Legalities of Offering POTUS Money for Pardons

Could Zealous Advocacy Require Lawyers of High-Net-Worth Clients to Offer POTUS Money in Exchange for Pardons?

In Trump v. United States, the Supreme Court of the United States (SCOTUS) held as follows:

The Congress cannot act on, and courts cannot examine, the President's actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President's actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority. 

Trump v. United States, 603 U.S. 593, 609 (2024). In discussing the types of activities that fall within the President’s “exclusive sphere of constitutional authority,” SCOTUS reiterated that “the President’s authority to pardon . . . is conclusive and preclusive, disabling the Congress from acting upon the subject.” Id. at 608 (cleaned up). Indeed, “[t]he Constitution . . . vests the ‘Power to Grant Reprieves and Pardons for Offences against the United States’ in the President.” Id. (quoting Art. II, § 2, cl. 1).

Accordingly, the President of the United States (POTUS) can legally pardon—for any reason—any person for any federal crime. POTUS need not even state a reason.

Vested with that unfettered constitutional authority, therefore, any POTUS could provide a pardon in direct exchange—i.e., as an overt quid pro quo—for a payment of $10,000,000 from the recipient of the pardon. Because POTUS would be within the exclusive sphere of constitutional authority, POTUS could not legally face any civil or criminal liability. See, e.g., id. at 685 (Sotomayor, J., dissenting) (“The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. . . . Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”).

Nonetheless, one must still assess whether it would be illegal for a person (or his/her lawyer) to offer or pay money to POTUS in exchange for a pardon. In other words, POTUS’s constitutional authority and immunity do not automatically shield any other parties to such a transaction.

For example, it arguably violates the federal bribery statute, 18 U.S.C. § 201, for a person to offer or pay $10 million to POTUS in explicit exchange for a pardon. See, e.g., United States v. Shen Zhen New World I, LLC, 115 F.4th 1167, 1177 (9th Cir. 2024) (“When the defendant is the bribe-giver . . . the bribery offense does not require an agreement to enter into a quid pro quo with the public official. Under the plain terms of § 201, the bribe-giver commits bribery when he corruptly gives, offers or promises anything of value to any public official with intent to influence any official act. Thus, the crime of offering a bribe is completed when a defendant expresses an ability and a desire to pay the bribe.” (cleaned up)).

However, there are at least two critical problems with applying that analysis to a paid pardon transaction with POTUS. First, POTUS could arguably pardon the same person for any violation of 18 U.S.C. § 201. Even if that person has not been sentenced, convicted, or even charged with that crime, POTUS may still pardon that person’s conduct—i.e., pardon the original offense as well as the conduct of offering and/or providing $10 million in exchange for a pardon of the original offense. https://www.justice.gov/pardon/frequently-asked-questions (“[T]here have been a few cases where people who had not been charged with a crime were pardoned, including President Gerald Ford's pardon of President Richard Nixon after Watergate, President Jimmy Carter’s pardon of Vietnam draft dodgers and President George H.W. Bush's pardon of Caspar Weinberger.”).

Second, if it is legal for POTUS to consider a payment of cash as a factor for whether to provide a pardon—and legal to actually receive the cash and issue the pardon in exchange—then would it constitute bribery under Section 201 for the other person to participate in the same conduct? Would it violate Section 201 for a pardon-seeker to provide POTUS the very resource that POTUS legally requests or requires in exchange for the pardon?

In other words, if POTUS may lawfully collect a fee (even a $10 million fee) for a pardon, then is it an unlawful purpose to provide that fee and meet POTUS’s [lawful] condition? See, e.g., United States v. Biaggi, 909 F.2d 662, 683 (2d Cir. 1990) (“In some cases of payments to service providers who hold public office, the evidence has been deemed insufficient to show any purpose for a payment other than a lawful one.”). And in the same vein, would POTUS’s requirement or acceptance of the payment from a pardon seeker give rise to a public authority defense? See, e.g., United States v. Yang, No. 22-10294, 2024 WL 1574351, at *2 (9th Cir. Apr. 11, 2024), cert. denied, No. 24-5076, 2024 WL 4805920 (U.S. Nov. 18, 2024) (“The public authority defense is an affirmative defense of excuse derived from the common law. It is grounded in the principle that prosecuting an individual who acts in reliance upon official statements that one’s conduct is lawful offends due process. Typically, a public authority defense to federal charges is only available where the defendant relies on the advice or authority of federal officials or agents, because only such officials or agents could possibly authorize violations of federal law." (cleaned up)).

Finally, if payments for pardons are legal, what are the implications for a lawyer representing a criminal defendant who has the means to pay a substantial sum for a pardon? As a zealous advocate, the lawyer may need to engage with and vet the concept, consult with ethics counsel, and then advise the client if one of the most viable defense strategies is to offer as much money as possible to SCOTUS in exchange for a pardon.