Reforming the President’s Pardon Power: How Using Clemency to Compensate and Coerce Loyalty Undermines Democracy

“Such a lack of LOYALTY…”

- President Trump, after hearing that just-pardoned Congressman Henry Cuellar would run for office as a Democrat

Since retaking office in January 2025, President Trump has pardoned or granted clemency to more than  1,700 people. Most of them were either convicted of or charged with committing crimes related to the Jan. 6, 2021 attack on the U.S. Capitol. Among others pardoned by Trump are several congressmen found guilty of corruption or other charges, three crypto felons including the founder of Binance, Changpen “CZ” Zhao, and fraudsters who had aided the Republican party in seeking former President Biden’s impeachment.

What sets these pardons apart from normal clemency is simple: they appear to serve principally to reward, maintain, or coerce political loyalty rather than to reduce the disparate impact of an overzealous judiciary. Although politically motivated pardons are not unique to Trump—President Bill Clinton’s last-day pardons were heavily scrutinized for impropriety—no president has utilized the power to pardon in such a sweeping fashion to distribute benefits and rewards based on political allegiance.

The result is that the pardon power is no longer mainly a benign tool of mercy. Instead, the power to pardon has become a key piece in Trump’s system of patronage, used to both reward those who show loyalty to the president and signal that those who break the law in his favor will avoid repercussions. This system of patronage is deeply undemocratic and poses serious risks to our national security. As a result, Congress must take steps to reign in the abuse of the pardon power.

Foundations of the President’s Power to Pardon

Article II, § 2, cl.1 of the Constitution provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The constitutional pardon power developed from a long-history of English common law providing the executive—the King—with a “royal prerogative of mercy.”

As Chief Justice John Marshall wrote in United States v. Wilson, “[a] pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.” The pardon power has an important place in the constitutional checks-and-balance by, as the Supreme Court noted in Ex Parte Grossman, “afford[ing] relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.”

The power to pardon is provided to the President alone, and “cannot be modified, abridged, or diminished by the Congress.” As Alexander Hamilton explained in The Federalist No. 74, placing the responsibility to pardon solely in the hands of the president was intended to ensure that the law was implemented with “humanity” as “one man appears to be a more eligible dispenser of the mercy of the government than a body of men.” At the same time, empowering a single person with the responsibility to pardon was also intended to “inspire scrupulousness and caution.”

While the power to pardon is the president’s alone, there are limits on both its ends and means. First, the president can only pardon “Offenses against the United States” and cannot pardon in “Cases involving Impeachment.” There are also serious questions about whether the president can self-pardon, a clear conflict of interest if there ever was one. Second, the president cannot use the pardon power in an unauthorized or illegal way. The rules against bribery and political coercion that apply to exercise of the president’s other powers would appear to apply with equal force to his pardon power. Finally, as the Supreme Court suggested in Ex Parte Grossman, there are times in which the abuse of the pardon power may be the basis of impeachment.

What Are Patronage Pardons?

In Political Order and Political Decay, Francis Fukuyama defines a patronage relationship as “a reciprocal exchange of favors between two individuals of different status and power, usually involving favors given by the patron to the client in exchange for the client’s loyalty and political support.” Sometimes this shows up as a quid-pro-quo, i.e., the exchange of an official act for an identifiable payment or thing of value. Other times there is no explicit quid-pro-quo, but rather an implicit agreement of ongoing favors and expectations of support and loyalty.

What sets a patronage-based pardon apart from legitimate clemency is that it serves principally not as a means of reducing the “harshness or evident mistake in the operation or enforcement of the criminal law” but as a tool to reward, maintain, or coerce personal and political loyalty.

How Do Patronage Pardons Harm Americans?

Patronage is a form of corruption. The classic definition of corruption is the “abuse of entrusted power for private gain.” Patronage fits neatly within that definition: the patrons’ relationship with his clients places them above other citizens and results in the giving of official favors to those who do not merit them, but who “earn” them through their personal loyalty.

The harm of patronage is like that of bribery: instead of government benefits flowing to those who deserve them the most, benefits flow to those who have shown personal loyalty. In this sense, patronage is fundamentally inconsistent with the basic social contract and the democratic view that the government should serve the public’s interest.

Patronage pardons harm Americans in several ways. First, and most obviously, individuals who do not warrant clemency are released back into society. Worse, those individuals may see their “get out of jail free” card as a signal that they are above the law. Second, individuals who are worthy of clemency may be passed over for their lack of loyalty, or else may find themselves needing to pay for their pardon with promises of future loyalty. Third, abuse of the pardon system for personal benefit undermines the integrity and fairness of the judicial system.

How Trump has Used Patronage Pardons

Most of the nearly 1,700 people pardoned or granted clemency by Trump have supported him, could influence decisions that would result in personal benefits for the president, or could engage in activities that harm him. Pardons of political donors, January 6th defendants and convicts, as well as those who assisted Trump in his attempt to overturn the 2020 presidential election (including those who served as fake electors), fall within the first category. The pardon of Binance head Changpen “CZ” Zhao and Trevor Milton appear to fall into the second category. The pardon of Henry Cuellar (who the President appears to have assumed would repay him by staying out of upcoming elections) and the proposed pardon of Ghislane Maxwell fall into the third category.

Each category of patronage pardon poses serious corruption challenges that fundamentally undermine Americans’ right to a fair and responsive government.

Rewarding & Reinforcing Loyalty: January 6th Defendants and Convicts

On day one of his second term, Trump pardoned over 1,500 people who were charged with or convicted of crimes stemming from the Jan. 6, 2021 attack on the U.S. Capitol. Several far-right activists responded with statements of devotion to the president. Enrique Tarrio, the former head of the Proud Boys, said in an interview with Alex Jones that “I love President Donald Trump and I’m happy that all of us are going to be working together to make America great again.” On X (formerly Twitter), Tarrio wrote: “I am loyal to the President because he has given me my life back and I support his policies.” Stop the Steal organizer Ali Alexander proclaimed that he “would storm the Capitol again for Donald Trump” and “would start a militia for Donald Trump.” These pardons align with what Ed Martin, the president’s pardon attorney, called a policy of “No MAGA Left Behind.”

Unsurprisingly, Trump’s pardons have galvanized and emboldened insurrectionists. The pardons also signaled that the president would not hold insurrectionists, and the hate groups that supported the insurrection, accountable for similar future activity. Trump’s pardons therefore served a dual purpose in his system of patronage: to reward his followers for their loyalty and redouble that loyalty.

Extracting Personal Benefits: Binance & Zhao

In May, the president’s son, Eric Trump, announced that MGX (an investment company owned by the UAE royal family) would use USD1, a Trump-supported stablecoin, to finance a $2 billion dollar investment in Binance. USD1 had been launched only two months earlier in March. It is estimated that if Binance continues to hold USD1, Trump and his family could receive as much as $80 million over a single year in yields.

In October, Trump issued a pardon to Changpen “CZ” Zhao, the founder of Binance and its largest owner. Zhao had been prohibited from holding an executive role in the company given his criminal conviction for failing to maintain a proper anti-money laundering system. In September, Binance hired Ches McDowell, a close associate of Donald Trump Jr., to lobby the White House for a pardon of Zhao. The same day as his pardon, Zhao posted that he was “[d]eeply grateful for today’s pardon and to President Trump for upholding America's commitment to fairness, innovation, and justice” and that he would “do everything we can to help make America the Capital of Crypto and advance web3 worldwide.” Following his pardon, it is reported that Zhao has been working to find ways to re-enter the U.S. market.

Trump’s family received a remarkable deal with MGX and Binance. Any currency or stablecoin could have been used to facilitate the deal. The fact that USD1—an untested and recently launched token—was selected raises obvious questions concerning why. That Zhao received a pardon just several months after securing the services of a close ally of Donald Trump Jr. raises further questions. In the end, President Trump’s family benefited financially and Zhao received a pardon. Whether the president remembers who Zhao is or not, the pardon appears to be part of a system aimed at rewarding those, like Zhao, who benefit the president and the first family.

Coercing Loyalty?: The Case of Ghislaine Maxwell

Ghislaine Maxwell was convicted of sex-trafficking and other related crimes in 2021 as part of her longstanding relationship with Jeffrey Epstein. Maxwell is currently serving a 20-year prison sentence. Following Epstein’s death in 2019, Maxwell became one of only a handful of people capable of providing a first-hand description of his relationship with co-conspirators and others who may have engaged in or were aware of illicit sexual activity.

Trump’s close relationship with Epstein over many years is well-documented. Given Trump’s reticence to release any documents related to Epstein in his Department of Justice’s (DOJ) possession, legitimate questions have been raised concerning Trump’s knowledge of Epstein’s illegal activities. Maxwell’s unadulterated testimony about what she knew regarding Trump would, of course, assist in resolving these open questions. Todd Blanche, the Deputy Attorney General for the United States and Trump’s former personal attorney, met with Maxwell in July 2025 as pressure built for Trump to release all documents the government had related to Epstein. During the interview, she not only denied that she was aware of any misconduct, but went further to fawn over the president saying: “I admire his extraordinary achievement in becoming the President now. And I like him, and I've always liked him. So that is the sum and substance of my entire relationship with him.”

Maxwell’s gratuitous praise makes sense when one is aware that she has also asked Trump to pardon her for her crimes. Until Trump decides whether he will give Maxwell a pardon, he has leverage over her and can use the possibility of a pardon as an enticement to coerce her loyalty and silence. Maxwell’s proffer to the DOJ strongly suggests that she is aware that keeping Trump in her good graces is the only way to secure her freedom. Trump’s decision to not pardon Maxwell could be a way of stringing her along and enforcing her silence. In effect, the president arguably has been able to conscript Maxwell’s loyalty by holding out on the possibility of her receiving a pardon.

Suggested Reforms

The abuse of the clemency power as a tool to reward, maintain, and coerce loyalty is a violation of the fiduciary obligations that the president has to the American people. Pardons are supposed to operate as a matter of “grace” to alleviate an injustice. Utilizing clemency as a bargaining chip undermines the intended purpose of the pardoning power.

Steps must be taken to rectify the situation. Over the years, Congress has introduced several bills that would take some steps to address the abuse of clemency. These include the Pardon Transparency and Accountability Act of 2025 and the Abuse of the Pardon Power Prevention Act of 2020. These are good starting points as to what reforms are needed. Additional steps are proposed below.

Prohibit Patronage Pardons

First and foremost, Congress must take steps to prohibit pardons that are given or received for promises of future support. While many have suggested that Congress amend the current bribery statute to clarify that the President is both subject to the law and that a pardon is a covered “official act,” those changes do not go far enough. The first amendment may have become unnecessary, with the majority of the Supreme Court implicitly accepting that the bribery law does apply to the President in U.S. v. Trump. The second amendment likewise seems unnecessary, given that a pardon is inherently the type of “decision or action any question, matter, cause, suit, proceeding or controversy” that can be brought before the president and is therefore covered by the law.

Neither suggestion, however, addresses the transactional nature of patronage pardons. The Supreme Court has continually narrowed what constitutes bribery, permitting only explicit quid-pro-quo arrangements. While patronage pardons may be expressly based on a quid-pro-quo agreement, the real risk is that the president can bank future personal or political support even if he has not asked for any specific thing in return for a pardon. What is needed is a broader limitation, one that recognizes trading in influence and abuse of authority is as corrupt as narrow bribery payments.

Increase Transparency Around Pardon Lobbying

Second, Congress must bring to light the pardon lobbying process. While the Lobbying Disclosure Act applies to lobbying activities related to pardons, the DOJ has not conducted many criminal investigations concerning violations of the LDA. One notable exception was the Department’s 2020 investigation into a “secret lobbying scheme” related to pardons. The reason for a paucity of cases is the nature of the LDA itself, as it requires a showing that a lobbyist spent more than twenty percent of their time lobbying in any three-month period. As Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia explained, “a prima facie showing of a purported violation of the LDA may be elusive” given how hard it is to prove that a person reached that threshold.

Given the current unrestricted nature of the pardon process, much more transparency must be provided than the LDA requires. The LDA should be amended to require the disclosure of any lobbying contacts made for the purpose of requesting or seeking a pardon. In addition, any person seeking a pardon should be required to file a copy of the request with Congress. And most importantly, each person who receives a pardon should be required to report, under penalty of perjury: (1) all contributions made to the president’s campaign or affiliated entities and inauguration fund (2) any person whom they utilized to seek a pardon, and (3) information on each lobbying contact made to any person within the executive branch for the purpose of seeking a pardon.  

Disincentive Abuse of the Pardon Process by Stripping the President of Congressionally Approved Benefits

Third, Congress should take steps to penalize the president for abusing the pardon process. While the legislature cannot outlaw the president’s use of pardons, nor can it overturn an act of executive clemency, the legislature can create disincentives to discourage the abuse of the pardon power. Principally, Congress can rescind support of the president. For example, Congress could reduce or rescind financial benefits provided to former presidents under the Former Presidents Act (3 U.S.C. § 102, note), including ending their pensions, medical insurance, and office allowances. Congress could also exclude the former president from using or accessing any material held by the government as part of his presidential library. Finally, Congress could debar or suspend the president from receiving government contracts, grants, or other forms of individualized financial assistance.