]

And then the crowd rushed forward behind him and up the stairs, and from there made their way in inside the

[Alexis Loeb]

building, he and Mr. Worrell. And let me be clear here, I'm just talking about. I'm talking about publicly available facts here

[Alexis Loeb (continuation)]

from Mr. Scott's plea agreement, the sentencing memoranda, and what the facts showed at trial.

[Alexis Loeb]

Mr. Worrell and Mr. Scott were both members of the proud boys from Florida. And Mr. Worrell came to the Capitol that day with pepper gel, which Is

[Alexis Loeb (continuation)]

it's like pepper spray, but the delivery

[Alexis Loeb]

mechanism is a gel and not a spray. And Mr. Worrell 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.

[Alexis Loeb (continuation)]

And he, along with several others, celebrated that assault on the police and the mob's progression forward.

[Alexis Loeb]

Mr. Worrell elected to have a bench trial. That bench trial was before Judge Lamberth, who was also an appointee of a Republican president.

[Alexis Loeb (continuation)]

Judge Lamberth convicted Mr. Worrell of all counts, including assault on the police with a dangerous and deadly weapon.

[Alexis Loeb]

Another interesting thing about Mr. Worrell's case is when you're convicted of assault with a dangerous and deadly weapon, usually upon conviction, if you aren't already in jail, you're supposed to be detained immediately. The statute doesn't give judges a lot of wiggle room. Judge Lamberth decided to let Mr. Worrell remain out pending his sentencing in a few months. And Mr. Worrell then absconded. And it took several more months before

[Alexis Loeb (continuation)]

the FBI was able to find him. And at that point, he was sentenced,

[Roger Parloff]

incidentally, and again, correct me if I'm

[Interviewer (possibly a Lawfare host)]

wrong, you mentioned that it 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?

[Alexis Loeb]

I think that does sound right. Mr. Worrell's trial, the government had a toxicologist expert testify about the effects of the effects on the cardiovascular system and the lungs and of course, the skin and the eyes. And there was also a training sergeant from the Capitol Police who testified. And part of 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.

[Alexis Loeb (continuation)]

I think at one point he used the phrase lava tipped spears being poked

[Alexis Loeb]

into your eyes, which just painted a very vivid picture. And that's in a controlled setting when, where you know, as part of a

[Alexis Loeb (continuation)]

training exercise, which just painted a vivid

[Alexis Loeb]

picture of how severe pepper spray can be for some individuals. And then you couple with that, of course, with the fact that pepper spray and pepper gel were being used in

[Alexis Loeb (continuation)]

the middle of a riot.

[Alexis Loeb]

And so it's particularly dangerous because it's being sprayed at officers who. Who are trying to defend themselves against

[Alexis Loeb (continuation)]

threats from all sides, from people throwing

[Alexis Loeb]

things at them or rushing at them. So to even if they didn't feel immense pain from the pepper spray itself, left them very vulnerable. And we saw this Another officer actually testified to a moment where some other officers got sprayed and kind of grabbed onto some of the fencing and then started to get dragged into the crowd and had to be rescued.

[Alexis Loeb (continuation)]

You.

[Interviewer (possibly a Lawfare host)]

Yeah. To be blinded in a violent mob must be a. A frightening experience. By the way, Worrell got, if I'm correct, about 10 years. And of course, he has been pardoned,

[Alexis Loeb]

and that 10 years was below what

[Alexis Loeb (continuation)]

the sentencing guidelines recommended.

[Alexis Loeb]

So he got kind of less of a sentence than what the sentencing guidelines

[Alexis Loeb (continuation)]

set would say should be the sentence

[Alexis Loeb]

for someone like him who assaults an

[Alexis Loeb (continuation)]

officer using a deadly or dangerous weapon.

[Roger Parloff]

And maybe one last detail from his

[Interviewer (possibly a Lawfare host)]

sentencing memo that lodged in my mind.

[Roger Parloff]

He had some prior convictions that I

[Interviewer (possibly a Lawfare host)]

think were too old to count in terms of the sentencing guidelines, but one of them was sort of disturbing and was mentioned 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 1512, 18 USC 1512. This was the corrupt obstruction of an official proceeding, and it was his case that the Supreme Court eventually overturned.

[Roger Parloff]

Were you blindsided by this argument? Did you see it coming?

[Interviewer (possibly a Lawfare host)]

Tell us about that.

[Alexis Loeb]

So I can't talk 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 storming the Capitol. 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 defendant's 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

[Alexis Loeb (continuation)]

language of the statute, which criminalizes whoever

[Alexis Loeb]

obstructs an official proceeding in any other

[Alexis Loeb (continuation)]

manner, the other judges had all found that it applied and had written very long, thoughtful opinions about that.

[Interviewer (possibly a Lawfare host)]

Okay, well, is there anything I haven't asked that I should have asked?

[Alexis Loeb]

I just want to say that I am enormously proud to have contributed to

[Alexis Loeb (continuation)]

the prosecution's, and I'm very proud of the work of my colleagues at the

[Alexis Loeb]

DOJ and the FBI. And it really is my hope that the incredible, unprecedented factual record that we

[Alexis Loeb (continuation)]

built will be something that people will

[Alexis Loeb]

look to for years. To come to understand what really happened

[Alexis Loeb (continuation)]

on that day as proven in court.

[Roger Parloff]

Alexis, thank you for your service and thank you for your time.

[Alexis Loeb]

Thank you very much.

[Alexis Loeb (continuation)]

Roger. Nice speaking with you.

[Roger Parloff]

The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our support supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts including Rational Security, Chatter, Allies and the Aftermath. Our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written [e-mail] the podcast is edited by Jen Pacha and your audio engineer. This episode with Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.

[Aramco Advertiser]

Seeking Pushing Optimizing Creating Learning Discovering At Aramco, we believe in harnessing the power of data to push the limits of what's possible. That's how we deliver reliable energy to millions across the world. Aramco, an integrated energy and chemicals company. Learn more about us at aramco.

[Patrick Cole]

Com.