“Is the presidential pardon illegal when the pardoned person has paid a bribe to obtain the pardon?” — Don
Hi Don,
I’m afraid not – at least not necessarily.
The pardon bribery scheme you describe is illegal. But the validity of the pardon obtained through that scheme is a separate matter.
Even prosecuting such a scheme is complicated by the Supreme Court’s ruling on presidential immunity. In its dissent from last year’s decision in Trump v. in the United States, Justice Sonia Sotomayor argued that the decision would immunize presidents who take bribes for pardons. Whether this is so will have to be tested in a future case, should one arise. In any case, the responsibility of the president is a separate issue from the responsibility of bribery, which is not immune.
But however the hypothetical prosecution shakes out, I’m skeptical that the underlying pardon would be invalidated, given the broad nature of the pardon power, coupled with the Supreme Court’s expansive view of executive power in general.
A 2021 law review article by scholar Albert Alschuler surveyed the historical record and noted that decisions invalidating fraudulent pardons came in cases where “authorities had been deceived,” as opposed to cases where “kings, governors, presidents, or other officials had conspired with pardon recipients to defraud the public — for example, by making a decision to bribery even when the recipient cannot address his freedom cash paid.” Alschuler observed that other scholars have argued that pardons are “absolute” but that the president is not immune from prosecution for committing crimes when he issues them.
This was before the immunity decision, which reinforced the court’s immense view of presidential power. Indeed, the sentence did more than cast doubt on whether a president can be prosecuted for taking a bribe for a pardon: It even suppressed the investigation of a former president in relation to official acts. This can make it more difficult to prove that a pardon recipient bribed the president if doing so depends entirely on digging into the president’s motives.
Therefore, even if a criminal case can be brought against the pardoned bribery or presidential bribery, the underlying pardon itself may still stand. One way to find out would be for the Justice Department in a subsequent administration to file charges against the briber for the condoned behavior. The accused then points to the pardon as a reason to dismiss the case, and the courts decide.
Making this corrupt scenario even more blatant, a scheming president can take things a step further by pardoning bribes for bribes as well. Perhaps the president would also pardon them in that scenario, although self-pardons raise their own untested issues.
Of course, this discussion is about explicit bribery. People can see corruption in President Donald Trump’s pardons even if the pardons don’t necessarily violate federal bribery law — take that of Changpeng Zhao, founder of cryptocurrency exchange Binance, who helped enrich the Trump family business before he was pardoned. There is always impeachment for abuse of power, but that would require Congress to act as a check on the president, as opposed to acting as an arm of the president.
Ultimately, this discussion shows that the best way — perhaps the only real way — to combat the corrupt exercise of the pardon power is to not elect corrupt presidents.
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