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.

|The Volokh Conspiracy |

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.

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  1. I expect that this is going nowhere fast, since it was drafted by the same House that impeached Trump on a purely partisan basis. As such, it is unlikely at present to survive the Senate, and would surely be versed by the President – Trump, or probably his successor of either party. Keep in mind that some of the more egregious examples of the evil that this is intended to address were committed by Bill Clinton (e.g. the pardon for Marc Rich in exchange for contributions by his (ex?) wife to their family foundation), on his way out of office.

  2. How interesting that people are now calling for preventing the president from granting Presidential Pardons. This is for a president that had NOT given that many pardon to start with and non are all that controversial. Yet the preceding president has handed out many times as many presidential pardons and some to extreme criminals and he did most of his pardons at the last minute where HE would not receive any political fall out. BTW none of the liberal media complained when he did this but that same media is loudly complaining about Trump’s pardons.

    1. This is for a president that had NOT given that many pardon to start with and non are all that controversial

      Uhhhh.

      1. I mean like serious spit-take lol

  3. Trump wins, vetoed. Biden wins, never passes.

  4. I always thought the “bribery” contention in impeachment was an exercise in dishonesty and political talking points- “bribery” is listed in the Impeachment Clause, so rather than just arguing they thought POTUS committed a high crime, they tried to shoehorn it into bribery. It was pathetic.

    So no, that was bad enough as a talking point. Let’s not make it law. If you want to define certain things in exchange for a pardon as a crime, write a very specific statute that does that.

  5. The Constitution expressly states that the president can be impeached for bribery.

    Since you didn’t notice, the entire reason this discussion is happening is because the president’s party isn’t interested in holding him accountable. So no, relying on the Senate is not sufficient.

  6. “The statute, if enacted, would in effect criminalize normal democratic politics.”

    This law would never ever ever be applied to those with Democrat Privilege. The DOJ just doesn’t do that.

    1. Quit whining, bigot.

      1. I’m sure there is some white truck driver laying on the ground somewhere waiting for you to kick in the head on the way to another culture war notch in your belt somewhere.

  7. The House Judiciary Committee report devoted 60 pages explaining the first article of impeachment, including 10 pages (starting on page 117) explaing how Trump’s conduct qualified as bribery. I don’t think that Blackman can reasonably conclude that the theory was rejected just because the resolution passed by the House (which condenses the first impeachment article down to about one page) doesn’t include it.

  8. Wouldn’t this require amending the Constitution?

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