In 2024, the United States Supreme Court issued a landmark decision in Trump v. United States: the president has absolute criminal immunity for conduct within the scope of his "core constitutional powers." The pardon power, as explicitly recognized by the Court, is one of the president's "conclusive and preclusive" powers.
What exactly does that mean in practice? In the words of legal practitioners, a president can lawfully pardon any federal offender for any reason—or no reason at all. He can explain his motivations, justify his decision, or even admit the pardon was a transaction. As the Court reaffirmed, Congress may pass generally applicable criminal laws, but it cannot criminalize the president's use of the pardon power itself.
So an unsettling logical chain emerges: if the president cannot be prosecuted for "trading a pardon for money," is the other side of the deal — the paying party — safe?
The answer is much more complicated than it appears. Presidential immunity is a one-way firewall that protects only the occupant of the Oval Office, not the people waiting outside to "purchase" their freedom. In other words, the president can take the money, but the payer can still go to prison—and this legal asymmetry is at the heart of the issue.
Page 2: The Payer's Trap—Bribery, Conspiracy, and "Honest Services"
Federal law does not require the official to be convicted for a bribery charge to stand. Bribery is defined as "corruptly giving, offering, or promising anything of value to a public official with intent to influence an official act" (18 U.S.C. § 201). The maximum penalty is up to 15 years in prison and fines.
The key component is "intent to influence an official act." A pardon, whether for a prior conviction or charges not yet filed, is unquestionably an "official act" of the president. When a payment and pardon are linked by a clear quid pro quo, the payer falls into the crosshairs of §201. In United States v. Shen Zhen New World, the Ninth Circuit affirmed that bribery does not require a formal agreement; rather, the crime is complete once the defendant demonstrates "a willingness and ability to pay the bribe."
But that is not all. Federal prosecutors have a more versatile weapon: conspiracy under 18 U.S.C. § 371. If two or more people conspire "to defraud the United States, or any agency thereof, in any manner for any purpose," it is considered conspiracy to defraud the United States. A pardon-for-cash scheme is fundamentally the privatization and commodification of a public power, which neatly fits into the obstruction of the government's "honest services" function.
The "honest services fraud" theory adds another layer of exposure. In Skilling v. United States, the Supreme Court restricted the doctrine to "bribery or kickback schemes involving a breach of fiduciary duty." A president, as a fiduciary of the people, trading pardon power for private gain is a textbook example—and even if the president is immune, co-conspirators can still be caught in the net.
Actual cases have already surfaced. In 2021, Stephen M. Alford, a Florida man, pled guilty to wire fraud after defrauding a victim of $25 million by claiming he could "arrange" a presidential pardon. He faced up to twenty years in prison. While Alford's scheme was pure fraud—he had no actual "connections"—the case highlights an important fact: pardon-related transactions, real or fake, are targets of federal enforcement.
Page three: loopholes, fixes, and the question remains unanswered.
The current legal landscape presents an odd asymmetry: the payer can face prison for bribery or conspiracy, but the president himself—under the Supreme Court's 2024 ruling—is very likely to enjoy absolute criminal immunity. This situation isn't a hypothetical. In her dissent to Trump, Justice Sotomayor stated bluntly, "Bribe for a pardon? Immune. Immune. Immune."
The legislative branch has not been idle. S. 5256, a bill in the 119th Congress, aims to include the president and vice president in the definition of "public official" for bribery purposes. It also includes "any pardon, commutation, or reprieve, or the offer of such pardon, commutation, or reprieve" as an example of an "official act" under § 201. The bill also includes an unusual provision: a presidential self-pardon would be "void and of no legal effect."
However, a fundamental question remains unanswered: Is a pardon obtained through bribery itself valid?
Legal scholarship leads to an uncomfortable conclusion. In a 2021 law review article, Albert Alschuler surveyed the historical record and discovered no case that determined whether a pardon "remains effective when the recipient paid cash for it." In other words, even if the payer is convicted, the purchased pardon may still be valid—under current law, the validity of the pardon and the legality of how it was obtained are two distinct questions.
This creates an unsettling closed loop: money can buy freedom, the buyer may go to prison for it, but the fruit of that freedom—the pardon itself—may remain on the wall. And for the president, the Constitution and Supreme Court precedents have created a nearly impenetrable shield.
The law ultimately determines the illegality of selling pardons based on which side of the transaction you are on. For the buyer, the law is unequivocal, harsh, and unbending. For the seller, the law is murky, shrouded in layers of immunity, and possibly forever out of reach. That asymmetry is an indictment of the American rule of law: when the highest officeholder can lawfully do something that criminalizes everyone else, who is the law protecting?