Edward Kelley wanted revenge after he was arrested and accused of fighting with police and trashing the U.S. Capitol on Jan. 6, 2021. He enlisted two friends in a plot to attack the Knoxville, Tennessee, FBI field office that had investigated him. During a meeting with the friends, court records show, he told them, “with us being such a small group, we will mainly conduct recon missions and assassination missions.”
Kelley was convicted of felonies for both the Jan. 6 riot and the December 2022 plot to attack the FBI. But before he could be sentenced in either case, President Donald Trump pardoned nearly all of the 1,600 Jan. 6 defendants. His Jan. 6 case has been dismissed.
But Kelley, 36, remains in jail as federal prosecutors and a judge grapple with a legal question: How far should Trump’s pardons extend? The pardon order includes everyone “convicted of offenses related to events that occurred at or near the United States Capitol on January 6.” Kelley says his plan to kill FBI agents was related to the Capitol riot, so he should be released immediately.
“This case is unmistakenly ‘related to’ his charges in Washington, D.C. and covered by his Presidential pardon,” wrote Kelley’s lawyer, Mark E. Brown, in a motion seeking dismissal of his Tennessee convictions. Brown blamed federal prosecutors in D.C. for turning over to Kelley unredacted contact information for the FBI agents involved, who then turned up on Kelley’s hit list and testified against him in the D.C. trial.
“But for the Washington, D.C., indictment,” Brown wrote, “this case would have never been investigated, charged and prosecuted. The cases are clearly related to one another.”
Some legal experts said Kelley’s legal argument was likely to fail while acknowledging Trump’s order isn’t entirely clear.
“I read ‘related to events that occurred at or near the United States Capitol on January 6’ to mean related to the events that occurred that day,” said Samuel Morison, who formerly worked in the Justice Department’s Office of the Pardon Attorney. “I think threatening to murder an investigating agent months later is not related. It’s a completely separate crime.”
Morison said “Trump used ambiguous language” in issuing a pardon for “related” conduct. “It’s his fault for not being more specific. If he meant something different, he can pardon [Kelley] again.”
“The pardon doesn’t cover post-Jan. 6 conduct,” said Rachel Barkow, a professor of criminal law at New York University, “so the conspiracy sentencing should go forward.”
Kelley’s lawyer, on the other hand, argues Trump’s words include his client’s actions.
“It is clear from the President’s executive action,” Brown wrote, “that he intended his executive order to sweep broadly. If he had wanted it to apply to just the actions of January 6th he would have said so. Rather he styled his executive action as ‘related to’ events that occurred at or near the Capitol on January 6, 2021. Thus, Kelley is entitled to the immediate dismissal of the indictment in this court and immediate release from custody.”
Brown did not return a message seeking comment. Kelley is being held in the Blount County jail in Maryville, Tennessee, and could not be reached.
The federal prosecutors in Knoxville have not yet responded to Kelley’s motion or filed a motion to dismiss his case. A spokeswoman for the office said they could not discuss pending cases.
The U.S. attorney there, Francis “Trey” Hamilton, has stayed in his post through the transition to the Trump administration. He will wait for a successor to be named before stepping down, an office spokeswoman said.
In U.S. attorney’s offices such as in Washington, a new interim U.S. attorney was installed immediately after Trump’s inauguration and began filing motions to dismiss pending Jan. 6 cases, including Kelley’s. But there is no pending candidate for eastern Tennessee, and no one has moved to dismiss Kelley’s case there.
Kelley’s Jan. 6 case was fairly typical, including the fact that it took more than a year to arrest him. The FBI was originally tipped off to Kelley’s presence at the Capitol in March 2021, but after Kelley told agents he hadn’t gone into the Capitol, they dropped the case. Then the agents discovered video showing Kelley assaulting a Capitol Police officer from behind, tackling the officer and taking him to the ground.
More video showed Kelley was one of the first to enter the Capitol and used a piece of wood to shatter a window to help rioters enter. He then kicked through a Senate Wing door from the inside to allow more rioters inside, court records state. Kelley was arrested in May 2022 and charged with felony assault on police, civil disorder, two counts of destruction of government property and multiple trespassing misdemeanors.
As with most Jan. 6 defendants, Kelley was released pending trial. But seven months after his arrest, the FBI was at his door again. An informant had shown up at the police department in Kelley’s hometown, Maryville, Tennessee, with a printed list of 37 names, positions and some phone numbers of police and federal agents who had participated in the investigation of Kelley, court records show. The informant also provided a thumb drive with apparent video footage of the FBI search of Kelley’s home, court records show, presumably so an assassin might be able to identify them.
The informant told police, then the FBI, that Kelley had met with him and a third man to discuss “targeting federal agents,” and specifically mentioned the lead agent in his case, according to an affidavit filed in the case. When Kelley became concerned that the feds might be suspicious of him, he allegedly told the other two men, “call who you need to, and you’re going to attack their office.” Kelley also told the informant, “Once you guys have enough people … you don’t have time to train or coordinate, but every hit has to hurt. Every hit has to hurt.”
Kelley was again arrested in mid-December 2022, charged with conspiracy, retaliating against a federal official and two other felonies, and he was ordered held without bond until trial.
In his D.C. case, Kelley chose to have a bench trial in front of U.S. District Judge Colleen Kollar-Kotelly, which was held over two days last October. Kelley did not testify in his own defense. Kollar-Kotelly found Kelley not guilty of obstructing an official proceeding, but convicted him on 11 other counts including assault on police and destruction of government property. She noted that Kelley wore a distinctive helmet and goggles as he helped overwhelm police lines and tackled an officer trying to block an entrance.
Kelley was the fourth rioter into the Capitol, the judge said in her verdict order, and he was at the front of the group which confronted Officer Eugene Goodman while looking for members of Congress. Goodman, in widely seen video footage from that day, led them away from the session as it was being evacuated.
Less than two weeks after his D.C. conviction, Kelley went on trial again in Knoxville, Tennessee, for conspiring to kill FBI agents. A jury heard the case over three days in November and found Kelley guilty of conspiracy, solicitation and threats to a federal officers.
Kelley was facing two sentencings with likely prison terms and the possibility that the judges in the District and Knoxville could order them to run consecutively. But Trump issued a pardon for nearly all 1,600 Jan. 6 defendants and commutations for 14 members of the Proud Boys and Oath Keepers. The pardons do not erase a conviction, but serve to commute sentences and restore civil rights.
For defendants who had not been sentenced, Trump directed federal prosecutors to seek immediate dismissals of pending cases “for their conduct related to the events at or near the United States Capitol on January 6, 2021.” In Kelley’s D.C. case, interim U.S. attorney Ed R. Martin Jr. filed a motion to dismiss on Jan. 21.
Kollar-Kotelly granted the motion the next day, but issued an eight-page order that memorialized all of Kelley’s actions at the Capitol, noting that she “does not discern – and neither party has identified – any defect in either the legal merits of, or the factual basis for, the Government’s case that would require dismissal.” The judge acknowledged Trump’s legal right to issue pardons and added, “Dismissals of charges, pardons after convictions, and commutations of sentences will not change the truth of what happened on January 6, 2021.” She said the numerous videos, photos and trials created records that “are immutable and represent the truth, no matter how the events of January 6 are described by those charged or their allies.”