In a functioning constitutional democracy, allegations of corporate corruption would ordinarily invite immediate investigation. Congress would demand documents, summon executives and expose wrongdoing to public scrutiny.

With Democrats having won control of both houses of Congress, the expectation will be that they exercise these oversight powers vigorously. In Donald Trump’s America, however, there is a compelling argument for doing precisely the opposite.

If the objective is criminal accountability rather than political theatre, the incoming Democratic majorities might be better advised to preserve the evidence but postpone public congressional investigations and disclosures concerning potential criminal wrongdoing by Trump’s corporate allies until he leaves office in January 2029, thereby avoiding the possibility of presidential pardons that could place those responsible beyond the reach of federal criminal prosecution.

This may sound absurd, but it follows from the extraordinary breadth of the presidential pardon power. Under the US Constitution, a president may pardon individuals for federal crimes before they have been charged, investigated or convicted. What was conceived as an exceptional power of mercy can become an instrument for protecting political associates, wealthy benefactors and corporate executives from criminal accountability.

A Washington Post investigation published on October 26 reveals that powerful technology and defence companies that cultivated close relationships with Trump are increasingly anxious about the prospect of a Democratic Congress. Companies including Palantir, Anduril, OpenAI and Meta face possible congressional scrutiny over government contracts, political contributions and their relationships with the administration. Some executives are reportedly scrambling to establish relationships with Democratic politicians as the prospect of congressional investigations approaches.

The financial stakes are considerable. The Post reports that 15 companies backed by Trump’s sons received $3.2bn in federal contracts, investments and loans, most after Trump returned to the White House. Congressional Democrats have raised questions about potential conflicts of interest and whether politically connected companies received preferential treatment. These relationships provide legitimate grounds for investigating how public resources were allocated.

Ordinarily, such investigations would be welcomed as an essential exercise of congressional oversight. But consider what might happen if congressional hearings uncovered evidence of fraud, bribery or corruption. The findings could identify those responsible and establish compelling evidence of criminal misconduct. Trump could then issue sweeping pardons protecting the individuals concerned from federal prosecution. Investigators might succeed in exposing wrongdoing only to discover that their efforts had furnished the president with a list of people to protect.

Trump’s record provides ample reason to take this possibility seriously. His official clemency record includes pardons for individuals convicted of securities fraud, wire fraud and other financial offences. In March 2025, he pardoned Trevor Milton, the founder of electric-truck manufacturer Nikola, who had been convicted of defrauding investors. He also pardoned HDR Global Trading Limited, the corporate entity associated with the cryptocurrency exchange BitMEX. The crypto firm had pleaded guilty to violating the Bank Secrecy Act. Several individuals associated with the company also received pardons.

The pardon of HDR Global Trading deserves particular attention. Trump extended clemency not only to company executives but to the corporation itself, which had pleaded guilty to a federal offence. The consequences for corporate accountability in an era of enormous corporate wealth and political influence deserve far greater attention than they have received.

The Supreme Court laid the groundwork for this extraordinary authority in Ex parte Garland (1866). The Court interpreted the pardon power as extending to federal offences after their commission, regardless of whether criminal proceedings had commenced. Congress could not impose ordinary legislative restrictions on its exercise. The ruling effectively recognised the president’s authority to forgive federal crimes without waiting for the criminal justice system to establish guilt.

The implications are staggering. An executive might have committed fraud involving millions of dollars, or a government contractor might have secured contracts through bribery. If those offences fall within federal criminal jurisdiction, a sufficiently broad presidential pardon can extinguish criminal liability for the covered conduct. Presidential pardons cannot authorise future crimes, prevent state prosecutions or generally extinguish civil liability. Nor do they prevent congressional investigations. But the elimination of federal criminal punishment for past offences is consequential enough.

This is not simply a Trump problem. Joe Biden demonstrated the extraordinary reach of the same constitutional power when he issued a sweeping pardon to his son Hunter Biden in December 2024. The pardon covered federal offences committed or potentially committed over almost 11 years, extending far beyond the specific charges on which Hunter Biden had been prosecuted or convicted.

In his final hours in office, Biden went further, issuing preemptive pardons to members of his family and several public figures, including Anthony Fauci, retired General Mark Milley and individuals associated with the congressional investigation into the January 6 attack. Biden justified these measures as necessary protection against politically motivated prosecutions by the incoming Trump administration. His stated motivations differed from protecting corporate financial misconduct, and the pardons did not establish wrongdoing by their recipients. Nevertheless, his actions demonstrated how easily the power could be used to shield selected individuals from federal criminal proceedings without any independent determination that clemency was warranted.

The precedent should trouble Americans regardless of their political loyalties. Biden’s supporters may regard his actions as justified protection against threatened political retribution. Trump can invoke the same constitutional authority for entirely different purposes. The central difficulty is that the legal power does not depend upon the president’s motives being honourable, the beneficiaries being deserving or the public interest being served.

This brings us back to the peculiar dilemma facing congressional Democrats. Why assemble and publicise evidence of alleged criminal misconduct while the president retains the authority to pardon those implicated? Why identify potential defendants and present the allegations against them before the administration leaves office? Trump might issue preemptive pardons regardless. Indeed, he has already signalled his willingness to do so, declaring in a November 2 interview that he would protect Elon Musk and other allies facing Democratic investigations and grant pardons if necessary. A detailed congressional investigation could therefore provide him with a convenient inventory of possible beneficiaries.

This is not an argument for destroying evidence, suppressing whistleblowers or preventing investigations necessary to stop ongoing illegality. Records must be preserved, relevant limitation periods protected and unlawful practices halted. State authorities must remain free to exercise their independent jurisdiction. The narrower argument concerns the timing of public congressional disclosures that could frustrate eventual federal prosecutions. Even that limited postponement carries costs for transparency and democratic oversight.

The objection is obvious. Citizens are entitled to know whether public money has been misused and whether government contracts have been awarded improperly. Delaying disclosure may permit wrongdoing to continue, allow witnesses to disappear or give those implicated additional opportunities to conceal evidence. These are serious concerns that cannot simply be brushed aside. Yet the fact that withholding potentially incriminating findings must even be considered as a means of preserving criminal accountability exposes a troubling defect in the constitutional system.

The US Constitution is almost 240 years old. It requires fundamental reform in several respects, but few provisions illustrate the urgency more clearly than the presidential pardon power. The framers entrusted this authority to a single individual in the expectation that it would be exercised with wisdom and restraint. They could scarcely have anticipated an era in which vast corporate fortunes, political patronage and presidential power would become so closely intertwined.

The Constitution should be amended to establish meaningful limits on presidential clemency. Pardons involving the president’s family, personal financial interests or political associates implicated in misconduct connected to the administration should be subject to strict constitutional safeguards. Sweeping preemptive pardons covering years of unspecified criminal conduct also deserve reconsideration. An independent clemency commission, operating under constitutionally prescribed standards, could provide scrutiny of controversial pardons without eliminating the legitimate humanitarian purposes of executive mercy.

Such reforms would require constitutional amendment. The Supreme Court has interpreted the existing pardon power so expansively that ordinary legislation cannot simply curtail it. Article V makes constitutional change exceptionally difficult, but difficulty cannot justify preserving a power susceptible to serious abuse merely because it has existed for more than two centuries.

There are compelling reasons to retain presidential clemency. Criminal justice systems make mistakes, sentences can be excessive, and mercy has an important place in the justice system. But mercy must not become a privilege reserved for the politically connected, or a mechanism through which presidents protect their associates from the consequences of criminal misconduct.

For now, the perverse logic of the system suggests that those seeking meaningful federal criminal accountability might be wiser to postpone public exposure of potential offences until Trump leaves office. It is an astonishing proposition for a country that prides itself on the rule of law. A constitutional system in which exposing corruption can become the means of protecting those responsible is badly in need of repair.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.