If American democracy survives the ravages of Trump’s presidency, those who follow in its wake will face the daunting task not just of repairing the immediate damage, but also shoring up the structural weaknesses in the American system to prevent similar abuses in the future.
The challenge seems almost too monumental to contemplate, especially given that partisan trench warfare makes large structural changes to the system difficult. That said, the president’s abuse of the pardon power may be one issue that is both so obviously in need of reform and potentially prone to abuse by all future presidents, that reform should be achievable across party lines.
To date, Donald Trump has issued an astonishing number of pardons across his first and second terms, often without the traditional consultation or advice from the Justice Department and the FBI. Trump’s pardons have included all of the January 6th rioters, as well as numerous individuals convicted of public corruption. Often these pardons appear to have been a product of direct bribes to the president’s election campaigns himself; in other cases, the recipients were donors or friends of donors; and, of course, many of them had committed crimes in direct support of Trump’s attempts to overthrow democracy itself. Just last week, The Wall Street Journal reported that in 2025, an investment firm tied to the United Arab Emirates purchased nearly half of the Trump family’s cryptocurrency company. Soon after, the Emirati government secured an agreement with the Trump administration for the export of hundreds of thousands of advanced chips which had previously been withheld for national security reasons.
Part of what has rendered the United States so vulnerable to Trump’s systemic assault is that much of the stability of American governance has been predicated as much on norms as on legal rules. Many of those norms must be codified into law.
But America’s democratic backsliding in the Trump era is also a product of the Executive Branch’s direct flouting of the law. The Trump Administration has repeatedly violated laws and direct judicial orders (sometimes to be rescued later by the Supreme Court, sometimes not) without penalty or consequence. This is because 1) the framers of the Constitution did not anticipate that a man of such ill character as Trump would gain office (the Electoral College was supposed to prevent such a thing), but also 2) they expected that a lawless Executive would be countered by a Legislative Branch that jealously guarded its power as a coequal branch.
One consequence of the devolution of the conservative movement into a cult of personality around Donald Trump is that almost no Republicans remain who dare to challenge the president. The framers expected that a president who so avariciously abused the pardon power would be impeached. But Republicans in Congress refuse to fulfill their constitutional role.
Meanwhile, the pardon power in the hands of a ruthlessly criminal president is the skeleton key to a dictatorship. So long as his allies in Congress refuse to impeach, a criminal president could repeatedly, openly and intentionally violate the law and order his accomplices to do likewise, with promises of infinite pardons to follow. Only the threat of state-level prosecutions might dissuade his minions, but many of the worst crimes Executive Branch officials can commit are covered more by federal law than state law. The pardon power, combined with the Supreme Court’s ruling that a president has immunity for all “official acts” conducted while in office, functionally allows a president to rule as a tyrant.
So the power itself must be curtailed.
Because the pardon power is found in the Constitution itself, revising it would require a Constitutional amendment. Those are typically waived off as impossibly difficult lifts, given that they require two-thirds of Congress and ratification by three-fourths of states.
But this is one case where bipartisan outrage might render the seemingly impossible possible. President Biden’s pre-emptive pardons of his immediate family were somewhat understandable given Trump’s promise to abuse the Justice Department for political vendettas, but they were also clearly outside of the normative expectations for presidential pardons. The way to address potential abuse of the Justice Department by incoming president is not to grant plenary pardon power to the current president to protect their inner circle.
If Trump somehow leaves office in a peaceful transition of power, he will almost certainly go out the door pardoning anyone and everyone close to him. He might even attempt a categorical mass pardon for every Executive Branch employee during his term, including and especially those in ICE, Border Patrol and Homeland Security. This is particularly salient right now as ICE and Border Patrol commit increasingly shocking abuses in Minnesota, knowing that they will likely receive federal executive pardons and that state governments are unlikely to risk open confrontation with the federal government by arresting federal officers for state crimes. Meanwhile, if a Democratic candidate succeeds him as president, Republicans will certainly fear what the next holder of the Oval Office might do with their pardon power. Democrats would be outraged over Trump’s abuse of the power. Republicans would want to constrain the next Democratic president.
That combination of incentives could lead to a bipartisan agreement to mandate structural reform.
Progressives will, of course, argue that the pardon power is essential to rectify abuses of the justice system in egregious cases. This is true and an unfortunate side effect. That said, few other democracies give their chief executive such unlimited authority to grant pardons.
Many suggestions have been made as to precisely how to reform the pardon power. Washington Monthly’s own Garrett Epps recently reviewed Saikrishna Prakash’s book The Presidential Pardon, which listed a few: pardons could be overridden by Congressional veto; a president could be barred from signing any pardons between Election Day and Inauguration Day; some offenses might be might unpardonable; family members could be barred from pardons, and so on. Sadly, few of these provisions seem likely to prevent Trump from hypothetically pardoning all federal officials in his entire administration throughout the Pentagon, ICE and Border Patrol for any and all actions. It is likely that a stricter limit would be required to prevent a de facto unaccountable dictatorship.
Representative Steve Cohen (TN-09) has introduced a weightier measure that would bar the president from pardoning themselves, any family member, any member of the president’s campaign or administration, anyone who benefited the president personally for pecuniary or corrupt reasons, and anyone carrying out crimes ordered by the president. That seems to be a more effective approach to prevent the worst possible abuses of the pardon power.
But regardless of the details of the solution, it seems clear by now that in order to prevent future Trump-like attacks on constitutional democracy, the Constitution will need to be reformed to limit the power of the Executive Branch—including and especially the pardon power. It’s not too soon to begin building momentum for ratification in Congress and the states to make it happen.
