How do state sovereign prosecutions interact with federal pardons in January 6 cases?
Executive summary
State prosecutions remain legally independent of federal pardons because of the dual-sovereignty doctrine: a presidential pardon covers federal offenses only and generally cannot extinguish state criminal liability for the same conduct [1] [2]. Practically, however, jurisdictional limits, evidentiary challenges and political resistance have so far constrained state attempts to pick up prosecutions after the mass federal clemencies for January 6 defendants [3] [4].
1. Legal framework: dual sovereignty and the limits of the presidential pardon
Under longstanding doctrine, the United States and each state are separate sovereigns, so the president’s constitutional power to pardon applies only to “offenses against the United States,” not to state-law crimes, meaning states can prosecute similar conduct even after a federal conviction has been pardoned [1] [2]. Legal scholarship reviewed by Lawfare concludes that even when a state case is removed to or heard in federal court for procedural reasons, that does not convert a state substantive offense into a federal one that the president may pardon [1]. That distinction is critical because it preserves state authority to pursue charges like trespass, assault, or state-level conspiracy arising from the same January 6 conduct that was forgiven federally [2].
2. Jurisdictional and evidentiary hurdles that make state prosecutions difficult
Experts and reporting note substantial practical obstacles for states: prosecutors must show the criminal conduct occurred within the state’s jurisdiction or that in-state planning or overt acts give a state law hook, and many state statutes vary in whether they fit the facts of events that occurred primarily in Washington, D.C. [3] [2]. In addition, doctrines against double jeopardy do not bar separate sovereign prosecutions, but other protections and the logistics of re-litigating complex January 6 evidence—much of which was gathered and prosecuted federally—create additional barriers for states considering new cases [1] [2]. Reporting to date finds that, as of early 2026, no state had filed charges against any pardoned individual, underscoring those practical constraints [3].
3. The immediate aftermath: pardons, re-arrests for new crimes, and civil liabilities
The mass federal clemencies released many convicted defendants from federal sentences, but they did not shield individuals from civil suits or new state or federal charges unrelated to the conduct pardoned; several pardoned individuals have since been arrested or charged with other crimes, and Congress and watchdog groups documented dozens of post‑pardon arrests and convictions for non‑January‑6 offenses [5] [6] [3]. The White House proclamation and subsequent DOJ guidance attempted to define the scope of the pardons, and federal prosecutors and judges have been embroiled in disputes about whether particular downstream charges were covered, showing the messy line‑drawing that follows blanket clemency [7] [8].
4. Institutional friction and political dynamics shaping prosecutorial choices
The interplay of state prosecutions and federal pardons is not only legal but intensely political: federal judges who oversaw January 6 cases have publicly pushed back against sweeping pardons and resisted letting dismissals erase the factual record, while reporting shows pardoned rioters lobbying Justice Department officials and even urging actions against former prosecutors—moves that heighten institutional tensions [9] [10]. Those pressures have coincided with personnel changes inside DOJ and public claims that the pardons were an act of retribution or corrective justice, narratives that cut in opposite directions and influence whether states or localities feel empowered to act [11] [10].
5. Likely paths forward and unresolved legal questions
Given the dual‑sovereignty baseline, states retain the legal authority to prosecute, and scholar‑commentators expect that prosecutions will be pursued where there are clear in‑state ties or separate state offenses, but the approach will be selective because of evidentiary complexity and political risk [1] [2]. As of early 2026 no state prosecutions of pardoned defendants had materialized [3], leaving major open questions about whether state attorneys general will bring cases in high-profile instances, how courts will handle forum and immunity disputes, and whether political pressure from both sides will deter or accelerate state action [3] [10]. Reporting and scholarship agree that the president cannot, via federal pardon, unilaterally erase state criminal accountability, but real-world outcomes will turn on prosecutorial judgment, resource limits, and evolving litigation over jurisdiction and related constitutional claims [1] [2] [3].