Federal law does not require the official to be found guilty in order for a bribery charge to be upheld. According to 18 U.S.C. § 201, "corruptly giving, offering, or promising anything of value to a public official with intent to influence an official act" is the definition of bribery. The maximum punishments include fines and up to 15 years in prison.
The essential element is "intent to influence an official act." Regardless of whether a pardon is related to an unfiled charge or a previous conviction, it is unquestionably an "official act" of the president. When an obvious quid pro quo links a payment and a pardon, the payer directly violates § 201. The Ninth Circuit upheld the decision in United States v. Shen Zhen New World that bribery does not require a formal agreement and that the crime is completed once the defendant demonstrates "a willingness and ability to pay the bribe."
But that's not all. For federal prosecutors, conspiracy under 18 U.S.C. § 371 is an even more flexible tool. When two or more individuals come together "to defraud the United States, or any agency thereof, in any manner for any purpose," it is considered a conspiracy to defraud the United States. A pardon-for-cash program is essentially the commercialization and privatization of a public authority, which neatly fits within the obstacle of the government's "honest services" function.
The "honest services fraud" theory offers an additional degree of exposure. In Skilling v. United States, the Supreme Court limited the doctrine to "bribery or kickback schemes involving a breach of fiduciary duty." Immunity shields the president, but authorities could still apprehend co-conspirators. A president using his pardon power for personal benefit is a textbook example of how to act as a fiduciary of the people.
Real cases have already surfaced. In 2021, a Florida man named Stephen M. Alford confessed to wire fraud after deceiving a victim out of $25 million by claiming he could "arrange" a presidential pardon. He might be imprisoned for up to 20 years. The case emphasizes a crucial fact: federal enforcement targets pardon-related transactions, whether they are legitimate or not, even though Alford had no actual "connections" and his scheme was pure fraud.