The Senate Just Told Trump Not to Pardon SBF — Constitution Says He Can Anyway

One hundred senators just told the President of the United States what to do with a power
the Constitution gives him alone. Legally, that instruction is worth nothing. Politically, it may be worth everything.

That tension, between a unanimous Senate and an unreviewable Article II power, is the whole story of S. Res. 772, and it deserves a counsel's reading rather than a writer's headline.

On June 17, Senators Cynthia Lummis (R-WY) and Ruben Gallego (D-AZ) introduced a four page resolution "expressing the sense of the Senate that under no circumstances should Samuel Bankman-Fried receive executive clemency."

The sponsors are not marginal figures on this beat: they are, respectively, the top Republican and Democrat on the Senate Banking Committee's Subcommittee on Digital Assets, and two of the most important people in the effort to pass U.S. crypto market-structure legislation.

The resolution was adopted by unanimous consent on July 15. The measure declares that the convicted FTX founder should "under no circumstances" receive a pardon or commutation of his 25-year sentence, and affirms the Senate's commitment to "the rule of law and integrity of the United States financial system."

The text goes further than most sense-of-the-Senate boilerplate: Gallego and Lummis write that they "reject any characterization of the FTX prosecution as lawfare and affirm the integrity of the federal criminal justice process that produced Bankman-Fried's conviction."

The sponsors' statements were not drafted by a diplomat. "Sam Bankman-Fried is a criminal. He took advantage of millions of Americans and stole their savings," Gallego said, adding that SBF "has shown no remorse" and closing with, "Keep him locked up."

Senator Lummis added, "He had his day in court. A jury didn't buy the act, and a judge gave him 25 years for a reason."

A simple Senate resolution is not legislation. It never goes to the House, never reaches the
President's desk, and creates no legal obligation on anyone. As a nonbinding resolution, it
carries no legal force and cannot curb the president's constitutional power to grant
clemency.

That power sits in Article II, Section 2: the President "shall have Power to grant Reprieves
and Pardons for Offences against the United States, except in Cases of Impeachment."

The Supreme Court held in Ex parte Garland that the pardon power "is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders."

That case is from 1866 and it has never been walked back. This is by design: at the Constitutional Convention, proposals to require Senate approval of pardons were rejected, and Hamilton argued in The Federalist that the power "should be as little as
possible fettered or embarrassed."

Nor was the vote itself what most readers imagine. Unanimous consent is a procedure that
clears a resolution as long as not a single senator objects, no roll call, no floor debate, no
recorded yeas.

Its power is negative: any one of a hundred senators could have killed it with
a single word, and none did. So what is it, legally? Precisely what the Congressional Research Service says such measures are:

There is even a live parallel in this Congress: a resolution expressing the sense of the Senate that Ghislaine Maxwell should not be granted a pardon or any form of clemency, which was referred to committee and, notably, has not passed.

S. Res. 772 did, unanimously. That contrast is the point. The Senate can't stop a pardon; it can only raise the price of one. Should Trump ever grant Bankman-Fried clemency, he would be doing so against the explicit, on-the-record, unanimous objection of every member of the Senate, including all 53 Republicans, a political cost, deliberately imposed in advance.

The underlying record is settled law. A New York jury convicted Bankman-Fried in November 2023 on all seven counts related to defrauding FTX customers, lenders, and investors.

Judge Lewis Kaplan sentenced him to 25 years in March 2024 and ordered $11 billion in forfeiture, with prosecutors describing the case as one of the largest financial frauds in U.S. history.

American customers lost more than $8 billion, and he is not eligible for release until
approximately 2044. His post-conviction litigation has gone badly.

He filed a pro se Rule 33 motion for a new trial, then tried to withdraw it "without prejudice" in an April 22 letter to Judge Kaplan, saying he did not believe he would receive a "fair hearing", but Kaplan denied the withdrawal request and ruled on the motion anyway, denying it on April 28, 2026 and calling the new-evidence claims "baseless."

Then the bigger blow: on June 12, a three-judge panel of the Second Circuit issued a 42-page opinion rejecting every argument advanced to undo the conviction.

Judge Barrington Parker wrote that FTX customers were defrauded when Bankman-Fried
transferred their funds, "regardless of how strongly he believed he might later return the
money."

Which explains the pivot to clemency. Bankman-Fried formally submitted a pardon request
to the Department of Justice in June, it is listed as "pending." He has kept insisting on
solvency throughout, posting on X that "FTX was always solvent" and arguing on Fox
Business that FTX was "one of the very few cases where the platform was overcollateralized, where customers were more than made whole."

Courts at every level have rejected that framing; misappropriation is the crime, not the eventual balance sheet.

As for the audience of one: Trump told The New York Times in January that he has no plans to pardon Bankman-Fried, even as he has extended clemency to other crypto figures, among them Changpeng Zhao, the BitMEX co-founders, and Ross Ulbricht.

SBF was never one of us. FTX was a custodial casino, the exact counterparty risk Bitcoin was engineered to make optional.

But its collapse set the regulatory clock ticking on everything with a private key, and Bitcoin has been living inside that fallout ever since.

Read the authorship of this resolution carefully. The two senators most invested in passing
digital asset legislation spent floor time putting the entire chamber on record against the
industry's most infamous fraudster.

The clearest signal is not that Congress dislikes Bankman-Fried, it is that crypto's own legislative champions calculated that distancing themselves from him was worth spending floor time on, at the precise moment they are asking colleagues for votes on market structure.

It draws a clear line between supporting the technology and tolerating fraud. That line is the predicate for any durable legislative framework.

Whether unanimity on SBF converts into unanimity on Bitcoin legislation is a harder question, ethics concerns around the Trump family's own crypto ventures remain a major sticking point in market-structure negotiations, but a Congress that can agree fraud is fraud is a Congress Bitcoin can work with.

The Senate has spoken with one voice. The Constitution still speaks with a louder one. Only the President can pardon, and no resolution changes that. What changed on July 15 is that if he ever does, he will do it over the recorded objection of every senator in America.

Not your branch, not your power, but the receipt is now permanent. For ongoing legal coverage of Bitcoin law and policy, subscribe to The Bitcoin Act at thebitcoinact.xyz.