Lawfare Daily: Patronage Pardons: A Conversation with Prof. Lee Kovarsky about a Novel Feature of the Trump Administration

Lee Kovarsky, an endowed chair professor at the University of Texas School of Law, speaks with Senior Editor Roger Parloff about patronage pardons, the subject of his forthcoming article in the Duke Law Journal.

Patronage pardons are pardons a president issues to reward and possibly even induce criminality by political supporters. Kovarsky discusses whether the founders anticipated such pardons, gives examples of such pardons, explores how they differ from ordinary pardons, and ponders whether anything can be done to rein them in.

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Click the button below to view a transcript of this podcast. Please note that the transcript was auto-generated and may contain errors.

Transcript

** [Intro]**

Lee Kovarsky: The point is he wanted to do this quickly and publicly, again, to communicate to people who might contemplate transgression vigilantism on his behalf, that if they align themselves with MAGA, then there is protection waiting for them at the end of any adverse criminal consequence.

Roger Parloff: It's the Lawfare Podcast.

I'm Roger Parloff, senior editor at Lawfare, and I'm with Lee Kovarsky, an endowed chair professor at the University of Texas School of Law.

Lee Kovarsky: It seems like none of these people are all that worried about disobeying court orders, about ignoring rules, and some of that's because they know they're not gonna be prosecuted by the Trump Justice Department.

And another piece of it is probably because they know they're gonna get a blanket pardon when Trump leaves office.

Roger Parloff: Today we're talking about patronage pardons—that is, pardons that are president grants in order to excuse and maybe even induce criminality by his political supporters.

[Main Episode]

So Lee, you have a very interesting new article coming out in the Duke Law Journal called “Patronage Pardons.”

What is a patronage pardon?

Lee Kovarsky: A patronage pardon is a concept that I came up with. You know, I need a snazzy buzzword for it. But the idea is that it's a pardon that serves a dual function. Not only does it spare its recipient from criminal punishment, but it also operates as a form of communication to people who might be contemplating transgression on behalf of the president's behalf.

And in that sense, I view the pardons as powering a system of patronage, basically a kind of loyalty for protection—in which the promise of impunity that flows from a pardon induces people to criminally offend and engage in other misconduct on behalf of the person with a pardon power, the president.

Roger Parloff: I see. And is this a completely abstract theory or do you think this might actually be in operation?

Lee Kovarsky: Yeah, you know, it works in theory, but its academic timing actually reflects the broader world around us and the pardon practices of the current and prior Trump administration to be honest.

The practices accelerated during the second term, but Trump 45 was doing this. It started off the very first pardon he gave was actually to Sheriff Joe Arpaio. And it was a very, you know, thinly veiled attempt to communicate that the president had approved of his contempt of an order not to harass Hispanic people, undocumented folks and so forth.

Roger Parloff: Let's step back first and since this is Lawfare, let's talk about the pardon power. Article Two, section two, clause one: “The president … shall have power to grant reprieve and pardons for offenses against the United States, except in cases of impeachment.” So that's very broad.

And just first on terminology. I think I know what a pardon is. I don't really know what a reprieve is. I think I know what commutations are, but tell us what they are and are you talking about all three really?

Lee Kovarsky: Yeah. What I'm really talking about is the clemency power and the pardon clause, although it's called the pardon clause, actually is understood as investing in the president clemency power and clemency is the power to, pardon, i.e. to void a criminal sentence. It's the power to commute, which is to reduce the punishing effect of a criminal sentence. It's the power to reprieve, which is the power to delay the imposition of a criminal sentence, and it's also the power to reduce fines.

Roger Parloff: Okay. And going back and in your article, you go back to 1100, and I don't really want to go back that far, but going back, say to our constitution, did anyone worry about what you're calling patronage pardons.

Lee Kovarsky: Yeah, they, some people really did. You know, I don't, I know that you don't want to go back this far, but you know, some of that concern was a reflection of things that had happened in England. And you know, there was particular concern about a too strong executive and how an executive might abuse power. So the idea that a president would have a broad and a thick pardon power that could operate without Senate consent in virtually all cases where there's been an offense against the United States was something that actually concerned quite a few people.

Now, in the end, those concerns were overridden by the idea that, okay, if a president was really going to use pardon power to advertise his willingness to support people committing offenses and undertaking wrongdoing on his behalf.

There would be shame and infamy in that, and there would be an impeachment. Of course, that assumes a set of political circumstances that don't obtain anymore. And so, you know, the founders assumed there was a political check on this type of development that just isn't there anymore.

Roger Parloff: Right. And some of them might have thought there was a criminal check too.

Didn't they think that—

Lee Kovarsky: That’s right,

Roger Parloff: Right.

Lee Kovarsky: Yeah. I mean, they may have thought that a president would face subsequent criminal liability for using the pardon power to induce misconduct. I mean, you know, there aren't, to be clear, there aren't, you know, there's not documentation showing that they actually said that, but certainly that had that was likely on top of mind as they discussed the other reasons why they thought that there were other reasons that they didn't need to attach legal constraints on a pardon power.

Roger Parloff: Have we seen it before the first Trump term in U.S. history?

Lee Kovarsky: Not really. In other words, it's not that there wasn't corruption. And it's not that there wasn't self-dealing, right?

Invariably, when people encounter this argument, they're like, what about this president who did this thing? Or what about that president that did that thing? What about Bill Clinton when he pardoned his—It's very like Marc Rich and some of the other folks—and the point isn't that there wasn't corruption during prior administrations.

The point is that in prior administrations, those moments of corruption were kind of shameful. They were private. What's different about the Trump administration is he is advertising this pardon for transgression exchange in ways that were sort of unthinkable in a different political environment.

Certainly, it's a difference between Trump and prior presidents, and it's also a different between current political conditions and political conditions during administrations prior.

Roger Parloff: Yeah, and let me just, this is a little bit of an aside, but it comes up a lot when I think about the Trump administration.

It's the word corrupt. I have two hesitations about when I can use it and not. One is, does it need to be mercenary? And, 'cause these things would not be mercenary. The other is, can I use corruption when I'm describing something that isn't illegal? It's just something that's sort of scummy and it seems like it ought not to be.

Lee Kovarsky: Of course. And you know, it's interesting that you phrase the question that way because so often someone will pose a question to the president, like a press pool, and you're like, well, should you be offering to this, pardon to this really horrible person? Or should you be exercising this executive power in a way that seems like deeply morally questionable? And his response is just that like, well, I'm allowed to do it.

Like, well, the fact that you're allowed to use a power in a particular way doesn't mean that you should exercise it in that way. The question of what's legal and what's right are two totally separate things.

I mean, the three branches of government are vested with vast powers, and nobody thinks that just because you're vested with the power, that anytime you exercise it, it's good or moral or acceptable or desirable.

Nonetheless, that seems to be the position that Trump has taken with respect to pardons in particular, and with respect to his executive power more generally.

Roger Parloff: Well, let's go back to that, Joe Arpaio pardon in his first term was it? Was it fairly early in the first term? I can't remember.

Lee Kovarsky: I think it was a year or two in, I don't remember exactly when it was in the first term, but it was actually Trump's very first pardon.

Roger Parloff: Okay.

Lee Kovarsky: So whether it was early in the term or later, it was the first pardon that Trump used.

Roger Parloff: And remind us what Arpaio had done at that point.

Lee Kovarsky: Arpaio had been found in criminal contempt. That means that he was the subject of a court order to stop directing his department to harass people of color, to harass Hispanic folks, to harass folks that they thought might have been undocumented.

And he knowingly and flagrantly violated that order and when you do something like that, you can be held in criminal contempt and he was held in criminal contempt. And if you are held in criminal contempt, it's considered an offense against the United States.

And so in his very first, pardon, Trump says, you know, Joe Arpaio has been treated very badly, you know, and I'm giving him this pardon. And, you know, everybody understood that the pardon aligned with Trump's preferences about how folks near the border would be treated by law enforcement. You know, in effect was saying to law enforcement along the southern border like, ‘Hey, do what Joe did, and there's a pardon waiting for you at the end of any adverse legal action.’

It's a little bit like you know, I'll date myself here, but Jurassic Park, right? And in the beginning of Jurassic Park, you kinda have the raptors that are testing the fence. And with Arpaio, it kind of felt like that was Trump being the raptor, testing the fence and kind of seeing what he could get with, because there was no—

I mean, of course he said Arpaio didn't do anything wrong sort of generally, but there was no sort of factual claim that Arpaio hadn't done the factually asserted things that he'd done in contravention of the order. Trump just didn't think that law enforcement along the southern border should have to, you know, fight with what he would call handcuffs on.

Roger Parloff: And so it's a message going forward. It's not just a backward-looking mercy.

Lee Kovarsky: Right. And that's the difference between the corrupt pardons of the past, right? Moments of shame, private moments versus the way he's using partying power, which is to, you know, a sort of a theatrical stage that he uses to communicate to everybody, ‘Do what I want and I will protect you on the back end.’

Roger Parloff: And then staying with the first term for the moment, you also mentioned the Scooter Libby pardon, which is an interesting one to focus on. Tell us what you see in that, the significance of the Scooter Libby pardon.

Lee Kovarsky: Sure. I'm gonna, I'm now dating myself pretty consistently, but I'm gonna assume that not everybody in your audience knows who Scooter Libby was.

Roger Parloff: Yeah, that's a safe bet.

Lee Kovarsky: Scooter Libby is the chief of staff for Vice President Dick Cheney. And basically Scooter Libby was heavily involved with an attempt to out CIA agent Valerie Plame, who was married to Ambassador Joe Wilson, who was a very vocal critic of George W. Bush. And he was criminally punished for it.

And clearly, Bush thought his crimes, you know, although committed on his behalf were pretty severe. So he commuted Libby's sentence. In other words, he let Libby out of prison, but he didn't wipe away the conviction. He didn't pardon him. And actually, Bush's refusal to fully pardon Libby by some accounts opened a pretty big rift between him and Cheney.

Well, in any event you know, fast forward to the Trump one administration and Trump grants a full pardon to Scooter Libby, and he says, I've never met the guy. But I heard that he was treated very badly, which very clearly meant that he heard that you know, the administration, the regime had left a soldier on the field.

And he granted this pardon to Libby in the middle of the Mueller investigation, in which his former national security advisor, his former campaign manager, and several high level MAGA figures were all in the cross hairs of a special counsel investigation, and the message to them was unmistakable.

This isn't some paranoid interpretation that people have later, people who were opponents and allies of the presidents all read it the exact same way at the time. There's a prominent quote from Newt Gingrich, I believe, saying what this was meant to communicate to the targets of the Mueller probe.

Roger Parloff: That they should, if they stay quiet, they'll be taken care of.

Lee Kovarsky: Stay quiet. You'll get your pardon Indeed. Roger Stone got a pardon, Paul Manafort got a pardon, you know, they all got pardons.

Roger Parloff: Mike Flynn, eventually.

Lee Kovarsky: Mike Flynn got his pardon. Yeah.

Roger Parloff: Yeah. So let's move to the second term, and of course we don't need to get far into it before we get some pardons.

The first day we get about in effect, I guess, about 1,583 if we count clemency actions of various kinds. The January 6th people, tell us about that.

Lee Kovarsky: So, now the audience isn't so young, if they won't remember that Trump campaigned on awarding clemency in some fashion or another to the January 6th insurrectionists and—

He hadn't really decided the particular details of that campaign promised by most accounts. And it was sort of surprising that he decided on maximalist clemency as soon as he got into office. So he pardoned virtually all of them, although there were a few of them, a few oath keepers and Proud Boys, where their sentences were just commuted.

Again, you know, it's not like he knows these people. It's not like he knows anything about, you know, the details of their individual offenses, who broke what guardrail or brought what gun in or trespassed where, or punched what cop. The point is he wanted to do this quickly and publicly again, to communicate to people who might contemplate transgression vigilantism on his behalf that if they align themselves with MAGA, then there's protection waiting for them at the end of any adverse criminal consequence.

Roger Parloff: Yeah. And this was again, day one. I think of the scummy pardons like Marc Rich. I think of them as the last day of your term, you know?

Lee Kovarsky: Yeah.

Roger Parloff: But this is day one. It's sending a message.

Lee Kovarsky: Yeah, I mean, people love to talk about the Marc Rich pardon? They love to talk about Biden's pardon of his son, but again, these are all pardons happening. At the very end of terms, they're not meant to be public facing communication to regime allies.

They're things that the presidents like thought they had to do or wanted to do, but didn't necessarily want to advertise. So the express purpose of the January 6th pardons is, well, I say express purpose. The clear purpose of the January 6th pardons is at least in part, to advertise the return on loyalism.

And I mean, we've watched President Trump for the last, you know, year or so. We know his mind is absolutely consumed with. The loss in the November, 2020 election. He perseverates about it. He clearly obsesses about it when he watches television. And, you know, this was the most public thing he could do to tell folks that they were right and what they did.

Roger Parloff: And beyond that, they were right. But that as long if they do it again and it's for him. You know, it's gonna be okay since then. Have there been others that you would categorize as patronage, pardons, or other events like this?

Lee Kovarsky: Yeah, I mean, those are the most visible ones. The pardons to Flynn and Manafort and Stone are themselves, like they're the downstream consequences of a promise made through the Libby pardon.

But they also perform double duty as themselves. Pardons that communicate to future folks contemplating transgression on the regime's behalf. It's not necessarily transgression that triggers the pardon, but the willingness to pardon transactionally in any context communicates the willingness to pardon for loyalist transgression undertaken on behalf of the president.

And that, you know, the president's pardon practices now are almost completely transactional. You look across the universe of his pardons, and it's always the pardonee’s mother gave a $1 million donation or you know, this, pardonee, like Ross Ulbricht from Silk Road, who's like a monster and hired you know, hitmen to kill people on, you know, on Silk Road. I maybe don't have the details exactly right, but you know, something like that.

You know, Trump, he'd become a cause celebrity for the libertarian party. And in order to transactionally secure that support, he very publicly pardons Ross Ulbricht. There's a similar reason behind the pardon, giving to the Binance chair.

Again, that's a way to forge a relationship with the crypto community and also seen as a sort of return on libertarian loyalism.

Roger Parloff: The Honduras guy?

Lee Kovarsky: I'll be honest, I don't know exactly what that's about.

Roger Parloff: Okay.

Lee Kovarsky: I wish I did.

Roger Parloff: Yeah.

Lee Kovarsky: You know, and I honestly, sometimes, I mean, it's President Trump, so sometimes the reasons are just like vanity.

You know, if people suck up to him enough and are obsequious enough, then they get a pardon. And I mean, that's honestly him using the pardon to send a message, too.

And the message is bend the knee. And if you bend the knee. There's your pardon. And so this, you know, the, what I'm calling patronage pardons is just one part of like the overall pardon transactional that characterizes everything that Trump is doing with the clemency power.

And it's really sort of sad for people like me who think of the clemency power as something with pretty considerable potential for good.

Roger Parloff: There was a pretty extraordinary remark from what I'll call one of the pardons czars, is he has a lot of different pardon people at this point but Ed Martin is one of them or claims to be or was one.

I don't know his status right now, but at some point I forget who was pardoned and he tweeted out, “no MAGA left behind.” Can you comment on that?

Lee Kovarsky: Yeah, so Ed Martin is kind of this unsavory character that couldn't get Senate confirmation. He briefly was the interim U.S. attorney with power over D.C. But because he wasn't Senate confirmable, he was placed in the role of pardon attorney, which is historically the office that organizes potential pardonees for presentation to the president and the rest of the Department of Justice so that they may consider whether they actually get some form of clemency.

But of course, as Trump has swept into power, the entire design and bureaucratic function of that office has changed and it's basically become an office that targets MAGA figures for pardons. He's tweeted out “No MAGA left behind” a few times, and I think the most recent time that he did, I believe, was in association with a set of pardons for, maybe it was Rudy Giuliani and several others.

I could have that wrong, but if it's Giuliani in that group, those pardons are totally communicative because those people weren't going to be prosecuted federally anyways. Trump controls the Justice Department and what was that issue? Was their activity, you know, prior to the 2024 election. So you know, they were safe. But that's Trump using the power to say to people notwithstanding, you know, the fact that there was no real jeopardy for the pardons that they weren't gonna leave any MAGA behind.

The other—and I can't remember if he also tweeted that in response to the woman in Colorado custody who they tried to, pardon? And they don't have power to pardon? But they tried

Roger Parloff: Peters.

Lee Kovarsky: Yeah. Tina Peters, yeah.

Roger Parloff: Mm-hmm.

Lee Kovarsky: Yeah. And I, it may have been that he tweeted that out after the pardon issued for her as well, which again, is sort of comical because the president doesn't have the authority to pardon someone who committed an offense against a state.

Roger Parloff: Do you think that these patronage pardons have actually had an impact during his administration?

Lee Kovarsky: Oh yeah. You know, one could talk about patronage pardons in isolation. And as an academic of course, that's something I do because I'm trying to isolate the mechanism by which it produces like this feedback loop.

But obviously, reward friends and punish enemies and use the criminal justice system to do that is part of an overall governance strategy in the Trump administration. So, you know, they slow down or refuse prosecution of regime allies, they accelerate and undertake prosecution of regime enemies.

There's the sort of attempt to indict the six or whatever, congressional Democrats. There's the attack on Trish James, the indictment of Trish James. There's the—

Roger Parloff: James Comey.

Lee Kovarsky: Comey, Don Lemon, you know, so there is selective use of law enforcement in the criminal justice system across the spectrum.

It is a full spectrum practice in the Trump administration to abuse the criminal justice system in ways that reward loyalty to the regime and the patronage pardon practice is just one piece of that, but it's a pretty big piece.

Roger Parloff: There's also some pretty dicey conduct that you wonder would people feel as confident doing it, if they weren't certain the president had their backs?

The behavior of DOGE, the immigration enforcement, JGG, the disobeying Boasberg’s order and sending 137 people to CECOT, is it too much to speculate that might be, have something to do with the pardons or—

Lee Kovarsky: No. Not at all. I think it absolutely does. You have, you know, this goes to a specific problem with officers breaking laws and disobeying court orders.

Ordinarily, if you disobey a court order, you're held in contempt. And a lot of times if you do it as flagrantly and visibly as a number of these administration officials have done, then you're staring at criminal contempt. And you know, the idea behind criminal contempt is that like you can be in jail and face a really hefty fine for disobeying a court order.

Well, the problem with criminal contempt is that it's an offense against the United States within the meaning of the Constitution. And so the president has the power to pardon that category of offenses. And so it seems like none of these people are all that worried about disobeying court orders, about ignoring rules.

Some of that's because they know they're not gonna be prosecuted by the Trump Justice Department. And another piece of it is probably because they know they're gonna get a blanket pardon when Trump leaves office.

Roger Parloff: You talk in the article about something you call accelerants. Can you describe what you mean by that?

Lee Kovarsky: Sure. So the article identifies three things that are making this problem worse than it might otherwise be, and accelerants is just like a fancy sounding name I have for that.

Roger Parloff: Gasoline on the fire

Lee Kovarsky: Yeah exactly.

Roger Parloff: Okay.

Lee Kovarsky: The first thing is political polarization. And again, if you go back to the founders, their basic idea was that this kind of problem didn't need a legal solution because there was a political one, and that someone who did this wouldn't risk their reputation. They would get impeached. There would be other downstream consequences involving political blowback.

But that feedback loop doesn't work when the electorate is so polarized.

And so almost every action undertaken by the administration is zero sum. Right? And to remove a president, you know, you need a giant, super majority in the Senate and you're just never reach that point. And if the president's party has the house, there's also really no chance of impeachment to begin with.

And so, you know, that makes this problem that much worse because the political fallout isn't as bad as the framers assumed.

Roger Parloff: I mean, I don't know the extent. I think that some of the language you quote you know, it's sort of quaint. They also think that people won't be that bad, you know?

Yeah. There's sort of a sense of shame, a sense of honor. You know, the people that are gonna get elected, they really aren't gonna be as bad as this, but

Lee Kovarsky: No, I mean, President Trump is a black swan for our constitutional order. It's just his entire existence. And modus operandi defies the expectations and assumptions that went into how we went about building our institutions.

And, you know, this is just, but one example of that, it's just a particularly vivid one. The other reasons that it's worse, that it, that might have otherwise been is you know, another one is the Supreme Court's Trump versus United States. The, you know, the immunity decision, which basically said to the president like, look, no matter what happens, you can't face any criminal or civil liability for use of the pardon power.

Basically what the court did in that case was draw circles with larger and larger areas around one another. But the part that was in the bullseye that was like the place where there can be no liability, civil or criminal whatsoever, was consistently characterized as including a pardon in power.

And so that sent a very clear message to President Trump that he could do whatever he wants with his pardons and. That sensibility has very clearly underwritten his way of talking about the pardon power, you know, and you can almost hear him saying, the Supreme Court told me I could do whatever I want here

Roger Parloff: On Trump versus United States, A side question I've read footnote three, I don't understand it. Would an out and out clear-cut sale of a pardon, buy him, you know, for money.

Is that illegal? Is that something he could ever be prosecuted for?

Lee Kovarsky: It's clearly illegal. But the second question, could he be prosecuted for it? I don't think so. Footnote three of that opinion is inscrutable. Many people have tried and failed to explain what earth it means. I can't tell you. You know, I follow that case closely.

I commented on it. Extensively publicly in both academic and public press. You know, and we're still not sure exactly what it, but even if there's some outlier scenario in which a president could be prosecuted on a bribes for pardons exchange, it's, would involve a factual scenario that's just not realistic because it would have to be like so brazen, like even more brazen than the stuff Trump is.

Like, you'd have to walk onto the set of Morning Joe and deliver Trump a check of, you know, $300 million and then you have to hand over you know, the pardon certificate to you, you know, and so, no, I don't think there's ever a realistic chance of him being prosecuted for use of pardons in any way, shape, or form.

Roger Parloff: Or any other president, but, and then you were about to mention a third accelerant. I think I, oh

Lee Kovarsky: yeah. And the third accelerant is a little mathy, but the idea is just that the leverage I call the leverage spiral, and I—Basically it's self-compounding because when someone transgresses to commits crime the presidential patron acquires leverage over that person.

And because the presidential patron acquires leverage over that person, they're able to use that leverage to induce more crime. But more crime begets more leverage, which begets more crime, which begets more leverage. And you see where this is going, right? Mm-hmm. And when you have four years of this, you have folks who are knee deep and pretty serious criminality and they owe the president a lot.

And it's sort of scary to think about what they'll do to make sure that they can get their pardon because desperation is dangerous.

Roger Parloff: So what, if anything, can we do about this? And obviously amending the constitution is not on the table.

Lee Kovarsky: Yeah. I have to say, I really dislike discourse that is like, oh, well, let's amend the Constitution, which is like totally unrealistic. And in my view, not, I mean, not even worth talking about as anything other than just like a thought experiment. So there's three things that. But there's a, you know, there's sort of a 1A and the 1A is really protect state prosecutions.

And specifically it means encouraging states to prosecute crimes committed by loyalists, including loyalist administration officials. And allowing states to do that is gonna require not only initiative on the part of the states, but also, it's gonna require us to rethink some of our immunity doctrines so that they're a little bit cleaner.

And it's a little bit clearer exactly what type of criminal misconduct, particularly when committed by an official, is eligible for a state prosecution. But people tend to think that you inherently can't prosecute a federal official if they're operating under color of federal law, and that's just not accurate.

And so allowing states to prosecute will provide some of the correcting incentive that's not there when Trump is taking away the threat of a federal criminal sanction through his use of patronage pardons.

Roger Parloff: The cases might be still transferred to federal court, but you could continue them in some cases.

Lee Kovarsky: In all cases, if they're state prosecutions. Ordinarily, the state prosecutors will continue to be the prosecutors, and they're still considered offenses against the state. They're not offenses against the United States just because they're heard in a federal court. As a result, Trump loses two of the levers that he's ordinarily has, in order to exercise his leverage.

Number one, he's not controlling the prosecutors 'cause they're state prosecutors. Number two, he doesn't have the pardon power because it's an offense against the state, not an offense against the United States, and the pardon power doesn't cover that.

Roger Parloff: And a lot of these crimes would be occurring in the District of Columbia.

Does he fully control those?

Lee Kovarsky: So he fully controls criminal prosecutions in the District of Columbia. So the District of Columbia presents a somewhat unique problem because in every other jurisdiction in the United States, there's two sovereigns with criminal laws that operate. And so, if states are willing to prosecute where the Feds aren't, then there's an entity to step into the breach and provide the correcting incentives that the president is taking away through his abuse of DOJ and the pardon power.

That's not true in the District of Columbia. So I think there's sort of two ways around that problem. One way is to load up on civil enforcement because the president doesn't control that.

Roger Parloff: Just one other, one question before we get to civil. The D.C. code crimes, local crimes in D.C., although this isn't really probably what we're talking about, but for the most part, can he pardon a D.C. code crime?

Lee Kovarsky: Virtually everybody thinks yes.

Roger Parloff: Okay.

Lee Kovarsky: In other words, it's not just federal crimes that are federal crimes everywhere that occur in D.C. that he can pardon. He can also pardon crimes that are D.C. local offenses.

Roger Parloff: Like a rape in D.C. You could pardon that.

Lee Kovarsky: Yes, exactly.

Roger Parloff: Okay.

Lee Kovarsky: Now I will say the outer registers of that power aren't quite as clear as one might hope, but most of us who follow this think yes he can.

I mean, in fact, I think yes he can, and I'm, you know, obviously that's contra my interests, but—

Roger Parloff: Right.

Lee Kovarsky: So, you know, loading up on civil enforcement is one way to deal with the D.C. district problem because the threat of a civil penalty can be a pretty hefty incentive, even if there's no specter of jail time.

The second thing that one might do to deal with the D.C. problem is think seriously about conspiracy prosecutions because, you know, if the offense involves people working from other states, then a state conspiracy prosecution can go forward in any state where an overt act and furtherance of the conspiracy occurred.

So even if some of the folks are working out of D.C., if they're engaged in a criminal conspiracy that has spokes and hubs in other places, then they're vulnerable to prosecution there, but we have to be careful with that, right? Because encouraging a broad power to prosecute conspiracy of you know, especially federal officials in the states could be abused just like the president pardon is.

Roger Parloff: Yeah. What about after Trump, suppose there is an after Trump is the problem over or?

Lee Kovarsky: Yeah. You know, presidential power is perpetually accreting, you know, once what administration asserts a power to do something, it has a way of worming its way into the presidential portfolio.

Now, I don't think that a coalition of Democrats or even a different coalition of Republicans would be quite as brazen in their use of pardon power. But I do think that, sort of more adventurous use of the pardon power, is here to stay again, not the six sigma outlier use of the pardon power that Trump deploys necessarily.

It's easy for me to see someone who picks up the Trumpist mantle using the pardon power in a similar way. It's easy for me to see an administration of any type granting broad pardons to outgoing administration officials so that they don't face the threat of prosecution from a subsequent administration.

And so even when administrations aren't self-consciously undertaking the sort of malfeasance that Trump is engaged in, I still think that this type of abuse is likely here to stay because the polarized electorate isn't getting depolarized anytime soon. So the political penalties for this type of stuff just aren't there.

Roger Parloff: Let me just, before we close ask you a couple odds and ends that aren't really maybe on point, but I'm just curious. Maybe other people are.

Biden's pardons to his son and the prospective pardons to people that hadn't been charged yet with anything, the January 6th committee people, were those a mistake?

What's, what are your thoughts?

Lee Kovarsky: Well, I don't wanna paint with a broad brush there. I understand why President Biden gave a pardon to his son, but like, I think it's a mistake. You know, I don't, it wasn't a patronage pardon? It wasn't, he didn't give the pardon to his son to communicate to like other sons.

Roger Parloff: All his other sons, they're freed!

Lee Kovarsky: You know, he's not—it doesn't have that communicative function. And frankly, the same is true of the perspective pardons he gave to, you know, Fauci and the rest of the administration officials as well. Those weren't meant to communicate to future folks to do something bad on Biden's behalf.

And I don't think that those pardons were a mistake because I do think that those folks hadn't, in fact, done anything wrong and that they would have clearly been the subject of retributive prosecution over the Trump administration.

I just don't know how one could look at the last 13 months of American governance and come to any other conclusion about what would've happened to those folks.

Roger Parloff: Well, thank you so much for coming. We're gonna have to leave it there, but I really appreciate it and it's a great article, which we'll—we don't know exactly when it comes out, but it's gonna be in the Duke Law Journal, so, we'll look for that.

Lee Kovarsky: Coming to theaters near you.

Roger Parloff: Yeah, exactly. Thanks Lee.

Lee Kovarsky: Thank you.

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Rational Security, and serves as Lawfare’s Director of Audience Engagement. Previously, she was Co-Executive Director of Virginia Civics and Deputy Director of the Center for the Constitution at James Madison's Montpelier, where she worked to deepen public understanding of constitutional democracy and inspire meaningful civic participation.