The Common Law

I read the "Common Law" last month about whether it's legal for President Trump to pardon himself. Now I'm hearing all this chatter about Trump issuing himself a secret pardon that he can keep confidential until he needs it sometime in the future. Can he really do that?

Leading up to his last few days in office, there was enormous speculation that Trump might pardon himself, his adult children, or other political followers. And while Trump did issue pardons – including controversial ones for political cronies (Steve Bannon as one example) – he did not issue a pardon to himself and family members. Or did he?

It's possible that Trump could have issued pardons to himself or others while he was still president without issuing a formal, public announcement. This idea goes something like this – Trump signs the pardons while still president, hides them away in a safe place, never references them, and only brings them to light if and when it might aid in the legal defense of a friend, family member, or himself.

This raises an interesting legal question – can Trump really keep a pardon secret and then use it as a legal defense, sort of like a get-out-jail-free card in a monopoly game? And if he does so, would it be a valid legal defense? Like many of the legal norms challenged by Trump over the years, the answer is vague and unclear, in large part because no president has ever issued secret pardons, so the question has never been addressed by courts.

The U.S. Constitution gives the president the "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The above provision is the only constitutional reference to the president's pardon power, which isn't much to go on; although, it's clear the Constitution doesn't expressly require a public announcement of the pardon. Combine that with the historically broad view of presidential pardon power generally applied by courts in the past, previous comments from prominent figures involved in the Nixon impeachment proceedings (Lawrence Traylor, the pardon attorney at the Justice Department during the Nixon impeachment, was quoted as suggesting secret pardons are valid), and there's at least an argument that a secret pardon passes constitutional muster.

But is that really the correct result? It's true that courts have regularly held that the pardon power is broad, but the very notion of secret pardons undercuts the purpose of the pardon power. Pardons are intended to be public, which allows the recipient to receive its benefit. Secret pardons will erode public trust and will create judicial uncertainty and waste. Non-sitting presidents could alter court proceedings for decades. The public would know neither for whom nor how many secret pardons were issued. Lengthy investigations, costing taxpayers significant time and money, could be thwarted at the eleventh hour.

Congress could potentially clear up the vagueness surrounding the president's pardon power by passing legislation to prevent secret pardons. For example, days prior to Trump's departure from office, Congressman Raja Krishnamoorthi introduced the Presidential Pardon Transparency Act, which would require that all presidential pardons be disclosed within three days of being issued. Trump's preemptive secret pardon of himself would not prohibit his prosecution for violations of state crimes nor would it insulate him if he violates federal laws in the future (the pardon power only applies to federal crimes that were committed up to the time the pardon was issued).