The Lawfare Podcast · The Lawfare Institute

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

February 27, 2026·42 min·3 clips

Trump's pardon to Scooter Libby during the Mueller probe signaled to targets: stay quiet and you'll get your pardon too.

Roger Parloff of Lawfare interviews Lee Kowarski, an endowed chair professor at the University of Texas School of Law, about his forthcoming Duke Law Journal article on patronage pardons. Kowarski defines a patronage pardon as one that serves a dual function: sparing a recipient from criminal punishment while also communicating to potential future transgressors that loyalty to the president will be rewarded with legal protection. The conversation begins with constitutional foundations. Article 2 grants the president broad clemency power including pardons, commutations, reprieves, and fine reductions. Some founders worried about abuse, but concerns were overridden by assumptions that shame, infamy, and impeachment would provide political checks. Those assumptions no longer hold. Kowarski traces the practice through Trump's first term. The Arpaio pardon, Trump's very first, rewarded the sheriff's criminal contempt for violating an order to stop harassing Hispanic people near the border, sending a message to other law enforcement. The Scooter Libby pardon, granted during the Mueller investigation, signaled to Flynn, Manafort, and Stone that silence would be rewarded. All three subsequently received pardons. The second term opened with maximalist clemency for approximately 1,583 January 6th defendants on day one, despite Trump having no knowledge of individual cases. Kowarski argues the speed and publicity were deliberate communication to future potential vigilantes. Additional pardons have been transactional: Ross Ulbricht of Silk Road to secure libertarian support, the Binance chair to strengthen crypto community ties, and Giuliani and others who faced no real federal jeopardy but received pardons as public demonstrations of loyalty protection. Three accelerants make the problem worse than the founders imagined. First, political polarization eliminates the political feedback loop that was supposed to check abuse, since impeachment requires supermajorities. Second, the Supreme Court's Trump v. United States immunity decision drew concentric circles of protection with pardons firmly in the untouchable core, making even the sale of pardons effectively unprosecutable. Third, a leverage spiral operates where each pardon gives the president leverage over the recipient, inducing more misconduct, which creates more leverage. Kowarski argues the most viable remedy is strengthening state prosecutions. State crimes are not offenses against the United States and therefore fall outside the pardon power. Even cases transferred to federal court can proceed with state prosecutors and remain state offenses. The District of Columbia presents a unique problem since the president likely can pardon DC code crimes and controls the local prosecutors. Workarounds include civil enforcement and conspiracy prosecutions with overt acts in other states. Kowarski concludes that more adventurous use of pardon power is here to stay regardless of who holds office, as presidential power perpetually accretes.

Listen to the show on

Apple Podcasts Spotify

Play clips from this episode More from The Lawfare Podcast