FUSA | CONSTITUTIONAL LAW & DEMOCRATIC ACCOUNTABILITY REPORT
The pardon power was designed as an act of mercy. It has become something else entirely.
By Professor Declan J. Morrow
FUSA Senior Correspondent, Constitutional Law & Clemency Reform
April 10, 2026
The legal facts, historical records, congressional documents, and executive actions cited in this article are factual and verified. They are drawn from the U.S. Constitution, federal statutes, Congressional Research Service reports, FactCheck.org, NPR, CNN, HuffPost, the Intercept, Holland and Knight legal analysis, and cross-referenced through AI-assisted multi-source analysis. Predictions and analysis regarding future political events are clearly labeled as such throughout.
A quick note before we begin. The reader may have seen commentary circulating that Trump’s former White House lawyer Ty Cobb predicted Trump will resign and have JD Vance pardon him. What is accurate is that Cobb, who has been consistently and sharply critical of Trump since leaving the White House, has warned that the administration’s actions represent “one of the greatest threats to our democracy.” The resign-and-pardon theory was publicly advanced by Democratic strategist James Carville in late March 2026, who argued on his podcast that Trump would walk away from the presidency after the midterms and secure a pardon from Vance to avoid future prosecution. Whether or not that specific scenario materializes, the underlying question it raises is real, urgent, and long overdue: why does no meaningful check exist on how a president uses the pardon power?
The constitutional design. Article II of the Constitution grants the president near-absolute power to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The founders modeled this on the English royal pardon and intended it as a safety valve for justice, a way to correct unjust convictions or extend mercy in cases where rigid law produced unfair results. What they did not fully anticipate, or perhaps chose not to restrict, was a president using that power as a personal shield, a political currency, or a method of burying inconvenient truths. The result is a clause with almost no guardrails in law, and a 250-year tradition of informal norms that are now being systematically ignored.
The history of abuse is bipartisan. The most famous example is also the most consequential precedent. In 1974, President Gerald Ford granted Richard Nixon a full pardon for “all offenses against the United States which he has committed or may have committed” before any charges had been filed, before any trial, and before the American people had any full accounting of what Nixon had done. Ford argued it was necessary to heal the nation. Historians continue to debate whether it was an act of mercy or an act of complicity. What is not debated is that it set a precedent: a president can be shielded from accountability by a successor willing to issue a preemptive pardon for crimes that have not yet been prosecuted or even fully investigated.
The Clinton administration provided the second major example of pardon abuse. On his last day in office in January 2001, President Clinton pardoned fugitive financier Marc Rich, who had fled the country after being indicted on 65 counts of tax fraud, illegal oil trading, and racketeering. Rich’s ex-wife Denise had donated $450,000 to the Democratic Party and $1 million to the Clinton presidential library. No formal review by the Department of Justice pardon attorney was completed before the grant was issued. A subsequent congressional investigation found the process to be deeply irregular. Even Clinton’s own Deputy Attorney General Eric Holder, who had sent a memo supporting the pardon without fully reviewing the case, later said his handling of it was “pardonable, but not my finest hour.”
Then came Trump. In his first term, Trump pardoned or commuted the sentences of campaign chairman Paul Manafort, political operative Roger Stone, national security adviser Michael Flynn, and strategist Steve Bannon, all of whom had been convicted or charged in connection with investigations that touched Trump himself or his political interests. He pardoned Dinesh D’Souza, a conservative commentator convicted of campaign finance fraud who had publicly championed Trump. He pardoned Joe Arpaio, the Arizona sheriff convicted of criminal contempt of court for defying a federal judge’s order.
His second term has accelerated the pattern dramatically. On his first day back in office, January 20, 2025, Trump pardoned more than 1,500 people convicted or charged in connection with the January 6, 2021 Capitol attack, including individuals convicted of violent offenses against police officers. On December 1, 2025, he pardoned Juan Orlando Hernández, the former president of Honduras who had been convicted by a US federal jury of conspiring to import more than 400 tons of cocaine into the United States and sentenced to 45 years in prison. The judge who presided over the case described Hernández as “a two-faced politician hungry for power.” Former Attorney General Merrick Garland had called him the architect of “one of the largest and most violent drug trafficking conspiracies in the world.” Trump told reporters it was a “Biden witch hunt” and released him the same day.
Trump also pardoned Changpeng Zhao, the CEO of Binance, who had pleaded guilty to failing to maintain an effective anti-money laundering program. Zhao had facilitated the crypto infrastructure that Trump later used to build his own World Liberty Financial venture. The same week Trump signed an executive order creating a Strategic Bitcoin Reserve, he was releasing from accountability the man who had helped enable his family’s crypto empire.
The Ghislaine Maxwell situation. In August 2025, convicted child sex trafficker Ghislaine Maxwell, a longtime personal acquaintance of Trump, was transferred from a low-security federal prison in Florida to the minimum-security Federal Prison Camp in Bryan, Texas, days after meeting privately with then-Deputy Attorney General Todd Blanche. Patrick McLain, a former federal prosecutor on children’s sex crimes cases, told HuffPost that Maxwell was “nowhere near qualified” for the Bryan facility under normal criteria. “They’re treating Ghislaine Maxwell with princess gloves because Donald Trump wants her to be quiet,” McLain said. Trump has repeatedly declined to rule out a pardon for Maxwell when asked by reporters. Every time the question has been posed, he has specifically avoided saying no.
The bribery door that swung open. On February 10, 2025, Trump signed Executive Order 14209, pausing enforcement of the Foreign Corrupt Practices Act, the nearly 50-year-old law that prohibits American companies and individuals from bribing foreign government officials to obtain or retain business. Trump said at the signing that the law “hurts the country” and that too many deals were being lost because people “don’t want to feel like every time they pick up the phone, they’re going to jail.” FCPA enforcement was substantially narrowed. The law itself, which only Congress can repeal, remained on the books, but its practical enforcement was redirected and weakened. This happened at the same time Trump was issuing pardons to foreign officials, crypto executives, and drug traffickers in circumstances where the connections between those pardons and personal or political benefit to Trump were documented and direct.
Under existing federal law, 18 U.S.C. Section 201 makes it a federal crime to give anything of value to a public official in exchange for any official act. A presidential pardon is an official act. A pardon given in exchange for money, political loyalty, or information suppression would therefore itself be a federal crime regardless of the constitutional breadth of the pardon power. The question of whether anyone in this administration will ever investigate that is a separate matter. The question of whether it needs to be prevented through structural reform is not.
The Vance pardon scenario and its legal limits. Carville’s prediction, and the broader political discussion it reflects, raises a constitutional issue worth understanding clearly. A pardon from President Vance for Trump’s federal crimes would be constitutionally valid under current law and precedent, following the Ford-Nixon template. But federal pardons do not cover state crimes. Any prosecution by the state of New York, the state of Georgia, or any other state government would be entirely unaffected by a federal pardon. The Epstein files, should they produce evidence implicating Trump in state-level criminal conduct, would not be covered. International investigations, including any proceedings brought by the International Criminal Court or foreign governments, would also not be affected. The pardon would protect Trump from federal jeopardy only. It would be a significant but incomplete shield.
What Congress must do. The pardon power as currently structured operates entirely outside the judicial and legislative branches. No court reviews pardons before they are issued. No committee has advance notice. There is no mandatory transparency period, no requirement that the DOJ pardon attorney conduct a full review, no prohibition on pardons granted within a defined period of political donations from the pardoned party or their associates, and no mechanism to void a pardon later found to have been granted in exchange for something of value. Congress has the authority to impose all of these requirements through statute. It has not done so. Resolutions condemning the Hernández pardon, H.Res. 929 and S.Res. 530, were introduced but face little prospect of passage in the current Republican-controlled Congress. A future Democratic majority will need to move quickly when it arrives, because the precedents being set right now will not conveniently expire when this administration does.
The American people deserve a pardon system that serves justice. Not one that serves the person holding the pen. The founders built the pardon power as an instrument of mercy and equity. What has been built in its place is something that looks, with each passing month, more like an instrument of cover. That is a problem every American should want solved, regardless of party, because the next president to abuse it may not be the one you already dislike.
References
1. Fox News / James Carville, “Politics War Room” podcast, March 26, 2026. Carville’s theory of Trump resignation and Vance pardon.
2. Wikipedia, Ty Cobb (attorney). Former Trump White House lawyer, now a Trump critic. January 2026 statements on dementia and democratic threats.
3. Congressional Research Service, “Presidential Pardon of Former Honduran President Convicted of Drug Trafficking,” December 2025.
4. NPR, “Trump pardons Honduran ex-president who was convicted of drug crimes,” December 2, 2025.
5. CNN, “Ex-Honduran leader thanks Trump for pardon,” December 3, 2025.
6. FactCheck.org, “Examining Trump’s Pardon of Former Honduran President,” December 5, 2025.
7. HuffPost, “Trump Has Pardoned Fraudsters, Cop-Assaulters And A Drug Lord. Is Ghislaine Maxwell Next?” December 17, 2025.
8. Holland and Knight legal analysis, “President Trump Issues Executive Order to Halt FCPA Enforcement,” February 20, 2025.
9. CNBC, “Trump signs order pausing enforcement of foreign bribery ban,” February 10, 2025.
10. Carlton Fields, “President Trump Issues EO Pausing Enforcement of FCPA: A Sea Change Moment,” February 2025.
11. U.S. Constitution, Article II, Section 2 (Pardon Clause).
12. 18 U.S.C. Section 201 (Federal bribery statute, prohibition on payments to public officials for official acts).
13. H.Res. 929 and S.Res. 530 (Congressional resolutions condemning the Hernández pardon), 2025.
14. PBS FRONTLINE, interview with Ty Cobb, April 3, 2025.
15. U.S. Bureau of Prisons, Ghislaine Maxwell transfer to Federal Prison Camp Bryan Texas confirmed August 1, 2025.
16. Governor Newsom’s office, “Trump pardons drug lords,” December 2025, citing Binance CEO pardon and crypto connection.