“Patronage Pardons”

The title of this post is the title of this notable new paper now on SSRN authored by Lee Kovarsky. Here is its abstract:

Abuse of presidential pardon power is taking a new and frightening turn. The Donald Trump administration is using clemency, including pardons, to signal impunity to regime allies contemplating misconduct.  Such clemency has a predictable effect: it induces loyalist crime by reducing the expected penalty.  “Patronage pardoning” refers to the clemency practices that power this loyalty-for-protection exchange.  Those practices pose a grave threat to the rules-based constitutional order, and they are the subject of this Article.

Some historical observations predicate the diagnostic and prescriptive arguments that come later.  Most importantly, the Framers concentrated federal pardon power in the president because they believed that impeachment and infamy would deter wholesale abuse.  The Supreme Court has long acquiesced to the Framers’ vision, fortifying the presidential power against legislative regulation and judicial review.  The preferred concentration always entailed some corruption, but the corrupt pardons of earlier eras were sources of shame — not carefully staged communication to the broader political community.

Patronage pardoning is different, as its central function is to broadcast the return on loyalty.  The clearest example is clemency for the January 6 insurrectionists, but the Trump administration has used pardons before and since to publicly communicate its willingness to use power to protect allies.  That communication induces loyalist crime from civilians and federal officers alike, which threatens the rule of law.  There are aggravating conditions too: (1) political polarization extinguishes the checking effect of impeachment and infamy; (2) corrupt pardons now seem constitutionally exempt from prosecution; and (3) there is a vicious cycle in which offending begets more leverage and leverage begets more offending.

There is no magical response, because concentrated pardon power is too encased in the tradition of American constitutionalism.  There are nevertheless three broad strategies to minimize damage to the rules-based order.  First, the states should be positioned and encouraged to prosecute conduct that also forms federal offenses.  Second, to corral intransigent federal officials, courts should lean into civil contempt power.  Third, and particularly with respect to misconduct in the District of Columbia, there ought to be a credible threat of civil penalties.