Welcome back, Deadline: Legal Newsletter readers. The first week of Donald Trump’s second term is in the books. The 47th president took office Monday afternoon, as the split screen of Joe Biden’s final hours and Trump’s first cemented the politicians’ respective notions of justice through their clemency grants. And the new Trump government fired its opening salvos on immigration and more, with legal challenges already brewing in court.
Biden went out in a blaze of pardons, granting preemptive clemency to potential Trump targets like Jan. 6 committee members and officers who testified before the committee. The outgoing president likewise pardoned his family members out of retribution fears. And in a more typical sort of controversial last-minute move, the Democrat commuted the life sentence of 80-year-old Native American activist Leonard Peltier, who has maintained his innocence while serving time for the 1975 killings of two FBI agents. “This commutation will enable Mr. Peltier to spend his remaining days in home confinement but will not pardon him for his underlying crimes,” Biden said.
Trump forged his own pardon path not long after Chief Justice John Roberts swore him in and Justice Brett Kavanaugh swore in Vice President JD Vance (second lady Usha Vance clerked for both GOP-appointed jurists). As he did four years ago, Trump pledged to “preserve, protect and defend” the Constitution. Notably, the presidential oath didn’t require him to state “support” for the nation’s founding document. Last year, Trump’s lawyers stressed the distinction in litigation over his ballot eligibility to bolster his claim that he wasn’t subject to the Constitution’s ban on oath-breaking insurrectionists taking office.
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Of course, the Roberts Court kept him on the ballot, and he won the 2024 election.
Of course, the Roberts Court kept him on the ballot, and he won the 2024 election. Aided by the court’s ballot eligibility and immunity rulings, Trump avoided a trial — and thus possible punishment — over the alleged criminal plot to hold power despite losing the 2020 election. And his political win enabled him to quickly pardon nearly all the convicted Jan. 6 defendants.
Pardon recipients included hundreds of people who attacked law enforcement, according to a Just Security analysis. That means Trump’s clemency decision did not heed the distinction Vance made earlier this month when he said that “if you committed violence on that day, obviously you shouldn’t be pardoned.” Former officer Michael Fanone, who defended the Capitol on Jan. 6, said on “Deadline: White House” that “the American people own this decision. You chose this. You elected this man as president. And now, you are responsible for these pardons and the inevitable violence that will occur because these individuals and many more like them have been emboldened.” Trump also ordered the Justice Department to dismiss pending Jan. 6 cases. That led federal judges in Washington to speak out against Trump’s claim that his blanket clemency ended a “grave national injustice” and began “a process of national reconciliation.” Judge Beryl Howell wrote that such reconciliation can’t happen “when poor losers, whose preferred candidate loses an election, are glorified for disrupting a constitutionally mandated proceeding in Congress and doing so with impunity.” The test will be whether the Supreme Court agrees. The Jan. 6 pardons weren’t Trump’s only legal provocation in his first days back in office. They weren’t even his only pardons. Signed as part of a slew of executive orders, his bid to subvert birthright citizenship was quickly halted in court. U.S. District Judge John Coughenour, a Ronald Reagan appointee in Washington state, blocked the order for now and called it “blatantly unconstitutional.” The judge, who’s been on the bench for decades, said he couldn’t recall “another case where the question presented is as clear as this one.” With this pivotal constitutional question and others to come in this second Trump term, the test will be whether the Supreme Court agrees. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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