Last Monday, Donald Trump was inaugurated as president again, and marked his return to the White House with a deluge of day-one directives. Among them was a grant of clemency for people who tried to help him overthrow the 2020 presidential election: commuting the sentences of 14 people who were convicted for their role in the January 6 attack; giving full, unconditional pardons to everyone else convicted of insurrection-related offenses; ordering the release of any such persons presently incarcerated; and directing the Department of Justice to dismiss pending insurrection-related indictments.

In his proclamation, Trump celebrated the end of “a grave national injustice,” and promised that his assorted acts of clemency would “begin a process of national reconciliation.” At least one federal judge does not agree. “No national injustice occurred here, just as no outcome-determinative election fraud occurred in the 2020 presidential election,” wrote Judge Beryl Howell, a senior judge on the U.S. District Court for the District of Columbia who heard dozens of January 6 cases, in her order dismissing the indictment of two such defendants without prejudice. “No process of national reconciliation can begin when poor losers, whose preferred candidate loses an election, are glorified for disrupting a constitutionally mandated proceeding in Congress and doing so with impunity.”

Another of Trump’s priority initiatives—an executive order purporting to deny citizenship to some American-born children—has also encountered a judicial stumbling block. Judge John Coughenour described the policy as “blatantly unconstitutional” and issued a temporary restraining order last week that blocks it from going into effect. At a hearing, Coughenour expressed disbelief at the DOJ’s legal position. “I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order,” he said.

Coughenour and Howell’s refusal to play along with the Trump administration’s farce contrasts sharply with the rush often shown by legal, political, and media elites to entertain its false claims as reality and treat its crackpot legal arguments as supported by literature that does not exist. True, Coughenour’s comments at a preliminary relief hearing will likely be just a footnote in a long legal battle to come. And Howell’s hands were tied, since the Trump administration decided it wasn’t going to prosecute. But her order is a reminder that binds on one’s hands do not prevent the functioning of one’s brain. In the face of aggressive dishonesty, it is worthwhile for people in power to tell the truth.

The subjects of Howell’s order were Nicholas DeCarlo and Nicholas Ochs, two Proud Boys who admitted to throwing smoke bombs at Capitol police officers, entering restricted areas at the Capitol, and stealing plastic zip-tie restraints. “We’re not supposed to be here,” Ochs said to DeCarlo, who replied, “We’re all felons, yeah!” DeCarlo also apparently failed at his first attempt to lob a smoke grenade, saying, “Oh fuck, I just threw it without pulling the pin. Goddammit.”

Even when the federal government decides to stop prosecuting a defendant, courts may still require the government to “submit a statement of reasons and underlying factual basis, which must be substantial to justify the dismissal and not a mere conclusory statement.” Here, the government filed a one-page motion to dismiss, with a one-paragraph explanation that cited Trump’s proclamation. “The government’s cursory motion provides no factual basis for dismissal,” Howell wrote. “This Court cannot let stand the revisionist myth relayed in this presidential pronouncement.”

Howell ultimately dismissed the Nicholases’ insurrection-related indictments, but did so without prejudice. This preserves the opportunity for a future administration to prosecute DeCarlo and Ochs for their conduct at the Capitol. In other words, Howell knew that justice would be delayed, but she tried to find a way to make sure it might not be denied. 

Sometimes, the pool of possible judicial decisions doesn’t include anything affirmatively good. The options are instead making something harmful a bit less bad or harder to achieve, or calling a lie a lie a little louder. In this case, Howell basically only had her voice. But at least she used it.