6

Say there exists some individual who is in danger of prosecution for federal crimes, though it's not yet certain what the exact charges will be, nor even whether the indictment will be made at all. An outgoing president wants to ensure this individual remains protected, even after he leaves office, and so considers issuing a blanket pardon to this individual for any and all crimes they may have committed (similar to how Ford pardoned Nixon). However, the president knows that such a move would be wildly unpopular and so wants to mitigate the risk of tarnishing his own reputation and legacy.

In such a scenario, could the president issue a pardon in the presence of witnesses who agree to hold it confidential, and then not publish it? Copies of the pardon would be given to the individual in question, and maybe also to the soon-to-be-ex-president and the witnesses. The individual does not disclose the pardon unless and until they are actually charged with or indicted for a crime, thus sparing the president any embarrassment in the event that the charge or indictment never happens. The authenticity of the pardon can be confirmed, if necessary, by checking with the ex-president and/or the witnesses.

Is there any law which prevents this scenario from playing out? If so, would it invalidate the pardon itself, or would it just constitute a separate crime for those party to its clandestine issuance?

2
  • Can it be done? Or can it be legal?
    – Trish
    Oct 24 '20 at 10:02
  • I am not sure what this question is technically asking. I don't know of a legal way that a President has to make the pardon public. So in your framing, every pardon is "secret". Presidents often publicly announce their actions. And they may announce pardons to make their application more effective. Are you asking if a pardon must be some sort of public record?
    – grovkin
    Oct 24 '20 at 21:55
1

As a practical matter, a pardon needs to be disclosed to be effective. Authenticating a pardon would be much more difficult if it was was not disclosed, making it much harder to utilize.

No U.S. law prevents a pardon that is issued from being a public record subject to disclosure, e.g., via the Freedom of Information Act, so there is a compulsory process by which one can force the disclosure of pardons. There are also laws which require that records be kept of all Presidential activity, including pardons. There are also laws requiring that statistical information about pardons be disclosed by the bureaucrats in charge of handling pardon requests.

This said, publication before it is disclosed to be effective is not legally required for a pardon. So, as a practical matter, the disclosure of a pardon could be delayed significantly.

0

This has come up in congress. At least once a law to make it clear that pardons can't be secret was proposed -

“There is currently no requirement that the President disclose pardons, even as he has reportedly weighed using them to sabotage Special Counsel Mueller’s investigation,” Rep. Krishnamoorthi, who was first elected in November, said in a statement. “The President has the power to pardon but the American people have the right to know how and when he has. The Presidential Pardon Transparency Act will establish this principle in law.”

5
  • This is outside of Congress' authority. Regulating of pardons is not an enumerated power of Congress.
    – grovkin
    Oct 24 '20 at 21:49
  • 1
    SInce the bill was not passed and therefore not addressed by the SCOTUS there might be differing opinions on its constitutionality. Oct 24 '20 at 23:29
  • in the absence of an opinion, the accepted norm is the norm. And the accepted norm is that it is outside of Congress' authority.
    – grovkin
    Oct 24 '20 at 23:46
  • @grovkin - Do you say there is an accepted norm becasue thus has come up before? I image there are a spectrum of views on how strictly to limit congressional powers. Oct 25 '20 at 0:29
  • the challenges to limits of Congressional power are on the margins. They are mostly procedural and on matters not clearly stated in the Constitution itself.
    – grovkin
    Oct 25 '20 at 2:50
-3

Yes, this can (and has) happened (at least the pardon part).

In 1866, the Supreme Court case Ex Parte Garland asserted that:

The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.

(Emphasis mine)

Now the President doesn't have to do this in secret. He can issue the pardon to the person for all federal crimes, even those that are not under legal process, but not future federal crimes. The pardon is only valid for any offenses committed prior to the pardon. The President doesn't have to advertise that it was done either, so I think the "keep it secret" part of your question is a moot point, the President wouldn't need to do that.

As said above, any pardon issued for a future crime however would not be valid. A pardon isn't a "get out of jail free" card. You can't bank one and use it later, so even if the President had signed it in secret, with witnesses, if the crime was committed after the pardon was issued, the pardon would be invalid for those crimes.

8
  • Your answer focusses on the questions of whether it is possible to issue a blanket pardon, and whether this can apply to future crimes, though these issues are absolutely not what I am asking about. I already know (per my Nixon example) that blanket pardons for past crimes are permitted, and my scenario does not suppose that the pardon is being issued for future crimes. My question is solely about whether it is possible to issue a pardon secretly and to reveal it only at the last possible moment to avoid a successful prosecution.
    – Psychonaut
    Oct 24 '20 at 15:10
  • Why would you need to though? What does holding it secret buy you? You don't need to be charged for a pardon to be effective.
    – Ron Beyer
    Oct 24 '20 at 15:27
  • 3
    The question is assuming that the president and the pardonee both want to keep it secret for political reasons. Oct 24 '20 at 15:39
  • 2
    "I think the 'keep it secret' part of your question is a moot point, the President wouldn't need to do that." = "I have decided to ignore the entire point of your question and answer a different, easier question."
    – bdb484
    Oct 24 '20 at 16:28
  • @bdb484 I think you skipped over the part of that sentence that answers the question... "The President doesn't have to advertise that it was done either [...]". So yes, the President can sign a pardon in secret, he doesn't need any witnesses other than those normally involved. Pardons aren't "published". No party involved is under any constitutional or federal law to disclose it...
    – Ron Beyer
    Oct 24 '20 at 23:42

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