Trump’s Pardon Racket
The pardon power is the only authority the US Constitution places entirely in the president’s hands, immune from legislative override or judicial review. For Alexander Hamilton, who assumed that shame would restrain abuse, Donald Trump is the nightmare scenario.
Stephen Holmes
PARIS – Last week, Juan Orlando Hernández walked out of a federal prison in West Virginia a free man.
A former president of Honduras, Hernández, who once boasted that he would “stuff the drugs up the gringos’ noses,” had been sentenced to 45 years in prison for conspiring to import more than 400 tons of cocaine into the United States.
President Donald Trump announced the pardon while endorsing Hernández’s political ally, Nasry Asfura, in Honduras’s presidential election.
The juxtaposition was clarifying: clemency as geopolitical leverage, the pardon power as a tool of foreign intervention rather than domestic mercy.
The prosecution of Hernández was overseen by Emil Bove, who would later become Trump’s personal lawyer, then his acting deputy attorney general, and who now sits on the US Court of Appeals.
So, Trump has pardoned a man his own future counsel helped to convict.
The pardon power is the only authority that the US Constitution places entirely in one person’s hands, immune from legislative override or judicial review.
Alexander Hamilton, defending this arrangement in Federalist 74, understood the danger.
But he wagered that shame would restrain abuse – that a president, bearing sole blame for corrupt use of the power, would hesitate where a legislature might not.
“The sense of responsibility is always strongest,” Hamilton wrote, “in proportion as it is undivided.”
Hamilton was wrong.
He did not anticipate a shameless president.
Hamilton’s case for the pardon was political, not moral.
He barely mentioned mercy.
The power’s core purpose was emergency peace-making: “in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”
This was the rationale for Massachusetts’ offer of clemency to participants in Shays’s Rebellion, and for George Washington’s pardon of those who took part in the Whiskey Rebellion during his presidency.
The pardon was an ad hoc instrument for ending conflict after rebellion was suppressed – a discretionary tool for restoring peace when peace took priority over justice.
Crucially, Hamilton insisted that clemency must remain unpredictable.
“It would generally be impolitic beforehand,” he wrote, “to take any step which might hold out the prospect of impunity.”
A standing promise of pardons would encourage rebellion.
The power works only if potential lawbreakers cannot count on forgiveness in advance.
A Corrupted Power
Trump has inverted every element of this design.
He has transformed the pardon from an instrument for ending conflict into a weapon for stoking it, from an ad hoc exercise of discretion into a standing promise of impunity, from a tool of reconciliation into a system for rewarding loyalty.
Hamilton envisioned a president using clemency to heal divisions after insurrection; Trump pardoned the insurrectionists who attacked the US Capitol on January 6, 2021, only after returning to the presidency four years later, signaling that loyalty to him guarantees impunity.
The effects are already visible in courtrooms and law offices across the US.
“If I were any defendant now,” a former senior Department of Justice official told the Financial Times, and “I had the financial wherewithal or connections, my thought would be, maybe I’ll be convicted, but I very well may get a pardon as well.”
Defense attorneys are reportedly advising clients that conviction need not be the end for those who meet the criteria.
Hamilton’s nightmare has become litigation strategy.
What makes Trump’s corruption distinctive is not simply its scale but its variety.
A taxonomy reveals at least six pathologies:
The Political Pardon.
The Hernández case is the purest example: clemency for a convicted narcotrafficker, timed to influence a foreign election, justified by nothing but political utility.
“The US was seen as a place where justice would be done,” a former State Department official observed.
Foreign prosecutors, police, and judges now face “a tremendous disincentive” to assist American extradition requests when the president may release their targets arbitrarily.
Trump’s pardons aren’t just rewards for criminals; they sabotage US law enforcement abroad.
The Emoluments Pardon.
Trump pardoned Changpeng Zhao of the cryptocurrency exchange Binance, who pleaded guilty to enabling money laundering that, according to former US Treasury Secretary Janet L. Yellen, allowed “money to flow to terrorists, cybercriminals, and child abusers.”
But Binance hosts the Trump family’s cryptocurrency venture, assisted in creating the Trump stablecoin, and facilitated a $2 billion Abu Dhabi investment in it.
Trump claimed he didn’t know Zhao – difficult to believe, given the $450,000 in lobbying fees for “executive relief” and crypto-policy changes paid by Binance to Ches McDowell, a friend of the president’s son, Donald Trump, Jr.
The Loyalty Pardon.
On day one of his second term as president, Trump pardoned nearly 1,600 defendants in the January 6 attack on the US Capitol, including those convicted of seditious conspiracy and violent assault on police.
He later extended clemency to his lawyer at the time, former New York City Mayor Rudolph Giuliani; his White House chief of staff during his first term, Mark Meadows; and the “alternate” electors who were part of the plan to subvert the vote in the Electoral College.
His campaign manager, Paul Manafort, kept silent during the investigation which landed him in prison, no doubt expecting a pardon, which he received.
These pardons do not heal division; they reward those who advanced Trump’s interests and signal that future conspirators will enjoy the same protection.
The Transactional Pardon.
Reports describe pardons following large donations, including one after a $1 million payment at a Mar-a-Lago fundraising dinner.
Another variation of this is the pardon Trump gave to Tim Leiweke, the former CEO of Oak View Group, whom Trump’s own Justice Department had indicted just five months earlier for rigging the bidding process for a $375 million arena at the University of Texas.
Leiweke, who once called Trump “the world’s single greatest con man,” was represented by Trump ally and former congressman Trey Gowdy, who lobbied the administration to drop the charges or grant clemency.
The pay-for-pardon mechanism runs smoothly.
The Corruption-Normalizing Pardon.
Trump pardoned Democratic Representative Henry Cuellar, who was charged with bribery for accepting nearly $600,000 from an Azerbaijan-controlled energy company and a Mexican bank in exchange for official acts.
This pardon serves a different function than loyalty pardons: it signals that corruption itself – the sale of public office – is no longer a serious offense.
By extending clemency across party lines to an indicted bribe-taker, Trump announces that the laws against public corruption will not be enforced against anyone.
The pardon depoliticizes graft by decriminalizing it.
The Aspirational Pardon.
Perhaps the most insidious effect of Trump’s clemency regime is how it shapes the behavior of those not yet pardoned.
Sam Bankman-Fried, serving a 25-year sentence for defrauding customers of his crypto exchange, has in recent press interviews remolded himself as an ally of Trump and a fellow victim of Judge Lewis Kaplan, who oversaw both his trial and Trump’s civil trial for sexual abuse.
Bankman-Fried is auditioning for mercy.
But he has already been convicted.
When defendants reshape their public identities to qualify for future clemency, the pardon power hovers over the trial itself, corrupting the proceedings before any verdict is rendered.
What’s Changed?
Of course, presidents before Trump have been accused of abusing the pardon power. Gerald Ford’s pardon of Richard Nixon after the Watergate scandal may have cost him reelection; George H.W. Bush’s pardons in 1992 of former Defense Secretary Caspar Weinberger, former National Security Adviser Robert McFarlane, and others involved in the Iran-Contra affair drew accusations of obstruction of justice.
But these were isolated cases, not the wholesale transformation of clemency into a corrupt patronage system.
The US founders debated the danger of such a system.
At the Constitutional Convention, some delegates proposed excluding treason from the president’s pardon power or requiring Senate consent – precisely because treason is a crime against the polity and easily entangled with the executive’s own conduct.
The Convention rejected these proposals.
Those who supported the pardon power argued that an energetic executive is the person best placed to judge the moment for mercy, especially after insurrections.
In rebellions or conspiracies, the president needs the ability to offer quick pardons to induce surrender, maintain peace, or secure testimony.
A large legislative body would be too slow, too divided, too inflamed to respond effectively.
Hamilton stressed that the public good might sometimes demand leniency even toward treason itself.
Critics were not persuaded.
George Mason warned that a president might use this same power to shield co-conspirators in treason – even those he had secretly encouraged – thereby concealing his own guilt.
Edmund Randolph agreed, arguing that the pardon power was “too great a trust” because “the President may himself be guilty” and “the Traytors may be his own instruments.”
The answer given was that impeachment would check such abuse.
Carve-outs from the pardon power were unnecessary because Congress retained the ultimate weapon against a corrupt president.
The framers chose to trust accountability rather than constraint.
But that trust has proven misplaced because the accountability that impeachment was supposed to deliver has been completely absent.
Some commentators have noted that the Antifederalists (opponents of the draft Constitution) predicted exactly this abuse – a president using pardons to shield those who commit crimes on his behalf.
They were right to worry.
But Hamilton’s failed defense is more instructive than their vindicated critique.
The Antifederalists warned that the power could be abused; Hamilton explained why it wouldn’t be – and in doing so grasped something his critics missed.
Impunity Unbound
The Antifederalists, with their stress on civic virtue, had no answer to the political problem that the pardon power was designed to solve: how to end civil conflicts.
Shays’s Rebellion, the Whiskey Rebellion, the sectional crises to come in the run up to the Civil War – all required a mechanism for offering clemency quickly, flexibly, and authoritatively.
A republic riven by insurrection cannot wait for virtuous citizens to elect virtuous leaders.
It needs an instrument of peace.
Hamilton understood this.
His error was not in recognizing the need for discretionary clemency but in trusting that shame would constrain its abuse.
That guardrail has failed, and no amount of civic virtue among future voters can restore it.
The problem is not simply that America elected the wrong man.
The problem is that the Constitution’s design assumed a constraint that no longer constrains, and provided a backup, impeachment, that has proved unusable.
We are left with a structural gap, not a moral one.
What remains?
A constitutional amendment barring self-pardons and pardons for crimes committed at the president’s direction would require the support of two-thirds of Congress and three-quarters of the states – an impossibility in the context of today’s polarized US politics.
Congress could investigate, require disclosure of pardon-related lobbying and contributions, or strengthen registration requirements.
But these are palliatives.
Trump has moved to institutionalize the corruption of the pardon power.
He appointed Ed Martin, a political ally, as pardon attorney, eliminating the traditional buffer between presidential favor and clemency decisions.
The office that once maintained arm’s-length independence from the White House now operates as an extension of it.
The institutional damage extends further.
At the Southern District of New York, the elite office that won the Hernández conviction, experienced prosecutors are leaving.
Major indictments brought in the Biden era – including cases against New York City Mayor Eric Adams, Nikola founder Trevor Milton, and former Tottenham Hotspur owner Joe Lewis – have been undone by Trump through pardons, commutations, or other means.
The cases they built over years have been nullified in social-media posts.
But the darkest implication lies elsewhere.
The Supreme Court’s decision in Trump v. United States declared the president immune from prosecution when he is exercising his “core” constitutional powers.
Chief Justice John Roberts identified the pardon as “conclusive and preclusive.”
A president can now direct subordinates to commit illegal acts, secure in his own immunity, then pardon those who carry out his orders.
The circuit of impunity is complete.
This is Hamilton’s nightmare scenario – now sanctioned by the Supreme Court under Roberts’ leadership.
Hamilton believed executive discretion would end conflict; Trump’s discretion stokes it.
Hamilton believed shame would prevent connivance; Trump feels none.
Hamilton warned against announcing beforehand that rebels would be pardoned; Trump has established exactly such a standing policy – a guarantee that those who do his bidding will face no consequences.
The pardon was designed as an emergency power for peace.
Combined with absolute presidential immunity, it has become an instrument of lawlessness.
The president can instruct, immunize, and absolve.
Trump has transformed a power meant to restore the tranquility of the commonwealth into a weapon aimed at the commonwealth itself.
Stephen Holmes, a professor at New York University School of Law and Berlin Prize Fellow at the American Academy in Berlin, is the co-author (with Ivan Krastev) of The Light that Failed: A Reckoning (Penguin Books, 2019).
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