DOJ’s new position on pardons should free dual-case Jan. 6 defendant Elias Costianes

The new leadership at the U.S. Department of Justice has decided that President Donald J. Trump’s Jan. 20 pardon declaration covers both of the criminal cases lodged against Elias Nick Costianes Jr., setting the stage for his release from federal prison eight days after he turned himself in.

The DOJ’s new position on the matter, filed at the U.S. Court of Appeals for the Fourth Circuit, could have a ripple effect to eventually free at least three other pardoned Jan. 6 defendants — Jeremy Brown, Benjamin Martin, and Daniel Ball — who are still being held in federal prisons despite the president’s pardon actions.

‘He should immediately be released from incarceration.’

“The United States agrees that the President pardoned him, he should be immediately released from custody in connection with this case, his sentence should be stayed, and this Court should resolve his motion on an expedited basis,” Assistant U.S. Attorney David Bornstein wrote in a filing. “Because the President’s pardon has mooted Mr. Costianes’s appeal, the court should also vacate his judgment of conviction.”

Even though Costianes had appealed the order to report to prison on Feb. 12, the U.S. district court refused to give him an extension. He had not yet been assigned to a prison when word came from the DOJ on his emergency motion before the U.S. Court of Appeals.

The emergency motion was filed Feb. 12 by attorneys Carolyn Stewart and Roger Roots. The DOJ filed its response in the case on Feb. 19.

“The Government agreed that Mr. Costianes’ case falls under the Presidential Pardon, and that he should immediately be released from incarceration,” Stewart wrote in a reply filing on Feb. 20.

“He respectfully requests that this Court order that the U.S. Marshals and BOP immediately release Mr. Costianes from the Northeast Ohio Corrections Center (NEOCC) where he is presently incarcerated, vacate the judgment of the district court, moot the current appeal in this Court, and remand the case to the district court with instructions for dismissal.”

The DOJ’s position on Costianes’ release was made after consultation with department leaders in Washington, D.C.

Elias Costianes Jr. (right), pictured in the U.S. Senate Gallery on Jan. 6, 2021. Photo by U.S. Department of Justice

“After consulting with the Department of Justice’s leadership, the United States has concluded that the President pardoned Mr. Costianes of the offenses in the indictment,” Bornstein wrote. “This determination by the Executive is ‘conclusive and preclusive.’”

Costianes’ Maryland case grew out of a search of his Nottingham home authorized in Washington, D.C., as part of the DOJ’s investigation of Jan. 6.

During a search of Costianes’ home and property, agents found controlled substances including liquid testosterone, cocaine, and marijuana. They also found four firearms, two of which the FBI said were not registered to Costianes.

That led to a nine-count indictment for conspiracy to possess a controlled substance with intent to distribute, three counts of use of any communication facility to facilitate a drug felony, and three counts of distribution of a controlled substance.

Costianes agreed to plead guilty to the firearms charge, and U.S. District Judge James K. Bredar sentenced him to 366 days in prison.

Costianes’ Jan. 6 case was dismissed on Jan. 21 by U.S. District Judge Richard Leon after President Trump’s pardon declaration. Costianes had been charged with six criminal offenses from his time at the U.S. Capitol on Jan. 6.

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