The sunsetting of the 46th president’s term brings into focus the question of whether President Biden will pardon Special Counsel Jack Smith for his prosecution of President Trump.

Mr. Biden’s pardon power — one of the most expansive powers vested in a president — will expire the moment that Trump takes the oath of office in 17 days. Mr. Biden has already commuted the sentences of dozens of inmates on death row and issued a stunningly broad pardon to his son, Hunter.

Could Mr. Smith be another recipient of presidential mercy, now that his two criminal cases against Trump have been dismissed following the president-elect’s victory over Vice President Harris? One of Mr. Biden’s staunchest allies, Congressman Jim Clyburn, told CNN last month that “Jack Smith is on my list” for a pardon.

Mr. Biden is reportedly incensed at Mr. Smith’s boss, Attorney General Garland, and regrets having selected him as the nation’s top law enforcement official. The root of the ire appears to be Mr. Garland’s tardiness in appointing Mr. Smith, as well as how Mr. Garland’s Department of Justice pursued the prosecutions of Hunter Biden. Mr. Smith, though, was responsible for neither of those decisions that allegedly stirred the president’s ire.   

The president-elect has threatened retribution against the special counsel. He reposted a message to Truth Social that declared that Mr. Smith “should be prosecuted for election interference & prosecutorial misconduct” and called him a “career criminal.” He has also endorsed the talk show host Mark Levin’s position that “Jack Smith must go to prison.” In addition, he told a radio show that “Jack Smith should be considered mentally deranged, and he should be thrown out of the country.”

Trump told the radio host Hugh Hewitt that he would fire Mr. Smith “within two seconds” of taking office, and the special counsel is reportedly planning to resign before January 20. That does not mean, though, that the special counsel will be clear of danger  — from Trump’s Department of Justice or a Congress controlled by Republicans, many of whom believe the president-elect to have been prosecuted unfairly. 

The chairman of the House Oversight Committee, Jim Jordan, told CNN after the election that Republican lawmakers are “not taking anything off the table” with respect to summoning Mr. Smith to testify. He and Congressman Barry Loudermilk have sent a letter to Mr. Smith requesting that he “preserve all existing and future records and materials related to the Office of Special Counsel’s investigations and prosecutions of President Trump.”

While the House of Representatives cannot itself prosecute anyone — that would be a violation of the constitutional prohibition on bills of attainder — it can make criminal referrals to the DOJ. That was the tact taken by the House January 6 Committee, which recommended the handing up of criminal charges against the 45th president and others for alleged election interference. That committee’s work made its way into Mr. Smith’s criminal indictment.

Trump has at times appeared to waver on his intentions with respect to Mr. Smith. Asked on NBC News’s “Meet the Press” earlier this month about whether he would instruct his nominee for attorney general, Pam Bondi, to prosecute Mr. Smith, he answered: “I want her to do what she wants to do. I’m not going to instruct her to do it, no.” He did, though, call Mr. Smith “corrupt.”

Others in Trump’s orbit have not been so coy. A lawyer advising his transition team, Mike Davis — he calls himself the president-elect’s “viceroy” — declared on X that “Jack Smith and his office must face severe legal, political, and financial consequences for their blatant lawfare and election interference.” One of those consequences, the former law clerk to Justice Neil Gorsuch reckons, is a criminal charge for conspiracy against rights.

That is the same crime for which Mr. Smith charged Trump as part of his election interference case. Its origins lie in Reconstruction, and it was originally deployed against the Ku Klux Klan for working to prevent newly freed slaves from voting. That charge, though, was dismissed after the president-elect’s victory and the Department of Justice determining that there is a “categorical” ban on prosecuting a sitting president. Mr. Smith maintains the “merits” of his case still stand.

The Constitution ordains that “the President … shall have Power to grant Reprieves and Pardons for Offenses against the United States,” which courts have taken to mean federal offenses like the ones Mr. Smith laid to the 45th president. If Mr. Biden were to seek to craft a pardon to protect Mr. Smith, he could ensure that it covers all possible federal crimes beginning on November 18, 2023, when Mr. Smith was appointed special counsel. That came two days after Trump declared his intention to pursue a second term.