President Trump has been on a pardon spree that shows no signs of slowing. In recent weeks alone, he pardoned or granted clemency to two former Republican politicians convicted of tax evasion, a reality-show couple convicted of fraud whose daughter spoke at the Republican National Convention, another tax cheat whose mother raised millions of dollars for Mr. Trump’s presidential campaigns and a far-right “constitutional” sheriff who accepted bribes for deputy credentials.
That doesn’t include others like the Jan. 6 rioters who violently attacked the Capitol (roughly 1,500 people were charged or sentenced). And it doesn’t include potential pardons — Mr. Trump said he would “take a look” at them — for two men serving federal sentences for leading a plot to kidnap Democratic Gov. Gretchen Whitmer.
American clemency is supposed to reflect mercy, reduce suffering and repair communities. But it has never quite lived up to billing: Presidents have always been accused of using the power for corrupt purposes, up to and including Joe Biden’s “pre-emptive” pardon for his son Hunter.
But President Trump has transformed the pardon practice into a menacing new frontier of presidential power. I call it “patronage pardoning”: reducing the expected penalty for loyalist misconduct by conspicuously pardoning political allies. This blunt instrument of venality and regime control is a standing public commitment to protect and reward loyalism, however criminal.
As the new U.S. Pardon Attorney Ed Martin recently put it, “No MAGA left behind.”
The defining feature of patronage pardoning is the use of clemency to make regime loyalists less responsive to the threat of criminal punishment. The more partisan and outrageous the pardons, the stronger the signal transmitted to those contemplating loyalist misconduct. President Trump’s pardons may induce people to break conventional criminal laws, but they may also induce criminal interference with official functions — through perjury, obstruction and defiance of court orders.
Healthy democracies don’t sponsor loyalty-for-protection rackets. Indeed, patronage pardoning is part of a broader Trumpist legal project that threatens the rule of law. His governance model treats law-enforcement institutions not as agents of a sovereign people but as tools of regime compliance — prosecute enemies and spare friends, as performatively as possible.
The rules-based democratic order demands a forceful institutional response — but the foundation of that order, the Constitution, makes that institutional response challenging. The presidential clemency power is broad, and it is absolute where it applies. Article II gives the president power to pardon or commute “[o]ffenses against the United States, except in cases of impeachment.” In 1866, the Supreme Court recognized an unlimited power to pardon any completed offense, even if there is no prior or pending prosecution. In 1871, it affirmed that Congress can’t interfere with that power. It has since held that clemency can be subject to presidential conditions, and that the power reaches criminal contempt. Last year, its presidential immunity opinion strongly indicated that the president cannot be prosecuted for even the most corrupt use of pardon power.
Patronage pardoning is particularly dangerous because presidents accumulate leverage over time. The president alone has the power to immunize the offending conduct, so President Trump amasses leverage with every loyalist offense committed. Misconduct begets leverage that begets more misconduct, producing a destructive feedback loop.
The predicament is easy enough to understand. Imagine officials who lie to Congress once, exposing themselves to criminal liability. One might be tempted to say that the officials don’t care about pardons, as President Trump’s Justice Department would never prosecute. But the statute of limitations for most federal crimes, including the making of false statements to Congress, is five years — so the officials still need pardons to escape prison risk. To remain in the good graces of the immunity-dispensing patron, the officials have every incentive to lie again. And new lies give the president new leverage.
That example is stylized, but the problem may not be hypothetical. President Trump already has pardon leverage over people with enormous economic and political power. Elon Musk and employees of the Department of Government Efficiency may have broken criminal laws prohibiting unauthorized access to data systems. Secretary of Defense Pete Hegseth and other national security officials may have violated the Espionage Act when they participated in a group Signal chat about U.S. airstrikes in Yemen.
The pardon power has many virtues, but the framers simply failed to anticipate how pardons fit into modern politics. They viewed impeachment and the prospect of infamy as sufficient to dissuade presidents from systematically abusing clemency. Unfortunately, contemporary political polarization disables both accountability mechanisms.
The framers miscalculated, but there are at least three legal innovations that can contain the damage.
First, because presidential clemency power covers only federal offenses, states must be able to punish certain conduct that also violates federal criminal law. State conspiracy prosecutions have unique potential, because conspirators can stand trial wherever one of them acted in furtherance of the shared plan. For example, despite the mixed results, prosecutors from Arizona, Georgia, Michigan and Wisconsin brought conspiracy charges against those who interfered with the certification of 2020 Electoral College votes.
Second, federal judges can lean on civil contempt sanctions to compel compliance from administration officials. Presidents cannot pardon civil contempt, which can carry hefty fines and jail time. The line between civil and criminal contempt is murky, but the core distinction is the sanction’s purpose. Civil contempt coerces future compliance, whereas criminal contempt punishes past defiance. Escalating daily fines create healthy incentives to comply with judicial orders, and enforcement need not rely heavily on U.S. marshals within the president’s chain of command. It is no accident that Republicans’ new budget reconciliation bill includes unprecedented restrictions on the contempt power of federal judges.
Third, state and local officials empowered to sue must be equipped and ready to pursue civil penalties for offending conduct. The president can pardon only crimes. The threat of civil liability is especially important because much of this pardon-induced criminality would occur in the District of Columbia — a jurisdiction where the president can pardon local offenses. But individually harmed plaintiffs can seek civil damages for some criminal conduct, and the locally elected attorney general’s office can sue on the public’s behalf. The District of Columbia’s office did, in fact, seek damages against those leading the Jan. 6 attacks, but resource constraints forced it to dismiss the lawsuit.
What Mr. Trump has obscured is the most recognizable function of clemency power: mercy. Joe Biden owns the record for presidential clemency and ended his time in office by commuting the sentences of 37 death row prisoners to life in prison. The founders also anticipated clemency’s statecraft function: Abraham Lincoln’s pardons for former Confederates, conditioned on oaths of allegiance; Harry Truman’s commutations for World War II conscientious objectors; and Gerald Ford’s pardon for Richard Nixon’s Watergate crimes.
But concentrated pardon power necessarily risks favoritism and self-dealing. Lincoln pardoned his Confederate sister-in-law, though she never swore the necessary Union loyalty. More recently, George H.W. Bush issued 11th-hour pardons to six officials involved in the Iran-contra scandal, all of them targets of an investigation that could have implicated Mr. Bush himself.
Nevertheless, and in ways that his predecessors did not, President Trump has made patronage pardons a centerpiece of stage-managed governance. There are ways for American institutions can respond meaningfully, but those responses require imagination, coordination and some political will.
Lee Kovarsky (@kovarsky.bsky.social) is a professor at the University of Texas School of Law.
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