Why Joe Biden Left off Jack Smith from his List of Pardons
Among the flurry of last-minute pardons issued by Joe Biden in the final moments of his presidency Monday, a group of names was conspicuously absent: prosecutors and judges who have sought to apply the law to Donald Trump.
Trump has frequently mused about seeking revenge on prosecutors like special counsel Jack Smith, who led the two federal criminal cases against Trump, and Manhattan District Attorney Alvin Bragg, who brought the New York hush money case that ended in Trump’s conviction. Trump has amplified calls for Smith to be thrown in prison and even said he should be “thrown out of the country.” Trump has similarly said “there is a case to be made” that Bragg should be “prosecuted.”
Neither was named by Biden on Monday as the recipient of a pardon, even as the outgoing president moved to protect other prominent officials who have sparked Trump’s ire.
Also left empty-handed were the judges who oversaw Trump’s numerous criminal and civil proceedings. Trump has railed against many of those judges and suggested they should be punished. For instance, he has derided Justice Juan Merchan, the New York trial judge who presided over the hush money case, as “corrupt.” And Trump has said Justice Arthur Engoron, another New York state judge who imposed a half-billion dollar judgment on Trump for civil business fraud, should be “arrested.”
None of them had said publicly that they wanted a pardon, and it’s not clear any of them would have accepted one. But some top Democrats, like Rep. Jim Clyburn of South Carolina, had endorsed the notion of preemptively pardoning prosecutors, particularly Smith.
One reason Biden and his legal advisers may have eschewed pardons for prosecutors and judges is that they may have concluded that pardon protection was unnecessary in light of long-standing immunity principles for certain officials in the judicial system. The Supreme Court has held that prosecutors and judges have broad immunity for anything they do in their official capacities.
Still, the absence of prosecutors and judges on Biden’s list of pardons was notable because he did issue a slew of preemptive pardons to other public officials on whom Trump has vowed to seek revenge, including former public health official Anthony Fauci and former Chair of the Joint Chiefs of Staff Mark Milley, as well as the members and staff of the House special committee that investigated the Jan. 6, 2021, insurrection.
Biden also issued pardons to officers from Washington’s Metropolitan Police Department and the U.S. Capitol Police who testified before the committee.
And he granted sweeping pardons to five members of his own family for any nonviolent crimes they may have committed over the past decade.
