The Department of Justice hasn’t covered itself in glory in Donald Trump’s second term. But the department happens to be correct when it says that Trump’s mass clemency and dismissal order for Jan. 6 defendants doesn’t apply to alleged pipe bomb planter Brian Cole.

Before the DOJ filed its opposition to that effect on Friday, I explained a simple reason why Cole’s case doesn’t qualify. 

That’s because Trump’s Jan. 20, 2025, proclamation granted relief to three categories of people, and Cole, who wasn’t charged until December 2025, isn’t in any of them. 

First, it commuted a list of people’s sentences to time served, which didn’t include Cole — indeed, it couldn’t include Cole, because he hadn’t been charged yet, much less convicted.

Second, it pardoned “all other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021.” Again, Cole hadn’t been convicted, so he wasn’t an “individual convicted.” 

And third, it directed the attorney general to drop “all pending indictments against individuals for their conduct related to the events at or near the United States Capitol on January 6, 2021.” Because Cole did not have a pending case at that point, it couldn’t have applied to him.

On Friday, the DOJ made the same temporal observation in its opposition filing. It said that Cole “ignores that the proclamation expressly limited relief to individuals who had been ‘convicted of,’ or had a ‘pending indictment’ for, offenses related to the events at or near the United States Capitol on January 6. On January 20, 2025, the defendant belonged to neither category, and so the proclamation has no bearing on this case.”

Federal prosecutors went on to argue in their opposition that Cole’s alleged conduct isn’t “related to” events at or near the United States Capitol “on January 6,” as the proclamation requires. They also argued that their position on the proclamation is entitled to deference in court.  

“Any one of these independent grounds is sufficient to deny the motion. The Court should rely on all three,” they wrote to U.S. District Judge Amir Ali, the Biden-appointed judge who’s presiding over the case in Washington, D.C. 

The timing factor seems to be the clearest — and cleanest — grounds on which the courts could reject Cole’s motion, but it remains to be seen what the judge will decide and whether Cole will attempt to appeal if he loses. 

Cole argued in his motion to dismiss that his prosecution “is exactly the kind of case” that the Jan. 6 pardon was made for.

Quoting part of the pardon’s text, he said there’s “no serious dispute that the government itself, and the political branches more broadly, have consistently treated the alleged conduct here as part of the ‘events … at or near the United States Capitol on January 6, 2021.’” He cited the Justice Department’s claims that he drove to D.C. “to attend a protest concerning the outcome of the 2020 election” to support Trump, and that he chose to plant “bombmaking components … at the headquarters of the nation’s two major political parties in downtown Washington, D.C., on the eve of the January 6 certification of the electoral vote.” 

Of course, putting the important timing issue aside, if Cole is correct that his prosecution is exactly the sort of case that Trump wanted to pardon, then the president can easily clear up any confusion by issuing him one directly now.  

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