Ask Jordan: Are pardons legal if they’re obtained with bribes?

[Thiệu Ngô]

“Deadline: White House” legal analyst Jordan Rubin answers your questions about the Supreme Court, Trump administration lawsuits and other issues.

By Jordan Rubin

“Are presidential pardons illegal when the person pardoned 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 question.

Even prosecuting such a scheme is complicated by the Supreme Court’s ruling on presidential immunity. In her dissent from last year’s ruling in Trump v. United States, Justice Sonia Sotomayor argued that the decision would immunize presidents who take bribes for pardons. Whether that’s so would have to be tested in a future case, if one arises. In any event, the president’s liability is a separate matter from the liability of the briber, who isn’t immune.

But however the hypothetical prosecution would shake 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 generally.

A 2021 law review article by scholar Albert Alschuler surveyed the historical record and noted that decisions invalidating fraudulent pardons came in cases where the “authorities had been tricked,” as opposed to cases where “kings, governors, presidents, or other officials had joined pardon recipients in defrauding the public — for example, by taking bribes. No decision appears to have addressed whether a pardon can entitle a recipient to his freedom even when he paid cash.” Alschuler observed that other scholars maintained that pardons are “absolute” but that the president isn’t immune from prosecution for committing crimes when issuing them.

That was before the immunity ruling, which reinforced the court’s immense view of presidential power. Indeed, the ruling did more than cast doubt on whether a president could be prosecuted for taking a bribe for a pardon: It even curbs investigating a former president in connection with official acts. That could make it more difficult to prove that a pardon recipient bribed the president if doing so would rely at all on digging into the president’s motives.

So, even if a criminal case could be brought against the pardoned briber or the presidential bribee, the underlying pardon itself could still stand. One way to find out would be for the Justice Department in a subsequent administration to bring charges against the briber for the pardoned conduct. The defendant would then point to the pardon as reason to dismiss the case, and the courts would decide.

Making this corrupt scenario even more brazen, a scheming president could take things a step further by pardoning the briber for the bribery, too. Perhaps the president would also pardon themself in that scenario, though self-pardons raise their own untested issues.

Of course, this discussion is about explicit bribes. 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 being pardoned. There’s 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 illustrates that the best way — maybe the only real way — to combat the corrupt exercise of the pardon power is to not elect corrupt presidents.