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

Summary

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Lawfare Podcast Daily: "Patronage Pardons" with Prof. Lee Kovarsky

Release Date: February 27, 2026
Host: Roger Parloff, Senior Editor at Lawfare, with Ben Wittes
Guest: Prof. Lee Kovarsky, University of Texas School of Law
Episode Focus: An in-depth conversation on ‘patronage pardons,’ a novel concept pioneered by Professor Kovarsky to describe a feature of the Trump administration's approach to presidential clemency.

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Episode Overview

This episode centers on the evolving—and, in many ways, unprecedented—use of the presidential pardon power by Donald Trump, particularly as it has shifted from historically private or shameful acts of clemency to a deliberate, public communication designed to reward, incentivize, and protect political loyalty and future criminality. Professor Lee Kovarsky presents and discusses his new article, “Patronage Pardons” (Duke Law Journal), explaining the concept, its constitutional context, historical precedents (or lack thereof), and implications for the American justice system.

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Key Discussion Points and Insights

1. Defining "Patronage Pardons"

• Concept: A “patronage pardon” isn’t simply a traditional act of mercy for someone punished, but a form of political communication—a ‘loyalty for protection racket’ intended to shield allies and signal incentives to those considering transgressive acts in service of the president. (05:57)
  • Quote: “...it also operates as a form of communication to people who might be contemplating transgression on behalf of the president’s behalf...” — Lee Kovarsky [02:57]
• Function: These pardons not only excuse but may induce criminality and other misconduct undertaken on the president's behalf. (03:46)

2. Historical Context and Constitutional Foundation

• Constitutional Authority: Article II, Section 2, Clause 1 grants the president broad "clemency power"—including pardons, commutations, reprieves, and fine reductions. (05:17)
  • Quote: “The pardon clause... is understood as vesting in the president clemency power.” — Lee Kovarsky [05:17]
• Framers’ Concerns: The founders were aware of possible abuse, expecting political checks (shame, impeachment), which have eroded in hyper-polarized times. (06:11)
  • Quote: “...if a president was really going to use pardon power to advertise his willingness to support people committing offenses... 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.” — Lee Kovarsky [06:11]

3. Contrast with Past Presidential Pardons

• Earlier pardon controversies (e.g., Clinton’s Mark Rich) were typically secretive, embarrassing—"moments of shame" rather than public policy. Trump’s approach is fundamentally different in its open, strategic signaling. (09:12, 13:08)

4. Key Case Studies: Trump’s Patronage Pardons

a. Joe Arpaio (First Trump Pardon) [10:44–13:29]

• Background: Pardoned for criminal contempt after disregarding court orders not to racially profile or harass suspected undocumented immigrants. (11:10)
• Significance: Trump’s intent was public and communicative: “Hey, do what Joe did, and there’s a pardon waiting for you...” — Lee Kovarsky [11:10]
• Memorable Analogy: Kovarsky likens Trump’s approach to the raptors in Jurassic Park: “...it kind of felt like that was Trump being the Raptor, testing the fence and kind of seeing what he could get away with...” [11:10]

b. Scooter Libby [13:32–15:58]

• Background: Libby’s sentence was commuted by Bush, not pardoned (which caused a rift with Cheney). Trump later issued a full pardon, claiming he’d been “treated very badly.”
• Timing & Message: Issued during the Mueller investigation—clearly meant to signal to potential witnesses/allies like Paul Manafort, Roger Stone, and Mike Flynn.
  • Quote: “The message to them was unmistakable. This isn’t some paranoid interpretation... People who were opponents and allies of the President all read it the exact same way at the time.” — Lee Kovarsky [15:46]
  • Quote: “Stay quiet. Stay quiet. You’ll get your pardon.” — Lee Kovarsky [15:49]

c. January 6th Insurrectionists [16:06–19:06]

• Scope: On his first day in his second term, Trump issued clemency to virtually all January 6th offenders—with a handful of exceptions (commutations instead of pardons).
• Intended Effect: Acts as a public advertisement of “protection waiting... at the end of any adverse criminal consequence” for those acting in Trump’s interest/movement. (16:29)
  • Quote: “...he wanted to do this quickly and publicly again to communicate to people who might contemplate transgression... that if they align themselves with MAGA, then there is protection waiting for them...” — Lee Kovarsky [01:40, 16:29]

d. Other Transactional Pardons [19:21–21:20]

• Pardon grants act as a public loyalty-reward system—ranging from pardons secured for financial support to transactional deals with specific communities (e.g., Libertarians, the crypto community).
• Quote: “It’s always the pardonee’s mother gave a $1 million donation or, you know... in order to transactionally secure that support, he very publicly pardons Ross Ulbricht.” — Lee Kovarsky [21:12]

e. "No MAGA Left Behind" Slogan [29:10–31:42]

• Trump-appointed pardon attorney Ed Martin popularized the phrase with Twitter posts, underlining the new, explicit loyalty-driven logic. (29:36)
• Notable Moment: “That’s Trump using the power to say to people... they weren’t going to leave any MAGA behind.” — Lee Kovarsky [29:36]

5. Impact on Government and Legal Culture

• Behavioral Effects: The steady promise of a pardon undermines enforcement and emboldens further rule-breaking by administration allies, confident they’ll be shielded. (15:17, 33:49)
  • Quote: “...none of these people are all that worried about disobeying court orders, about ignoring rules... because they know they’re going to get a blanket pardon...” — Lee Kovarsky [02:15, 33:49]
• Combined with DOJ Weaponization: Pardons reinforce a broader “reward friends, punish enemies” approach, including the refusal or targeting of prosecutions depending on political allegiance. (31:51)

6. Accelerants Making Patronage Pardons Worse [35:05–40:27]

• Political Polarization: Diminishes any realistic prospect of political accountability or impeachment. (35:05)
  • Quote: “...the electorate is so polarized. And so almost every action undertaken by the administration is zero sum...” — Lee Kovarsky [35:05]
• SCOTUS Immunity Decisions: Trump v. United States effectively immunizes presidents for how they wield pardon power. (36:51)
  • Quote: “No matter what happens, you can’t face any criminal or civil liability for use of the pardon power...” — Lee Kovarsky [36:51]
• Leverage Spiral: Each transgression increases presidential leverage over allies, making further criminality more likely as the stakes and desperation grow. (39:36)
  • Quote: “More crime begets more leverage, which begets more crime, which begets more leverage. And you see where this is going...” — Lee Kovarsky [39:36]

7. Possible Solutions and Limits [40:27–45:36]

• Constitutional Amendment: Unrealistic (“not even worth talking about”). (40:36)
• State Prosecutions: Protect/encourage states to prosecute loyalist misconduct, as federal pardons cannot cover state crimes. (40:36–42:40)
• D.C. Specifics: Trump controls D.C. prosecutions (including local offenses), so civil enforcement or conspiracy prosecutions in other states may be necessary as alternatives. (42:50–45:36)

8. Enduring Effects & Looking Forward [45:36–47:15]

• Presidential Power “Accretes”: Once boundary-breaking use of the pardon is normalized, successors might not be as brazen as Trump, but the expanded scope is unlikely to disappear. (45:45)
  • Quote: “But I do think that sort of more adventurous use of the pardon power is here to stay.” — Lee Kovarsky [45:45]

9. Non-Trump Examples

• Biden’s Pardons: Examples such as his pardon for his son or the “prospective” pardons for COVID-19-era officials lack the communicative, loyalty-inducing element and therefore are not “patronage pardons” in this sense. (47:45)
  • Quote: “It wasn’t a patronage pardon… it doesn’t have that communicative function.” — Lee Kovarsky [47:45]

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Notable Quotes & Memorable Moments

• On the unique shift under Trump:
  “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.” — Lee Kovarsky [09:12]

• On the Arpaio pardon as signaling:
  “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.” — Lee Kovarsky [11:10]

• On the "No MAGA Left Behind" slogan:
  “That’s Trump using the power to say to people... they weren’t going to leave any MAGA behind.” — Lee Kovarsky [29:36]

• On the self-perpetuating risk:
  “Desperation is dangerous.” — Lee Kovarsky [40:27]

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Key Timestamps

• Definition & Constitutional Context: 02:57–06:11
• Contrasting Historical Pardons: 09:12–13:08
• Joe Arpaio Pardon: 10:44–13:08
• Scooter Libby & Mueller Investigation: 13:32–15:58
• January 6th Pardons: 16:06–19:06
• Transactional/Other Pardons: 19:21–21:20
• "No MAGA Left Behind" & Ed Martin: 29:10–31:42
• Impact on Administration Behavior: 33:13–34:58
• Accelerants Discussion: 35:05–40:27
• Possible Remedies: 40:27–45:36
• Long-term Outlook: 45:36–47:15

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Concluding Thoughts

Professor Kovarsky delivers a trenchant, well-documented diagnosis of how the Trump era redefined and weaponized the pardon power—moving from acts of private shame to public, systemic incentives for lawbreaking in service of a political movement. The pattern likely sets a durable—if troubling—precedent for future presidencies, with solutions hindered by polarization and structural limits.

Look for Prof. Lee Kovarsky’s article, “Patronage Pardons,” in an upcoming issue of the Duke Law Journal.

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Transcript

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[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.

[Ben Wittes]

It's the Lawfare podcast.

[Roger Parloff]

I'm Roger Parloff, senior editor at lawfare,

[Ben Wittes]

and I'm with Lee Kavarski, 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 going to be prosecuted by the Trump Justice Department. And another piece of it is probably because they know they're going to get a blanket pardon when Trump leaves office.

[Ben Wittes]

Today we're talking about patronage pardons that is pardons that a president grants in order to excuse and maybe even induce

[Roger Parloff]

criminality by his political supporters.

[Ben Wittes]

So, Lee, you have a very interesting

[Roger Parloff]

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 pardons as powering a system of patronage, basically a kind of loyalty for protection racket 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 the 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, 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 practice has accelerated during the second term. But Trump 45, was doing this. He started off. The very first pardon he gave was actually to Sheriff Joe Arpaio, and it was a very 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 2, Section 2, Clause 1. The President shall have power to grant reprieves 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 vesting in the president, clemency power. And clemency is the power to pardon, that is 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 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, the founders assumed there was a political check on this type of development that just isn't there anymore.

[Roger Parloff]

Right.

[Ben Wittes]

And some of them might have thought

[Roger Parloff]

there was a criminal check too, didn't they think?

[Lee Kovarsky]

Right, right, 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, 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 constraints on the part of power.

[Ben Wittes]

Have we seen it before, before the first Trump term in US 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, like Mark 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. And 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 difference between current political conditions and political conditions during administrations. Prior.

[Ben Wittes]

Yeah. And let me just.

[Roger Parloff]

This is a little bit of an aside, but it comes up a lot when I think about the Trump administration.

[Ben Wittes]

It's the word corrupt.

[Roger Parloff]

I have two hesitations about when I can use it, and not one is, does it need to be mercenary? Because 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 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. This pardon to this really horrible person, or should you be exercising this executive power in a way that seems deeply morally questionable? And his response is just like, well, I'm allowed to do it. 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 a power that anytime you exercise it, it's good or moral or acceptable or desirable. You know? 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.

[Ben Wittes]

Well, let's go back to that Joe

[Roger Parloff]

Arpaio pardon in his first term.

[Ben Wittes]

It was 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. Okay, 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 kind of 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 away 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 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, it's 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.

[Ben Wittes]

And then staying with the first terms

[Roger Parloff]

for the moment, you also mentioned the Scooter Libby pardon, which is an interesting one to focus on on. Tell, tell us what you see in 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]

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 1 administration and Trump grants 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 crosshairs of the 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 President 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 that they should, if they

[Roger Parloff]

stay quiet, they'll be taken care of.

[Lee Kovarsky]

Yeah, stay quiet. 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 got his pardon.

[Lee Kovarsky]

Yeah, yeah, yeah.

[Ben Wittes]

So let's move to the second term.

[Roger Parloff]

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 1583, 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 that 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 promise 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. But 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 contact, 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.

[Ben Wittes]

Yeah. And this was, again, day one.

[Roger Parloff]

I think, of the scummy pardons like Mark Rich. I think of them as the last day of your term. But this is day one. It's sending a message.

[Lee Kovarsky]

Yeah. I mean, people love to talk about the Mark 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 President thought they had to do or wanted to do, but didn't necessarily want to advertise. But 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 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 in what

[Ben Wittes]

they did and beyond, that they were

[Roger Parloff]

right, but that as long if they do it again and it's for him, you know, it's going to be okay. Since then, have there been others that

[Ben Wittes]

you would categorize as patronage pardons or

[Roger Parloff]

other events like this?

[Lee Kovarsky]

Yeah, I mean, those are the most visible ones. I mean, 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. But 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 the president's pardon practices now are almost completely transactional. You look across the universe of his pardons, and it's always the pardonees mother gave a $1 million donation or, you know, this pardon me 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 had 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. You know, again, that's a way to forge a relationship with the crypto community and also seen as a sort of return on libertarian loyalism.

[Ben Wittes]

The Honduras guy, I, I'll be honest,

[Lee Kovarsky]

I don't know exactly what that's about.

[Roger Parloff]

Okay.

[Lee Kovarsky]

I, I wish I did.

[Announcer]

Yeah.

[Lee Kovarsky]

You know, and honestly, sometimes, I mean, it's, 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 transactionalism 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.

[Ben Whittes]

Hey, folks, Ben Whittes here. This episode is brought to you by the folks at Ground News. I want to talk to you about media and trust people. Listen to this podcast and read Lawfare's content because Lawfare brings people information and analysis of a particularly high quality, and that generates trust in an era when trust in news and media sources is low. Ground News is another organization that is working to create trust in media and media worthy of trust. It's an app that doesn't just bring you news on subjects you're interested in. It curates that news so that you can see information that people of your own political persuasion are likely to miss. It's not publishing its own stuff, but it's also doing a lot more than aggregating. It's identifying stories that are filling a blind spot that is pervasive for the left or for the right, for example. The app also shows you bias ratings and factuality ratings for each news organization covering a story so that you can see whether the story you're interested in is mostly being covered by news organizations of the left, right, or center. Let me give you a specific example. I just returned from Ukraine, so I was particularly interested to see how Ground News would handle stories about the war there. It flagged that an important story about deadly Russian strikes in Ukraine is being largely ignored by right wing press. On the other hand, it also flagged that left outlets are ignoring a story about Ukrainian nationals in Germany charged with trying to send parcel bombs to Ukraine at the direction of Russian intelligence. These blind spot notices are really useful as a way of seeing what information you are probably not seeing on stories of interest to you. Or consider the recent story about President Trump proposing voting reforms that demand voter ID and proof of citizenship of would be voters. The Ground News app shows 29 media organizations reporting on this story, and it shows radically different headlines associated with it depending on the ideological valence of the outlet from the Free Press Washington power struggle Jeffries moves to block Trump's plan for federal election oversight. By contrast, the Daily coast headline Republicans bail on states rights so Trump can rig elections again. You can see information about each news organization's bias tendencies and its factuality ratings. You can even see information about its ownership. I find Ground News an impressive tool for checking my own biases and the biases of the media I consume, and for seeing the news that people like me generally don't see. I encourage you to check it out. You can get Ground News's Vantage subscription for 40% off, which allows unlimited access to the Ground News app by visiting groundnews.comlaw that's groundnews.comlaw one more time. Groundnews.comlaw check it out. I really think you'll be glad you

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[Ben Wittes]

There was a pretty

[Roger Parloff]

extraordinary remark from what I'll call one of the pardons are he has a lot of different pardon people at this point but 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 is 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 and 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 at 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 Parnese, that they weren't going to 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, yeah, Tina Peters. Yeah, yeah. And 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. Right. 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 James Comey Comey, Don Lemon. 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.

[Ben Wittes]

There's also some pretty dicey conduct that

[Roger Parloff]

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 Sakat. Is it too much to speculate that that might 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. And 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 the idea behind criminal contempt is that you can be in jail and face a really, really, really hefty piece 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. And some of that's because they know they're not going to be prosecuted by the Trump Justice Department. And another piece of it is probably because they know they're going to 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. Gasoline on the fire is exactly, exactly. Okay, the first thing is, 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 going to 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.

[Ben Wittes]

I mean, I don't know the extent. I think that some of the language

[Roger Parloff]

you quote, you know, it's sort of quaint. They also think that people won't be that bad. There's sort of a sense of shame, a sense of honor. You know, the people that are going to get elected, they really aren't going to be as bad as, as this.

[Lee Kovarsky]

But 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, but just a particularly vivid one. You know, the other reasons that it's worse 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 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 andout, 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 on earth it means. I can't tell you. I follow that case closely. I commented on it extensively, publicly, in both academic and public press, and we're still not sure exactly. But even if there's some outlier scenario in which a president could be prosecuted on a bribes for pardons exchange, it would involve a factual scenario that's just not realistic because it would have to be so brazen. Even more brazen than the stuff Trump is. You'd have to walk onto the set of Morning Joe and deliver Trump a check of $300 million, and then he'd have to hand over the pardon certificate to you. And so, no, I don't think there's ever a realistic chance of evidence him being prosecuted for use of pardons in any way, shape or form or any other president.

[Roger Parloff]

But. And then you were about to mention a third accelerant, I think I agree.

[Lee Kovarsky]

Oh, yeah, and the third accelerant is a little mathy, but the idea is just that, the leverage, I call it the leverage spiral. And basically it's self compounding because when someone transgresses, 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? 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 of. 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.

[Ben Wittes]

So what, if anything, can we do about this?

[Roger Parloff]

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, we'll just demand 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 going to require not only initiative on the part of the states, but also it's going to 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 wardens.

[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 are 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 ordinarily has in order to exercise his leverage. Number one, he's not controlling the prosecutors because they're state prosecutors. 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.

[Ben Wittes]

And a lot of these crimes would

[Roger Parloff]

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 Colombia. 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.

[Ben Wittes]

Just one. One question before we get to civil.

[Roger Parloff]

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 DC Code crime?

[Lee Kovarsky]

Virtually everybody thinks yes.

[Ben Whittes]

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, like a rape in

[Roger Parloff]

D.C. he 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. That's contra my interests, but.

[Ben Wittes]

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 DC 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 power 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. But 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 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.

[Ben Wittes]

Let me just before we close, ask

[Roger Parloff]

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 6 committee people, were those a mistake? What are your thoughts?

[Lee Kovarsky]

Well, I don't want to 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. Right. He didn't give the pardon to his son to communicate to like other sons.

[Roger Parloff]

His other son,

[Lee Kovarsky]

you know, he's not. It doesn't have that communicative function. And frankly, the same is true of the prospective 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 under 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 have happened to those folks.

[Ben Wittes]

Well, thank you so much for coming. We're going to have to leave it

[Roger Parloff]

there, but I really appreciate it and it's a great article which will we don't know exactly when it comes out, but it's going to be in the Duke Law Journal, so we'll look for

[Lee Kovarsky]

that coming to theaters near you.

[Roger Parloff]

Yeah, exactly. Thanks, Lee.

[Lee Kovarsky]

Thank you.

[Ben Wittes]

The Lawfare Podcast is produced by the Lawfare Institute. If you want to support the show and listen ad free, you can become a Lawfare material [e-mail] support supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoy the podcast, please rate and review us wherever you listen. It really does help. And be sure to check out our other shows, including Rational Security, Allies, the Aftermath and Escalation, our latest Lawfare Presents

[Roger Parloff]

podcast series about the war in Ukraine.

[Ben Wittes]

You can also find all our written [e-mail] the podcast is edited by Jen Pacha with audio engineering by Kara Schillen of Goat Rodeo. Our theme song is from Alibi Music. As always, thanks for listening.

[Lee Kovarsky]

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