A question for DU lawyers

[PJMcK]

The other day, I read something somewhere that implied that Trump had provided numerous secret pardons to family and friends before leaving office. They were kept under wraps to be held until or if they were needed.

Don't pardons have to be filed with the Department of Justice or the courts? Aren't they public records?

Could this be a real thing?

Thanks, in advance.

[PoliticAverse]

1. People could give you answers, but the truth is...

the matter would only be determined finally in the courts.

> Don't pardons have to be filed with the Department of Justice or the courts?
> Aren't they public records?

Not necessarily until produced by the person claiming they had been pardoned.

By the way, this case is usually called a "pocket pardon" (because the President signs it and sticks in their pocket until such time they want to produce it).

[PJMcK]

9. Thanks for the insights

As with all things related to Trump, this could be a huge mess.

[PoliticAverse]

11. The real problem with a pardon not being made public when it is issued...

is what's to prevent a President from issuing a pardon after leaving office but claiming that it was issued while still President?

Suppose 5 years after leaving office someone is indicted and when they appear before the court they produce a previously non-public pardon claiming the President issued it to them while the President was still in office? Would the court believe them? Would the court require the President to testify as having done so? Would the court require witnesses to the act? This is an example of one of the reasons a secret pardon would be problematic.

[unblock]

2. Afaik,...

There's normal procedure and then there's what would hold up in court.

If someone at some point produced a pardon document with Donnie's signature dated while he was in office, I would think it would hold up in court, unless the court could be convinced it was a fraud, e.g., something signed after he left office and backdated.

[marie999]

6. I am not a lawyer, but I would think that a secret pardon if that is even legal

would have to be examined and the person who allegedly received it would have to prove it is real.

[unblock]

10. A pardon can be refused and is only valid when the recipient

presents it in court.

A "secret pardon" only makes sense if the recipient is in on the secret.

[Celerity]

3. Opinion: If Trump issued secret pardons, they won't work

https://www.washingtonpost.com/opinions/2021/01/20/trump-secret-pardons-validity/

Donald Trump left office with a spree of last-minute pardons, but is it possible there are more? Did the norm-breaking president break one more on his way out the door, issuing pardons in secret to his friends, family or even himself, break-in-case-of-emergency documents to be produced if necessary? If so, that would be a legally dubious step, inconsistent with the pardon power.

If Trump prepared pardons without telling anyone, he probably saw them as a way to satisfy two competing goals: avoiding offending Republican senators who could still vote to convict him in his impeachment trial and having a hidden defense ready if the Biden Justice Department proceeds against Trump or those close to him. Keeping the pardons quiet unless they are needed would also prevent Trump from appearing to dare the Justice Department to challenge a self-pardon, if he went that unprecedented route.

Nobody knows for certain whether a secret pardon would be upheld in court because it has never been tested. However, the pardon power as imagined by the Constitution’s framers is checked by the ballot box, impeachment and the judgment of history. How can a president be made answerable for decisions that no one knows about?

In the heat of Watergate, The Post reported that “there is nothing in the federal regulations that requires public notification," paraphrasing Lawrence M. Traylor, the pardon attorney at the Justice Department. “The president could present himself with a written pardon during the next months, date it and quietly deposit it in a trust vault — ready to be pulled as a defense or waiver at any subsequent trial,” The Post noted, according to Traylor.

snip


I am not a lawyer, btw

[PJMcK]

5. Thanks for the information

It's very interesting.

I guess Trump might have done this since he broke so many other rules, norms and laws.

[PoliticAverse]

12. "Nobody knows for certain whether a secret pardon would be upheld in court" n/t

[euphorb]

4. There's no solid answer, but see the article I link to below:

https://www.washingtonpost.com/opinions/2021/01/20/trump-secret-pardons-validity/

Excerpts:

"Nobody knows for certain whether a secret pardon would be upheld in court because it has never been tested. However, the pardon power as imagined by the Constitution’s framers is checked by the ballot box, impeachment and the judgment of history. How can a president be made answerable for decisions that no one knows about?"

"The notion of a secret pardon is an oxymoron. The very concept of a pardon is that it is a public act, granting mercy to the recipient. An ordinary pardon would have no force or meaning if it were kept secret. Moreover, a pardon kept from public view would frustrate an essential element of the otherwise absolute pardon power: public accountability through political consequences. Without knowledge of a president’s pardoning decisions, neither Congress nor the public may effectively check their clemency actions."

[PJMcK]

8. Thanks

I guess we'll just have to wait and see.

One thing about Trump: He can't keep his mouth shut. If he'd given those pardons, its' hard to imagine him not bragging about his use of the power.

[Hassin Bin Sober]

7. The Constitution says nothing about anything being registered.

I suppose the only question that could be raised is when he actually granted the pardon.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

[struggle4progress]

13. I would expect demands-for-proof that the pardon was issued timely

[PJMcK]

14. Right

And the resolution of that question would be decided in the courts, I expect. Which means that they could drag out the proceedings for a long time.