The Constitutional Significance of the Santos Clemency
The threat to Congress’s checking function by a politicized justice system—and the need for reform.
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In commuting the sentence of former Republican Congressman George Santos, who had served less than three months of a seven-year sentence for pervasive financial fraud, Trump leaned heavily into partisan politics. In a post announcing the commutation, he commended Santos’s Republican voting record and, without apparent connection, pointed to a Democratic senator’s misrepresentation of his military service some years ago. The press so far has largely covered the low politics—a commutation keyed to party affiliation—reflected in this explanation.
But there is a more serious problem presented by a president’s exercise of the pardon power when the decision to grant or withhold mercy involves a member of Congress. Particularly in an administration that has weaponized criminal law enforcement, singling out the president’s enemies for investigation and prosecution, the use of the pardon power in the Santos case adds another tool that the president can use to bend Congress to his will. The president can prosecute his foes and also, for all practical purposes, immunize his friends—or, in either case, he can try to pressure foes into friendship.
Presidents are not required to explain their pardons or commutations, though as a matter of norms and practice, they normally do. In commuting the Santos sentence, Trump chose a particular message for clemency where there was no miscarriage of justice and 105 members of his own party had joined their Democratic colleagues in voting to expel him from Congress in 2023. Santos—a self-proclaimed Trump loyalist—has appealed to that loyalty in seeking mercy. Following his sentencing earlier this year, Santos began publishing declarations to this effect as he pressed for clemency: “A lifelong Republican and a proud believer in your America First vision, I never wavered,” he wrote in a plea addressed to Trump. “Supporting you wasn’t just a political decision — it was personal. It was rooted in my conviction that you were the only leader who truly put this nation, and her people, first.” In announcing the commutation, Trump stressed this lifelong Republican commitment, linked in Santos’s appeal to his belief in Trump, as evidence of Santos’s “Courage, Conviction, and Intelligence” and a basis for clemency.
Presidents before Trump have made controversial use of the pardon power, but none for such openly avowed political purposes. As Jack wrote toward the end of Trump 1.0, in November of 2020:
“[O]f the 41 people who received pardons or commutations (or both) from Mr. Trump, 36 (or 88 percent) have a personal or political connection to the president. They advanced an aspect of Mr. Trump’s political agenda, knew the president personally (or had a connection to someone close to him), were someone he learned about on television (usually on Fox) or a celebrity he admired. By contrast, only five of Mr. Trump’s pardons lacked a personal or political connection and appeared to be vetted through the traditional Justice Department clearing process.”
Jack concluded that “No president has come close to using the pardon power in such persistently self-serving ways.”
Trump has long insisted that he can do as he wishes with the pardon power, that this constitutional power is “complete.” This is an overstatement. For example, a president may not be immune from criminal liability if he uses a pardon or commutation in the commission of a bribe, or if he uses it to suborn perjury in a scheme to obstruct justice. As Jack and I discussed in detail in our book on reform of the presidency, in a chapter devoted to pardon power reform, Congress could amend the criminal law to settle questions about its application to this conduct.
But the decision to make aggressively political use of the pardon power—granting or withholding clemency as one means of solidifying his party’s members’ fidelity to him or his program—is not remediable at law. The norms that historically grounded the use of the power to “mitigate injustices in individual cases” or to “serve the public policy aim of ‘restoring tranquility’” in a turbulent national politics were just that: norms only. A president who politicizes the use of the power, as Trump has done in Trump 1.0 and is doing yet again in this second term, is legally free to do so, and he is accountable only to the electorate.
Those inclined to defend Trump from this criticism might point to President Biden’s preemptive pardon of the members and staff of the House’s January 6 Committee. But on the other side, one could argue—in my view, rightly—that Biden acted in anticipation of weaponized prosecutions in a second Trump term. In other words, he acted to protect against weaponization, not to pursue it. And what he perceived as a grave risk in Trump 2.0 has indeed come to pass.
This aggressively political use of the pardon power is especially potent when combined with this president’s embrace of weaponized prosecutions. In directing the Department of Justice to bring charges against his politically chosen targets, Trump faces potential defenses of selective enforcement, which impose some constraints if not on the launch of the prosecutions, at least on their eventual success. Yet Trump also understands that the prosecutions themselves achieve much of what he might hope to accomplish: the high costs and burdens of being prosecuted, irrespective of the outcome. By contrast, the pardon power, used in service of the same political program, is not subject to any legal limits on its effective exercise for this purpose.
So far, the president’s weaponized prosecutions have not—unlike his use of the pardon power—included a member of Congress, former or otherwise. But only so far. Reports indicate that the department is considering a case against one of Trump’s most despised foes, Democratic Senator Adam Schiff. According to this reporting, Attorney General Bondi has appointed a “special attorney,” Ed Martin, to examine a potential charge—just as he was apparently involved in the development of the case eventually brought against another Trump political target, New York State Attorney General Letitia James. Martin, “the most openly politicizing and weaponizing figure in the most politicized and weaponizing department in our history,” who could not muster the votes needed for confirmation as U.S. Attorney for the District of Columbia, also happens to be the administration’s Pardon Attorney. And as already established by the prosecutions of James and former FBI Director James Comey, these prosecutions are firmly in the hands of those who will carry out Trump’s wishes, while career prosecutors who balk at the president’s direction are shunted to the side or fired.
The risks to Trump’s congressional opponents from these weaponized prosecutions, or even the threat of them, are clear—as are the benefits he can bestow on those who stand with him, rather than against him. These advantages include the effective immunity from federal offenses provided by exercise of the pardon power. On matters of the utmost importance to him, when Congress’s role is significant or even central, the powers to prosecute and to grant clemency can exacerbate the already major problem of a supine legislature. It is not hard to imagine such matters: forestalling a House vote and taking related actions to prevent the release of the Epstein files, or whatever efforts he might demand of his party to block Democratic recapture of the House majority in the 2026 midterm elections. A president’s ability to offer immunity to any and all who support him, however he may direct their involvement, is an extraordinary expansion of the control he may seek to exercise over the legislature.
The pardon power is clearly in need of reform. Important parts of this reform, like clarifying that the bribery laws apply to the illicit use of pardons, can be accomplished by statute. Congress can also act to strengthen the uncertain legal protections against a president pardoning himself (though the scope of any such measure is complicated by the Supreme Court’s decision on presidential immunity). The specific problem posed for the system of constitutional checks and balances by the politicized exercise of the pardon power, however, will require constitutional change.
Potential directions for constitutional reform could include prohibiting the president from pardoning or commuting the sentence of any sitting member of Congress or granting clemency to a former member who was convicted of the offense within a specified number of years of service in the body. Or the Congress could be empowered to disapprove of a pardon or commutation, rendering it null and void, by a supermajority vote.
Of course, as the pardon power is only part of the overall collapse of the norms against weaponization, consideration of constitutional change to impose constraints on executive domination of the Congress will have to include the other part: the power to direct prosecutions. Hard thinking on the shape of both lines of reform is useful, increasingly urgent, even if it is not easy to see now when the opportunity for constitutional reform arrives. It could arrive sooner than many believe.
Note to readers: This piece has been updated to reflect that the act of clemency granted to George Santos was a commutation of sentence, not a pardon. The title and relevant references in the text have been revised accordingly.