The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Buddy, Can You Spare A Million Bucks?
The appalling consequences of presidential immunity.
Here, just for historical purposes, is the federal bribery statute (18 U.S.C. §201(b)), a heart-warming relic of the days when accepting a cash payment in exchange for committing an official act was considered disqualifying for public officials - even/especially for Presidents:
"Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of the official duty of such official or person; . . .
shall be fined under this title not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.
Notoriously difficult to prove beyond a reasonable doubt (though don't remind former Senator Bob Menendez of that!). I suppose that there are some readers who actually believe that Dear Leader's pardon of Paul Walczak was not "influenced" or "induced" by the $1,000,000 that his mother paid to Trump's PAC (MAGA, Inc.) a few weeks before the pardon was issued - that it simply reflects the soft spot in Dear Leader's heart for tax cheats who steal money from doctors and nurses (AKA "suckers") in order to buy yachts and other luxury goods.
I guess we'll never know for sure. To the best of my knowledge, the White House has not issued any statement regarding the pardon. And, of course, we'll never see Trump indicted for bribery, not just because the DOJ is not interested in pursuing charges against our D.L. or those who shower money upon him, but also because he is almost certainly acting within the presidential immunity announced last year in the [aptly-named] Trump v. United States case.
The opinion makes for interesting reading in light of this new grift Trump has concocted. As you no doubt recall, the Court found that there was a "presumptive immunity" from criminal prosecution for a President's "official acts" - acts within "the outer perimeter of his official responsibility." Such an immunity is "required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution."
"An official act is one taken by the President pursuant to constitutional and statutory authority to perform the functions of his office. Determining whether an action is covered by immunity thus begins with assessing the President's authority to take that action. . . . In dividing official from unofficial conduct, courts may not inquire into the President's motives."
"[C]ourts cannot examine the President's actions on subjects within his 'conclusive and preclusive' constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President's actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority."
And the pardon power, of course, is within the President's exclusive sphere of constitutional authority, given the express language in Article II of the Constitution that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States."
To the executive alone is intrusted the power of pardon, and the legislature cannot change the effect of such a pardon any more than the executive can change a law." The President's authority to pardon, in other words, is "conclusive and preclusive," "disabling the Congress from acting upon the subject."
I assume this means that our D.L. could set up a little pop-up stand near the White House, out in the open, and dispense pardons to anyone willing to pay the price he sets, and the only remedy available is impeachment.
It's a nice gig if you can get it, no?
