“No body politic worthy of being called a democracy entrusts the selection of leaders to a process of auction or barter.”
– Brown v. Hartlage, 456 U.S. 45, 54 (1982)
In promising that he would pay every adult citizen of the United States a “dividend” of $5,000 if the Republican Party retains control of the Senate and House in the 2026 mid-term elections, President Donald Trump potentially has violated multiple federal criminal statutes that criminalize buying or coercing votes. He has done so, moreover, in his unofficial, political capacity, and thus cannot claim immunity under Trump v. United States if that promise was unlawful. Given the stakes for American democracy, Trump’s $5,000 promise deserves careful analysis, rather than being swiftly dismissed as just normal political speech.
As we discuss below, the starting point for such an analysis is Trump’s assertion that the power to make this payment is personal to him: he asserted “only I can make this promise to you.” Trump subsequently publicly confirmed his belief that it is unnecessary for Congress to approve this payment. In terms, then, Trump has conditioned the $5,000 payment on the re-election of a Republican Congress, while at the same time making clear his position that no action by that new Congress is necessary for the payment to be made. This is not the typical “campaign promise” protected by the First Amendment, where a candidate pledges that, if elected, he or she will work to bring about a policy change to benefit some or all voters: this is instead a naked promise of money, to be paid if and only if the election comes out a certain way. Accordingly, this pledge must be analyzed under 18 U.S.C. § 597, which makes it a federal crime to “make[] or offer[] to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate,” as well as under 52 U.S.C. § 10307(c), which provides that it is a criminal offense for anyone to “knowingly or willfully pay[] or offer[] to pay … for voting ….”[1]
Moreover, as we also argue, because Trump has suggested that this payment is a “dividend” already due the American people, his assertion that it will be paid only if a Republican Congress is re-elected—and not otherwise—on its face appears to constitute “coerc[ion] … for the purpose of interfering with the right of such other person to vote or to vote as he may choose,” in violation of 18 U.S.C. § 594.[2] And the coercive nature of this new “promise” is highlighted by the fact that Trump already has promised to pay all Americans (other than “high income” individuals) a $2,000 “tariff dividend”— but now to get their promised “dividend,” the voters will have to reelect a Republican Congress.
Nor is any potential criminal exposure here limited to the president: the same federal criminal statutes also apply to the administration’s political appointees who have ratified and amplified the president’s promise. All have joined in advancing a promise that deserves scrutiny as a potential “corrupt bargain” of the type forbidden by federal law.
I. The Promise Must Be Analyzed Under the Prohibitions of Federal Criminal Law.
Many commentators, including distinguished experts on election law, have asserted that the president would have a “strong First Amendment defense” to any assertion that his $5,000 promise poses issues under federal criminal law. To be sure, campaign promises by candidates pledging that, if elected, they will work to enact policies that may benefit all or some voters—ranging from tax cuts, to funding of programs, to direct government grants to citizens—have long been held to be at the core of political speech protected by the First Amendment. But to conclude that those precedents are controlling here would be, we submit, to misread what Trump actually has said.
In his speech at the first night of the 2026 Republican Midterm Convention, Trump announced:
But what we’re doing is because we’ve done so well, and because our country is making so much money that only I can make this promise to you, and here is my promise. If the Republicans win the House of Representatives and the United States Senate, both of them, because of our tremendous economic success… In history, we’ve never had anything like what’s happening, but because of our tremendous strength and success economically, I will issue a dividend to every adult citizen in the United States of America for $5,000. Very much like a successful company will do a cash distribution to its shareholders, or like last year when I gave our great members of the military 1,776.
This promise of a “Trump Dividend” does not fall within the type of “campaign promises” protected by the First Amendment. As the Supreme Court explained in Brown v. Hartlage, “The fact that some voters may find their self-interest reflected in a candidate’s commitment does not place that commitment beyond the reach of the First Amendment.” [3] But the Court also made clear that the First Amendment does not protect all pledges of benefits by candidates: “[A]s a State may prohibit the giving of money or other things of value to a voter in exchange for his support, it may also declare unlawful an agreement embodying the intention to make such an exchange.”[4] Thus, “the precise nature of the promise, the conditions upon which it is given, the circumstances under which it is made, the size of the audience, the nature and size of the group to be benefited, all might, in some instance and to varying extents, bear upon the constitutional assessment.”[5]
The “constitutional assessment” here must begin with a salient fact not present in Brown: Trump is not a candidate in the 2026 midterm elections. Thus, unlike candidates ranging from Huey Long—who proposed to institute a “share-our-wealth” plan[6]—to Andrew Yang—who promised to institute a universal basic income if he were elected president—Trump’s pledge of $5,000 is not a campaign promise related to his election, since he is not running for office. Rather, Trump, speaking at a Republican Party convention as leader of his Party, promised to make this payment if other Republicans are elected. And he stated, “only I can make this promise to you . . . .”
Furthermore, the $5,000 promise is unrelated to any action by those to be elected—i.e., the new Congress—or even the supposed institution of any new policy by the president following the mid-term elections. The campaign promises protected under Brown are those “to be achieved through the normal processes of government,”[7] including through new legislation: thus, for instance, both Long and Yang made clear that they would seek legislation permitting the payments to the public that they promised. But Trump’s pledge rests on no such “normal processes.” It is not part of a new legislative initiative that Trump has proposed to put before Congress, nor does it involve any action by Congress at all; indeed, it does not appear that Trump even discussed with members of Congress that he intended to make this pledge, and some have made clear they are opposed. It is thus not a “campaign promise” to take future action by those who are campaigning, i.e., the Republican candidates for Congress.[8]
To the contrary, Trump has made clear that he was not asking voters to re-elect a Republican House and Senate so that they can work with him to authorize a $5,000 payment to every citizen. Instead, Trump has suggested that Congress would not have to authorize such a payment.[9] Similarly, Vice President JD Vance has suggested that the payments could be made by the president from tariff revenue, while Secretary of Commerce Howard Lutnick has asserted that the funds will come from “Trump Platinum Card” fees or from the government’s investment in Intel. And in a recent Truth Social video, Trump asserted that, even though fulfilling this promise might cost $1 trillion, it would be “a very easy thing” for him to “sign[] those checks” (at 1:58–2:02), since (he claimed) $21 trillion had been invested in the United States in the last 15 months (at 1:31–1:49). In short, Trump claims the personal power to make these payments: the payments are not dependent on congressional action.
This is not a new position for Trump. He has repeatedly suggested that he has the authority to distribute “dividends” as he deems appropriate, without congressional approval. In fact, in November 2025, he promised that he would pay a $2,000 “tariff dividend” to all “non-high income” Americans; and contradicting both his Treasury Secretary and the chairman of his National Economic Council, Trump stated, “I believe we can do that without Congress.”
A month later, Trump in fact twice gave out “dividends” not authorized by Congress. In December 2025, Trump stated that he was paying American farmers $12 billion, funds that Trump said were from tariff revenues but that in fact apparently were transferred from the Commodity Credit Corporation. And then he announced a Christmas “warriors dividend” of $1,776 to each member of the military, again supposedly from tariff revenues, but actually from funds Congress had appropriated for housing supplements intended for just some members of the military. As noted above, in making his $5,000 promise, Trump stated it was “like last year when I gave our great members of the military 1,776 [dollars]”—thereby signaling to voters that he had the personal power to make such payments in the future as well.[10]And he made this point even more explicit in his recent Truth Social video in which he reiterated his $5,000 promise: he claimed with regard to the $1,776 payment that “everyone said that was an impossible thing to do,” but that he had done it (at 1:23-1:31)— again suggesting his power to make the $5,000 payments.
In sum, Trump already has twice demonstrated to the public his power to issue “dividends” without congressional action—even if those dividends were not, as he has claimed, from tariff revenues, but were instead from funds appropriated for other purposes. In addition, again without congressional authorization, Trump has recently issued what he calls $500 “refunds” to some enrollees in Affordable Care Act plans, largely in battleground states, asserting “[t]hat money belongs to hard-working Americans, not the Government, and now I am returning it to you!” And he recently announced that he would be sending $90 checks, using funds taken from the Medicare Improvement Fund without congressional approval, to “over 20 MILLION wonderful Seniors to help pay for their Medicare Part B premiums.” Significantly, Trump explicitly asserted that this Medicare payment demonstrated his ability to make good on his $5,000 promise: “[b]ecause I delivered on this very important issue for the American People, they can also rest assured the highly popular $5,000 Trump Dividend will be distributed to every U.S. Citizen if, and when, the Republicans win the Midterm Elections!”
Trump’s $5,000 promise must be seen against the backdrop not just of these prior payments, but also of the administration’s overall determination to free itself from congressional constraints on expenditures by the president. As Ted DeHaven of the Cato Institute has put it, there is “a broader story of Trump’s second term: his endless quest to secure a slush fund that he can use to personally control large sums of money,” which represents “a disturbing approach to governing: a relentless push to create discretionary pools of money and leverage points of control that can be used to reward, punish, and command, all while trying to dodge legal and constitutional constraints.”
Yet given that Trump has claimed that the United States already has “taken in trillions of dollars in tariffs and other things”—and given that Trump says he can control payouts of these revenues—that raises only further questions about the legality of his $5,000 pledge. First, if these funds are already available, and in the control of the president, why are the payments not being made now, instead of after the election? Trump was unable to answer that question even in the gentle surroundings of a Fox News interview, and was reduced to suggesting that the Democrats “can’t do it.” But that is irrelevant. If Trump can—as he has asserted—make these payments on his own accord, without Congress, there is no means by which the Democrats could block the payments. Moreover, even if—contrary to what Trump has himself repeatedly asserted—congressional approval were required to make the payments, the Republican Party currently controls both Houses of Congress, so again there would have been no rational basis for Trump to delay seeking congressional approval for those payments until after the election—unless it is to use the prospect of those payments to buy votes for Republicans.
And this, in turn, brings us to a further point. Trump in his initial statement about this promise, repeatedly referred to these payments as a “dividend” to the American people, “[v]ery much like a successful company will do a cash distribution to its shareholders,” made possible “because of your great work and our tremendous economic success.” The official White House website reiterates that this is the “Trump Dividend,” “made possible by the strength of the American economy under his leadership.” The White House site further states that “[t]hat success belongs to the American people—and the Trump Dividend returns it to them.” But if this is a “dividend” that “belongs to the American people”—if it has been earned by, and should be “return[ed]” to, them—then what justification can there be for linking this to the re-election of a Republican House and Senate? This incongruity is further highlighted by Trump’s prior pledge of a $2,000 “tariff dividend,” noted above—which he did not condition upon re-election of a Republican Congress, but which he has now replaced with a $5,000 promise explicitly so conditioned.
This is what makes the Trump pledge potentially not only a bribe under § 597, but coercion under § 594 as well: Trump is telling the American people they can have what he has repeatedly said belongs to them, but only if they elect a Republican House and Senate—even though the money to pay the American people this “dividend” allegedly already exists, and can be paid, without any action by the House or Senate.[11]
Perhaps not surprisingly, this is not the first time Trump has suggested that he will withhold funds to punish those who do not vote as he wishes. Numerous media reports detail his efforts to withhold federal funding to punish “blue states” that vote against him.[12] It is not, however, necessary to rely just on those reports. In judicial proceedings earlier this year, the administration “freely admit that they made grant-termination decisions primarily—if not exclusively—based on whether the awardee resided in a state whose citizens voted for President Trump in 2024.” This has been held to be a violation of the Fifth Amendment’s guarantee of equal protection. But this also can be seen as a violation of 18 U.S.C. § 594, in that it coerces citizens of blue states to vote for Trump and the Republican Party, since they otherwise stand to lose benefits to which they otherwise would be entitled. It was precisely to prevent such blackmail to obtain votes by threatening withholding of federal funds that led Congress to enact §594. As the Public Integrity Section of the Department of Justice has explained: “[t]he Congressional debates on the Hatch Act show that Congress intended Section 594 to apply when persons were placed in fear of losing something of value for the purpose of extracting involuntary political activities.”[13]
Trump is hardly the first leader to try to use a combination of bribes and coercive threats to swing an election for his favored candidates: precedents can be found as early as colonial America[14], and as recently as elections in Italy, where Silvio Berlusconi promised to refund a property tax on Italians out of his own pocket if his party were to be elected. But these precedents, far from supporting Trump’s pledge here, all show why it should be seen as a corrupt bargain. As the Supreme Court explained in upholding federal limits on corrupt campaign finance practices, quoting its earlier decision sustaining convictions for intimidating a voter:
If the government of the United States has within its constitutional domain no authority to provide against these evils, if the very sources of power may be poisoned by corruption or controlled by violence and outrage, without legal restraint, then, indeed, is the country in danger, and its best powers, its highest purposes, the hopes which it inspires, and the love which enshrines it, are at the mercy of the combinations of those who respect no right but brute force, on the one hand, and unprincipled corruptionists on the other.[15]
II. Trump Is Not Immune With Respect to Statements Made in an Unofficial, Political Capacity
Assuming that the president’s pledge might fall within the ambit of federal criminal law, the question remains whether he would nevertheless be immune from criminal prosecution. The answer is that a claim of immunity is not available in this context, since he made the pledge in his unofficial, political capacity, as the Republican “Party leader” at a Republican Party event.
The presidential immunity announced by the Supreme Court in Trump v. United States., 603 U.S. 593 (2024) does not extend to a president’s speech or actions as a political party leader. The Court’s justification in Trump v. United States for presidential immunity rests on ensuring the president can perform his “constitutionally designated functions,”[16] none of which includes campaigning for his own office or for those in his Party, much less buying votes. The Court explicitly noted that there may be instances when “the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader.”[17]
Likewise, in Blassingame v. Trump, 87 F.4th 1 (D.C. Cir. 2023), the court held that a president acts in a private, unofficial capacity when engaged in campaign activity. As the D.C. Circuit there stated:
When a sitting President solicits donations at a fundraiser for his reelection campaign, fires a campaign pollster or hires a new one, or gives a speech at a party convention accepting the party’s nomination, it is straightforward to conclude that he acts in an unofficial capacity as presidential candidate rather than an official capacity as incumbent President.[18]
The Executive Branch is in accord. The Office of Legal Counsel opined more than 40 years ago that the president’s travel and participation in campaign events is done in a “political” capacity rather than an official one, as would be the case with “[a]ppearing at party functions, fundraising, and campaigning for specific candidates.”[19] And, in his challenges to the 2020 election, Trump himself acknowledged that candidates act in a personal, unofficial capacity.[20]
Here, Trump made the $5,000 promise as the Republican “Party leader” at a Republican Party “Mid-Term Convention,” during which he repeatedly implored the attendees to think of him as being “on the ballot.” He led those present in a pledge not only that they would vote, but that they would “cheat like hell” and vote whether they were “registered or not.”[21] Thus, the “content, form, and context” of this promise[22] all show that it was made in a political, unofficial capacity. Even if this could be construed as anything other than unofficial conduct, it would at most be subject to “presumptive immunity” under Trump v. U.S. As Barbara McQuade has noted, immunity is “limited at the outer perimeter of a president’s official duties,” and in any event “[t]his promise came from Trump as a political party member, not as president.”[23]
Moreover, to the extent that the vice president, the secretary of Commerce, and other appointees, have worked to reinforce and amplify the president’s promise, they would face exposure if that $5,000 “dividend” promise were found to violate federal criminal law. To be sure, no member of the Executive Branch is likely to face investigation or prosecution so long as Trump exercises control over the Department of Justice.[24] But the statute of limitations for these statutes is five years,[25] and thus their potential applicability will extend beyond this administration.[26]
Conclusion
In sum, Trump’s pledge appears to be a naked quid pro quo and coercive threat wrapped up into one: if voters elect a Republican House and Senate, they allegedly will get the $5,000 “dividend” that is supposedly theirs by right, even though the House and Senate have nothing to do with that payment being made; but if the Republicans are not re-elected, then the “dividend” will unilaterally be withheld by Trump from the American people. If Sections 597, 10307(c), and 594 do not guard against such a blatant “process of auction or barter,” then we indeed will not be a “body politic worthy of being called a democracy.”[27]
– Bruce Swartz, Harry Seavey and Cara Barazia, Published courtesy of Just Security.