New on Lawfare: The Abuse of the Pardon Prevention Act Would Criminalize Politics

Seth Barrett Tillman and I consider the constitutionality of this new bribery regime.

Seth Barrett Tillman and I published a new essay on Lawfare about the the Abuse of the Pardon Prevention Act. Here is an excerpt:

The Abuse of the Pardon Prevention Act has several significant problems. As a threshold matter, it is not clear that this bill is necessary to prohibit the president from accepting bribes, as that term has been traditionally understood. We think federal law already would permit the prosecution of a (former) president for having accepted or solicited a bribe during his term as president. The Constitution expressly states that the president can be impeached for bribery. Accepting a bribe, as that term is traditionally understood, is beyond the president's Article II powers. Because such wrongdoing would go beyond the president's Article II powers, Congress can criminalize such actions with or without a clear statement. In 1995, the Office of Legal Counsel determined that the bribery statute could be applied to the president, even absent a clear statement. This 1995 memorandum, however, at its core, considered a different question: whether a nepotism statute applies to federal judges.

Consider an example. The president asks someone for a suitcase full of cash in exchange for his granting a pardon. With those facts, the president could be impeached for bribery. In such a case, we can be fairly certain the transaction was not publicly spirited, even in part, because the bargain is intended to be kept secret; the money is kept in a suitcase, as opposed to a bank; the income is not declared; and the president personally accepts the cash. Even under the present version of § 201, we think a (former) president could be indicted for bribery on these facts.

This new bill, however, creates other significant problems far beyond pardons. Specifically, by eliminating the clear statement rule, Congress would subject the president to a theory of "bribery" that is more expansive than the suitcase-full-of-cash scenario we described above.

Indeed, we think this theory of statutory bribery would resemble the broader theory of bribery that was debated during the impeachment process. The same Judiciary Committee that marked up this bill considered an article of impeachment based on bribery against President Trump. (Ultimately, the House brought articles focusing on "abuse of power" and "obstruction of Congress." House leadership chose not to adopt an article of impeachment that expressly included a bribery-based theory.) Our position was that any such theory of bribery would be problematic. In December 2019, we wrote about the difficulties the House would face in bringing an article of impeachment based on an overly broad theory of bribery.

The Judiciary Committee's proposed bill should be read in light of the Judiciary Committee's proposed but, apparently, rejected theory of bribery from the impeachment process. This proposed bill would transform the federal bribery statute into an open-ended method by which (former) presidents—and truly all federal elected officials—could be prosecuted for engaging in normal politics. If the president offers a person an official act in exchange for that person's performing some official act, and that exchange indirectly benefits the president, then the president will have engaged in bribery. We table for now whether such a statute is constitutional. Instead, we contend that this bill would lead to undesirable policy consequences. The statute, if enacted, would in effect criminalize normal democratic politics.

This overly expansive redefinition of "bribery" is poor policy. The ultimate effect of this statute, if it were systematically enforced, would be to transform a partisan, party-leader and policymaking president into something more akin to a modern British monarch—a nonpartisan figure who is not allowed to publicly give voice to independent views about what measures advance the public good. Federal prosecutors, through the power of the criminal process, will dictate what that public interest is.

This essay builds on our writings from last year about bribery and the Presidency.