“Is a presidential pardon illegal when the pardoned person paid a bribe to get the pardon?” – Dawn
Hi Dawn,
I’m not afraid – at least not necessarily.
The amnesty scheme you described is illegal. But the validity of the amnesty obtained through that scheme is a separate question.
Executing such a plan is also complicated by the Supreme Court’s ruling on presidential immunity. In her dissent from last year’s decision in Trump v. United States, Justice Sonia Sotomayor argued that the decision would immunize presidents who accept bribes for pardons. If it does arise, it will have to be tested in a future case. In any case, the liability of the President is separate from the liability of the briber, who is not immune.
But although the hypothetical prosecution would be shaken, I am skeptical that the implied pardon would be invalid, given the broad nature of the pardon power, along with the Supreme Court’s broad view of executive power.
A 2021 law review article by scholar Albert Alschuler surveyed the historical record and noted that decisions overturning fraudulent pardons came in cases where “officials were duped” in that “kings, governors, presidents, or other officials joined the pardon recipients—for example, no decision was made by defrauding the public. A pardon may entitle the recipient to his liberty even if a cash payment is made.” Alschuler observed that other scholars maintain that pardons are “absolute” but do not absolve the president of having committed a crime when he issues them.
That was before the immunity rule, which reinforced the court’s expansive view of presidential power. Indeed, the ruling did more than cast doubt on whether a president could be prosecuted for taking bribes for pardons: it also barred former presidents from being investigated in connection with official acts. This could make it more difficult to prove that a pardon recipient bribed the president if doing so would rely on digging into the president’s motives.
So, even if a criminal case can be brought against the pardoned briber or presidential briber, the underlying pardon itself may stand. One way to find out is for the Justice Department to bring charges against the briber for condoning conduct in a later administration. The defendant will then point to the pardon as a reason to dismiss the case, and the court will make a decision.
Making this corrupt scenario even more brazen, a scheming president can even go a step further by pardoning a bribe-taker. Perhaps even the president would pardon himself in that scenario, although self-pardons raise their own unexamined issues.
Of course, this discussion is clearly about bribery. The public may see corruption in President Donald Trump’s pardon even if the pardon doesn’t violate federal bribery laws — take Changpeng Zhao, founder of cryptocurrency exchange Binance., who helped enrich the Trump family’s business before being pardoned. There is always impeachment for abuse of power, but that requires 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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