Why Didn’t Biden Pardon Jack Smith? Omission Could Suggest a Departing President Dissatisfied With Prosecutor’s Pursuit of Trump

There turns out to be a notable exception to President Biden’s stunning package of pardons on his way out of office — Special Counsel Jack Smith, the man who more than any other has roused President Trump’s ire over the last year. The 46th president’s roster of pardons, which began with a remarkably broad one of his son Hunter, ballooned to include more members of the first family, and expanded to comprise Anthony Fauci, General Milley, and the members and staff of the House January 6 committee. Mr. Biden also commuted thousands of sentences, including those of 37 murderers on death row. Mr. Trump pardoned nearly all of the 1,500 January 6 defendants.While the pardon power is among the least-fettered of the presidency, Mr. Biden’s use of it — clemency for his brother James, sister Valerie, and other family members came at the last moments of his term — struck some as breathtaking. All the more surprising that the man who could be most susceptible to reprisals from the new administration, Mr. Smith, was omitted.Dr. Fauci explained that “the mere articulation of … baseless threats, and the potential that they will be acted upon, create immeasurable and intolerable distress” that justified his acceptance of the pardon despite his insistence that he has “committed no crime and there are no possible grounds for any allegation or threat of criminal investigation or prosecution of me.” The same logic could hold for Mr. Smith, who could soon find himself under scrutiny.The erstwhile special counsel earned Mr. Trump’s enmity by launching two prosecutions against the 47th president — one for election interference, and the other for the storage of classified documents at Mar-a-Lago. Mr. Smith wrote in his final report that “but for Mr. Trump’s election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”At a news conference just before the inauguration, Mr. Trump declared: “I defeated deranged Jack Smith. He’s a deranged individual. I guess he’s on his way back to the Hague” — a reference to the attorney’s past prosecuting war crimes. “And we won those cases,” the president added. “Those were the biggest ones. And the press made such a big deal out of them. But we did nothing wrong.”Mr. Trump has declared on Truth Social that Mr. Smith “should be prosecuted for election interference & prosecutorial misconduct.” The president has also called him a “career criminal.” He also reposted the radio host Mark Levin’s view that “Jack Smith must go to prison.” That was echoed when a legal consigliere to Mr. Trump, Mike Davis — he calls himself the 47th president’s “viceroy” — took to X after the election to declare that “Jack Smith and his office must face severe legal, political, and financial consequences for their blatant lawfare and election interference.” He ventures that Mr. Smith could be charged with “conspiracy against rights,” the same crime the erstwhile special counsel marshaled against Mr. Trump.It is not immediately clear how that charge — or any other — could be handed up against Mr. Smith. The chairman of the House Judiciary Committee, Jim Jordan, last spring opened an investigation into allegations that, as Mr. Jordan described it in a letter to the Department of Justice, “Special Counsel Jack Smith and his team lied to a federal court, manipulated evidence seized by the Federal Bureau of Investigation (FBI) during its raid of Mar-a-Lago, and improperly pressured a lawyer representing a defendant indicted by Smith.” If Mr. Jordan — or other Republicans in Congress — subpoena Mr. Smith, he will not be able to claim Fifth Amendment protections against self-incrimination. That is because the mandate that a person may not “be compelled in any criminal case to be a witness against himself” only applies when there is criminal jeopardy, which a pardon precludes. By withholding a pardon from Mr. Smith, Mr. Biden could have lessened the possibility of him testifying under oath — before Congress or in a court of law. While Mr. Biden’s reasons for withholding a pardon from Mr. Smith are unknown, the 46th president’s anger at the former special counsel’s boss — Attorney General Garland — has been reported. Mr. Biden, the Washington Post reports, reckons that he “should have picked someone other than Merrick Garland as attorney general, complaining about the Justice Department’s slowness under Garland in prosecuting Trump.”In April 2022, more than a year into Mr. Biden’s presidency, the White House, via a leak to the New York Times, communicated to Main Justice that Mr. Biden “believed former President Donald J. Trump was a threat to democracy and should be prosecuted” and that “he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor.” Six months later, on November 18, 2023, just two days after Mr. Trump declared his intent to retake the White House, Mr. Garland appointed Mr. Smith, starting the clock toward a criminal trial. It was not enough time, though. Mr. Smith moved with alacrity once he assumed his post — he adopted an aggressive posture to try Mr. Trump before the election — but Trump’s legal team effectively stalled the cases such that they did not reach juries.The president’s victory over Vice President Harris in November — always at the core of his defense strategy — short-circuited Mr. Smith’s cases on account of the DOJ’s “categorical” ban on prosecuting a sitting president. Mr. Smith insists that the “merits” of his election interference case against Mr. Trump are unaffected.When Mr. Trump was asked on “Meet the Press” earlier this month if he would instruct his nominee for attorney general, Pam Bondi, to prosecute Mr. Smith, the 47th president explained: “I want her to do what she wants to do. I’m not going to instruct her to do it, no.” Questioned on the matter by Senator Schiff during her confirmation hearing, Ms. Bondi retorted that he should be more worried about rising crime in California.

Why Didn’t Biden Pardon Jack Smith? Omission Could Suggest a Departing President Dissatisfied With Prosecutor’s Pursuit of Trump

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