Updated November 13, 2024 at 16:30 PM ET
Morning Edition is diving into promises President-elect Donald Trump said he would fulfill in his second term. In the first part, NPR's Leila Fadel asks legal scholar Kim Wehle about Trump's promise to pardon Jan. 6 attackers and how far that power can go.
What Trump said about pardoning Jan. 6 rioters and special counsel Jack Smith
The president-elect has said on the campaign trail and social media that one of the first acts of his second term would be to free hundreds of people convicted of attacking the U.S. Capitol on Jan. 6, 2021 as Congress was certifying the 2020 presidential election. More than 1,500 people have been charged with crimes connected to the attack.
"I am inclined to pardon many of them. I can't say for every single one because a couple of them, probably, they got out of control," Trump said at a May 11, 2023 CNN Town Hall. Later on he added "I would say it will be a large portion of them and it would be early on."
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Trump also said he would fire special counsel Jack Smith "within two seconds" of returning to the White House. Smith is currently winding down two cases the Department of Justice brought against Trump: one about his attempts to hold onto power in 2020 that culminated in the Jan. 6 attack and the other about his handling of classified documents at his Mar-a-Lago resort.
Trump's pardoning power has wide-ranging implications
According to legal scholar Wehle, the Constitution gives the President the power to grant reprieves and pardons, and it puts no express limits on a pardon.
Wehle, a professor at the University of Baltimore Law School and the author of Pardon Power: How The Pardon System Works—And Why, said that while Supreme Court case law puts some constraints on the pardoning power, "there is no law that would limit Donald Trump's ability to pardon the people who participated in the Jan. 6 insurrection and ended up embroiled in the criminal justice system," she added.
Beyond that, Wehle said that his pardoning power paired with the Supreme Court's decision earlier this year to grant immunity for official presidential actions, is "sort of a recipe for, you know, a massive criminal enterprise in the White House."
Wehle said Trump could direct people in administration to commit crimes on his behalf and pardon them after the fact.
"The rules are now lifted. And this is a president who has promised with vitriol to prosecute and go after people who who he believes have, you know, prosecuted him in unfair ways," Wehle said. "So I think we can take him at his word, or at least we should be prepared for that."
What the Trump camp says
Trump spokesperson Karoline Leavitt responded to NPR's request for comment with the following statement:
"The American people re-elected President Trump by a resounding margin giving him a mandate to implement the promises he made on the campaign trail. He will deliver."
NPR has previously asked the Trump campaign if the President-elect would pardon Jan. 6 rioters convicted of violent crimes or only those convicted of nonviolent offenses. The campaign did not respond.
Trump's win changed the landscape for these legal fights
Trump's resounding win on Election Day was met with cheers by supporters who continue to believe the 2020 election was stolen, despite no evidence ever surfacing to support those claims.
Many convicted in the attack are likely expecting to be pardoned for actions they took on the day when about 140 law enforcement officers were injured and millions of dollars worth of damage were done to the Capitol.
As for the two federal cases still pending against Trump, both could be gone before Inauguration Day early next year. A DOJ attorney concluded in 2000 that sitting presidents cannot be indicted or prosecuted because that would undermine the capacity of the presidency.
Smith, who brought both cases against Trump, is planning to finish his work and leave his post before Trump takes office in January, The New York Times reports.
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