by Ken MacVey
Donald Trump has creatively explored ways to monetize the presidency. These include launching the $TRUMP crypto business a few days before resuming office on January 20, 2025 or using Truth Social–a private business venture he helped start– to platform his presidential and personal pronouncements.
Monetization began early in the first Trump administration with the Trump International Hotel in Washington DC, which became, according to an October 18, 2024 House Committee on Oversight staff report, a hotel of choice for foreign and domestic influencers and would-be appointees to government positions, such as judgeships and ambassadorships. According to the report, it was also the hotel of choice for various presidential pardon recipients. This report alleged that at least five such recipients stayed at the hotel spending thousands of dollars in 2017 and 2018. The report went on: “[T]hese expenditures are particularly troubling in light of allegations that former President Trump’s former personal attorney, Rudy Giuliani, was involved in efforts to sell presidential pardons for $2 million apiece—an amount Mr. Giuliani reportedly planned to split with President Trump.” (These allegations stem from a lawsuit against Giuliani by someone who used to work for him– Giuliani denies the allegations.) Since this report, Trump has pardoned Giuliani for his role in attempting to overturn the 2020 election.
A number of Trump pardons in the last few months have caught the public’s eye. For example, in October Trump pardoned billionaire crypto entrepreneur and convicted felon, Changpeng Zhao. Zhao and his company pled guilty to failing to stop money laundering, which according to the Department of Justice aided terrorist groups like Isis. Forbes reported that Zhao’s company had made a deal in May 2025 with a Trump family affiliated company that helped boost Trump’s net worth by hundreds of millions of dollars. Liz Oyler, head pardon attorney for the Department of Justice until last March, is quoted by Forbes as saying: “Trump has created a pay-for-play pardon system.”
Maybe even more controversial is Trump’s December pardon of former Honduran president Juan Orlando Hernandez, who was convicted in federal court of running a massive drug trafficking ring that imported hundreds of millions of dollars of illegal drugs (e.g., cocaine) into the United States. Political strategist Roger Stone, also someone Trump had recently pardoned, urged Trump to pardon Hernandez. For many the Hernandez pardon was a head scratcher, hard to reconcile with the Trump administration’s campaign to blow up and kill drug importers on international waters allegedly because their cache of imported drugs (e.g., cocaine) threatened to kill Americans.
Whatever is really fueling these or other pardon decisions we may never know. Nonetheless, despite public concerns about these pardons, violation of federal anti-corruption statutes is unlikely, especially given the Supreme Court’s recent narrow interpretation of those statutes in reversing federal bribery convictions. But if a president were ever to actually take a bribe for granting a pardon the Supreme Court has made it legally insurmountable for a president to be prosecuted or convicted in court.
As discussed below, the issue of bribes for pardons came up in 2024 in Trump v. United States—the presidential immunity decision regarding Trump’s indictment for attempting to overturn the 2020 election. In that decision the Supreme Court held that current and former presidents have conclusive and preclusive immunity from criminal prosecution based on the exercise of their core constitutional powers. This means the claim of immunity can never be challenged with respect to a president’s exercise of such powers.
On the other hand, the decision held non-core presidential official acts “within the outer perimeter” of a president’s “official responsibility” are subject to a presumption of immunity. This possibly means in theory the presumed immunity could be overcome with the burden on the challenger to justify the challenge. The Supreme Court, however, did leave it an open question whether a president could ever be prosecuted for any official action. The Court did hold there is no immunity for a president’s unofficial actions. But (and this is a big “but”) in parsing official from unofficial conduct, the Supreme Court held courts may not inquire into a president’s motives.
This convoluted framework of presidential immunity is nowhere set forth in the text of the Constitution. Nor did the Framers and ratifiers of the Constitution recognize presidential immunity from criminal prosecution. To the contrary, as Justice Sotomayer noted in her dissent in Trump v. United States, Alexander Hamilton wrote in the Federalist Papers (No. 69) that former presidents would be “liable to prosecution and punishment in the ordinary course of law.” Chief Justice Roberts justified construction of this arc of immunity– not on originalist interpretive grounds– but on the Court’s own judgment that such immunity is necessary for the effective exercise of executive power. Another way some have put it—it was just made up.
The dissent by Justice Sotomayer and joined by Justices Kagan and Brown, raised the concern that taking bribes for pardons would be immune. She wrote if a president — “Orders the Navy’s Seal Team 6 to assassinate political rivals? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe for a pardon? Immune. Immune, immune, immune.”
Chief Justice Roberts in his opinion contemptuously dismissed these concerns as overwrought and improbable. But he did respond in a footnote to Justice Barrett’s concern in her concurring opinion that the Court’s decision could mean barring evidence in a bribery prosecution. Chief Justice Roberts tried to alleviate this concern by saying “the prosecutor may point to the public record to show the fact that the President performed an official act.” He went on: “And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act.” Left unanswered is how practically meaningful these assurances are if a president still could use an adviser as a go-between whose communications with the president, wrapped in a cocoon of executive privileged confidentiality, would be free from outside probing and public scrutiny.
In any case, what is clear is that Justice Sotomayer is right— under the decision a president would be immune from prosecution for taking a bribe in return for a pardon. That is because the president’s power to pardon is a core constitutional power. Article II Section 2 Clause 1 of the Constitution states a president has “the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Chief Justice Roberts declared : “The President’s authority to pardon, in other word is ‘conclusive and preclusive’ . . .” He further affirmed the pardon power cannot be regulated by Congress. And nowhere in his opinion did he deny in response to Justice Sotomayer that a president would be immune for taking a bribe in trade for a pardon.
Immunity from criminal prosecution relating to exercise of the pardon power appears to be absolute. That means if a president takes a bribe for granting a pardon, the president will never need a “get-out-of-jail” card because a president will never have to worry about getting in jail in the first place. Nor need a president worry about a bribe coming to public light due to investigation by a prosecutor. As Chief Justice Roberts wrote: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” For that reason the “testimony or private records of the President or his advisers” are off limits. (An interesting side question: does this principle also mean that Nixon’s White House secret tapes were private records and therefore Nixon should never have been legally required to produce them in response to a judicial subpoena as the Supreme Court had ruled in United States v. Nixon in 1974 ? Very possibly. If so, so much for that Watergate precedent. )
A hundred years ago the Supreme Court was faced with the question whether the presidential pardon power extended to criminal contempt for violating court orders. It has been long acknowledged in the law that courts have not only statutory but also inherent civil and criminal contempt powers to enforce their orders. But former President and then Chief Justice Taft in writing an opinion in 1925 on behalf of the Court found presidents do have the power to pardon criminal contempt. The concern was that extending the pardon power to criminal contempt would undermine the judiciary’s authority to enforce its orders against a president. Perhaps thinking more like an ex-president than a chief justice, Taft rejected this concern in Ex Parte Grossman:
“If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood [sic], it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if imagined at all, would suggest a resort to impeachment, rather than to a narrow and strained construction of the general powers of the President.”
A century later, a president’s systematic abuse of the pardon power is no longer so unimaginable. What has become less imaginable–after two recent failed presidential impeachments and the Supreme Court’s presidential immunity decision– is that such abuse, even if corrupt, could ever be checked by impeachment or the courts.