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Fact check: Can a president be prosecuted for selling pardons?
Executive Summary
A president who sells pardons for money could face criminal exposure under federal bribery and corruption statutes if prosecutors can prove a quid pro quo or that the pardon was procured by bribery, but recent legal developments on presidential immunity complicate the prospect of indictment and conviction. The question divides legal scholars, courts, and political actors: statutes and decades of commentary treat selling pardons as criminal bribery, while Supreme Court rulings and immunity claims limit when a sitting or recent president can be prosecuted for acts tied to official authority [1] [2] [3].
1. Why selling pardons looks like bribery and criminal corruption — the plain statutory case
Federal criminal law criminalizes public officials performing official acts in exchange for personal benefit, and commentators argue that selling a pardon fits squarely within those bribery and corruption statutes because the president would be accepting something of value in return for an official action. Legal commentary dating to at least 2017 argues explicitly that exchanging pardons for cash would violate federal bribery statutes and be prosecutable as a crime, and more recent legal practitioners reaffirm that any official act performed for personal compensation is a felony and impeachable [1] [2]. These analyses rest on the basic elements prosecutors have used in corruption prosecutions elsewhere: an agreement or quid pro quo, a thing of value, and the official act. If those elements are provable, the statutory framework condemns the conduct regardless of the constitutional pardon power itself [1] [2].
2. The constitutional wrinkle: pardon power is broad but not a license for corruption
The presidential pardon power is constitutionally broad and historically treated as largely unchecked, leading to the view that pardon decisions are discretionary and difficult to overturn, which complicates whether a pardon itself can be voided or used as the basis for a criminal case [4] [5]. At the same time, legal analysts and enforcement officials distinguish lawful exercise of pardon discretion from criminal agreements to exchange pardons for money. The lack of federal precedent voiding pardons does not equal immunity from prosecution for the corrupt procurement of a pardon; prosecutors would pursue the underlying corrupt agreement rather than seek to void the clemency grant per se [4] [6].
3. How recent court rulings on presidential immunity change the enforcement landscape
The Supreme Court’s recent rulings on presidential immunity have substantially narrowed prosecutors’ options by recognizing presidential immunity for core official acts and a presumption that certain acts fall within presidential functions, while leaving non-official acts unprotected [3]. Advocates for immunity argue that acts like granting pardons are official functions, which could shield a president from criminal prosecution when the conduct is framed as an exercise of constitutional authority. Opponents and many scholars counter that immunity should not cover clear bribery agreements; the split turns on factual proof demonstrating the act was an exchange for value rather than a discretionary clemency decision [3] [1].
4. Evidence and prosecution strategy: what would prosecutors need to prove?
Prosecutors would need explicit evidence of an agreement that a pardon was exchanged for money or other value — communications, witnesses, or financial traces that show a quid pro quo — and they would frame the case around statutory corruption rather than the bare act of granting clemency. Commentators emphasize that convictions hinge on proof of an illegal agreement and the receipt of something of value, not simply on the perceived impropriety of any particular pardon [1] [2]. Investigative reporting demonstrating patterns of pardons for allied or corrupt actors can build public and evidentiary pressure, but it does not by itself satisfy criminal-law elements without corroborating proof [7] [6].
5. Politics, impeachment, and the practical realities beyond criminal law
Even if criminal prosecution is constrained by immunity doctrines or evidentiary hurdles, Congressional remedies and public accountability remain potent tools: impeachment and political sanctions address abuses of the pardon power where criminal courts cannot or will not act. Investigations into controversy-laden pardons have prompted congressional inquiries and public debates over the pardon power’s scope, demonstrating that legal limits are only one part of accountability. Those seeking accountability may pursue legislative reform, oversight investigations, or political consequences, recognizing that criminal liability, while possible in theory, faces significant procedural and constitutional hurdles in practice [8] [7].