President Donald Trump recently raised the possibility that he might grant preemptive pardons to his subordinates at some point in the future. “I haven’t thought about it, but certainly I’d be allowed to,” he told reporters on Friday. “The presidential pardons are, they say, the most powerful thing a president has. I certainly don’t want to see innocent people go through hell.”
“I haven’t thought of it but I will tell you, it would be very unfair to go through what we went through for four years with the corrupt weaponization that took place,” he explained. “Biden shielded many people, including the Congress. If you look at what they did with Congress when they set up the special committee, which was a fraud, they all got shielded.”
Congress has immense powers of its own to protect the rule of law. The greatest power that the legislative branch can wield is the power of the purse. The president can issue whatever pardons he likes without congressional obstruction. Congress, by the same token, can and should protect the rule of law by denying all federal funds to anyone who accepts one of these preemptive pardons.
Bright-line rules are the easiest to follow: Anyone who receives such a pardon should not be able to collect any financial benefit from the Treasury for the rest of their life. They would not collect Social Security or receive the benefits of Medicare or Medicaid. They could not purchase health insurance from an Affordable Care Act marketplace or take advantage of the subsidies that it provides. The sole exception should be for tax refunds, if only to reduce the administrative burden for the Internal Revenue Service.
A person who received a preemptive pardon would be ineligible for food stamps, housing assistance, student loans, or similar federal programs. Veterans’ benefits and pensions would be forfeited. Any company that is owned, controlled, or operated by one of Trump’s “preemptive pardon” recipients would be ineligible for federal loans or subsidies of any kind. They would also be disqualified from working as a federal contractor or serving in the federal civil service. (Congress does not have the constitutional power to disqualify abusive pardon recipients from the presidency, vice presidency, or a seat in Congress.)
Many of these programs and benefits already exclude people for a variety of reasons. Even the most universal of them is not without limitations. In 2014, Congress enacted the No Social Security for Nazis Act—a rare piece of federal legislation that does exactly what it says. Under the law, anyone who “participated in Nazi persecution” before and during World War II is ineligible for Social Security benefits. This is a vanishingly narrow group of people in 2026, but the law remains on the books.
Naturally, this is strong medicine, but it is a necessary deterrent against executive-branch criminality after the Supreme Court’s presidential-immunity ruling in Trump vs. United States. Trump has aggressively and corruptly used the pardon power in the past. On the first day of his second term, he issued a mass pardon for anyone convicted of crimes related to the attack on the Capitol on January 6, 2021, thereby rewarding those who tried to violently overthrow the results of the 2020 presidential election. Other pardons during his first and second terms have rewarded sycophants and personal allies or, in some recent cases, appear to have been exchanged for bribes.
Trump is hardly the first president to use pardons in corrupt or controversial ways, of course. But he operates in a different constitutional landscape than any of his predecessors. The Supreme Court’s ruling in Trump v. United States two years ago fundamentally changed the separation of powers by inventing “presidential immunity” out of thin air, saving Trump from an imminent criminal trial. It also broke the separation of powers.
Suppose that the president wants to commit a crime. Before 2024, he and his associates may have feared potential prosecution by a future administration. The president no longer needs to fear it thanks to the Supreme Court. But presidential immunity does not extend to a president’s subordinates in the executive branch, who still face potential criminal liability if they help a president break the law.
A president who issued preemptive pardons prior to Trump v. United States could have still faced potential criminal charges himself. That deterrent is gone. Now, thanks to the president’s “absolute immunity” for any crimes committed through an “official act,” a president can use pardons to create a hermetically sealed bubble of criminality that no one—not courts, not Congress, not future presidents—can pop.
The pardon’s power comes from its scope and its permanence. A president can pardon anyone of any federal crime. Once issued, a pardon cannot be reversed or rescinded by another president, not even by the one who issued it. Courts have generally held that they have no power to reverse them either. Congress cannot nullify pardons, nor can it prevent the president from issuing them, either by statute or by creating categories of crimes for which they are ineligible. That does not mean Congress is obligated to provide taxpayer funds to a pardon’s preemptive recipients.
The ban should have three important limitations. First, it should only apply to a recipient who is pardoned of a crime without having been convicted of it. Applying the ban to all pardons would sweep up honest and corrupt acts of clemency alike. The ban’s goal is not to nullify or constrain the president’s power to grant legitimate clemency, but rather to impose costs upon those who help him commit crimes. A preemptive pardon is inherently suspect.
Second, a preemptive pardon recipient should be able to avoid the ban by refusing or forfeiting the pardon. This is essential because it would prevent a corrupt president from weaponizing the ban to cut off specific individuals from federal funds against their will. Congress could allow recipients of abusive pardons to complete this step by submitting a sworn affidavit of some kind to the Justice Department and/or to the speaker of the House’s office.
It is legally incontrovertible that pardons can be refused by their would-be recipients. In 1915, the Supreme Court issued a rare but highly relevant ruling on the nature of the pardon power in Burdick v. United States. Pardon-related rulings from the high court are rare since, by their very nature, they remove someone from the legal process. The case involved New York Tribune editor George Burdick, whose paper had published an article about someone smuggling gemstones into the country without paying customs duties on them.
Federal prosecutors hauled Burdick before a federal grand jury in Manhattan to answer questions about the smuggling. Burdick refused to testify by invoking his Fifth Amendment right against self-incrimination. President Woodrow Wilson responded by issuing a pardon for Burdick that would theoretically free him from any Fifth Amendment perils. Burdick refused the pardon and again refused to testify, at which point he was jailed for contempt.
The Supreme Court had previously ruled in the 1833 case United States v. Wilson—a different Wilson, of course—that a pardon recipient could refuse a conditional pardon. “A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance,” Chief Justice John Marshall wrote for the court. “It may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him.”
Justice Joseph McKenna, writing for the court in Burdick, held that the same reasoning for conditional pardons applied to unconditional pardons as well. “Granting, then, that the pardon was legally issued and was sufficient for immunity,” he wrote for the unanimous court, “it was Burdick’s right to refuse it, as we have seen, and it therefore not becoming effective, his right under the Constitution to decline to testify remained to be asserted, and the reasons for his action were personal.” Burdick went free.
Third, Congress should set the cutoff date for when the ban takes effect as July 1, 2024—the day that Trump v. United States was issued. No preemptive pardon issued before that date could have been issued to further a criminal conspiracy, while every preemptive pardon issued after it is inherently suspect. This would unfortunately include those who accepted pardons from President Joe Biden in the waning days of his administration. (Once accepted, a pardon cannot be later disclaimed.)
Again, Congress has no power to prevent the president from issuing pardons for federal crimes or overturn them after the fact, not even preemptive ones. What Congress can do is use its Article I powers to ensure that those who participated in Article II misconduct cannot draw any other reward from the public coffers it controls. If someone is willing to accept a preemptive pardon, Congress must ensure that it is the last benefit they ever receive from the republic.
