A pardon question for lawyers

[PJMcK]

There has been talk that Trump may have granted so-called pocket pardons to his family, associates and possibly even himself. Here's a simple question that I haven't heard answered.

If the pardons are secret and are being held until an indictment, how do we know that Trump signed them as president and not sometime after he left office?

If the pardons are sent to the DOJ or the National Archives, they would be publicly available under the FOIA, wouldn't they?

Thanks, in advance, to anyone who can clear this up for me.

[SheltieLover]

1. I've wondered the same thing!

They need to do away with pardons, imo. Too much abuse!

[Siwsan]

2. They should, at the very least, not be allowed to pardon family or anyone who worked for them

in ANY capacity.

It's people like Leonard Peltier who deserve a pardon.

[SheltieLover]

4. Yes, I agree!

When I think of a legitemate reason for a pardon, I think of our country at war & some prominent person intentionally misleads to throw the enemy a curve ball.

OR cases where jury should have nullified but didn't. (Eg. All those folks in prison for 20 yrs for having a joint in their sock.)

It should never be used to excuse willful illegal activity! Especially coconspirators acting against our most sacred tradition of certifying votes!

[Cuthbert Allgood]

3. There is no precedence for a secret pardon.

They would be challenged very vigorously since they go against what the pardon is and how they are checked. Also, they put the courts in a horrible situation.

He didn't do any pocket pardons. He may act like he did, but there is no way.

[PJMcK]

6. Thank you

I agree with you that there probably aren't any secret pardons.

In any event, Trump's presidential powers ended when President Biden was sworn in. If he did try anything, the documents would have to be in the public record or their validity would be questionable.

[LastDemocratInSC]

5. Isn't there a formal pardon issuance process in DOJ?

Where a person applies after serving a sentence for a number of years, his case is reviewed, same with his behavior while in custody, or after release from custody, and a recommendation is made to the President?

TFG was handing out pardons left and right to his buddies to keep them silent and dangling the possibility of pardons to his co-conspirators which is pure witness tampering.

[PoliticAverse]

9. Yes but that's a matter of convenience for the executive branch not a requirement for the President

to follow.

[PoliticAverse]

7. The only lawyers whose answer to that matters would be the 9 on the Supreme Court...

when the resulting case is brought before them.

[Mr. Ected]

8. I've been led to believe that the pardon power is virtually unlimited and has never been challenged

Like so much else in our government, checks and balances are supposed to keep the players on the up and up, but when a distinctly corrupt political party seizes control, not only are those protections rendered useless, their unethical behavior isn't necessarily illegal, at least by virtue of court precedent.

If only the Founding Fathers had foreseen political parties circa 2000, they may have put more teeth into their machine.

[melm00se]

12. You have been led to believe correctly

Presidential pardon powers are explicitly spelled out in Article II, section 2:

...he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

The Supreme Court has ruled 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.

Any attempt, by Congress, to use their legislative power to limit presidential pardons would get bitch-slapped by the Court as the wording of the Constitution is unambiguous and doing so would breakdown the separation of powers. This was attempted once before and the Court ruled thusly.

Of course, there will be some who would say that pardons impacts the separation of powers as the courts have jurisprudential powers. In the case of pardons, they fall into the "checks and balances" column. Congress has a check and balance power over this by deploying their impeachment power over the president should the president abuse this power.

The only way that pardon power could be reigned in or significantly alter it would be via amending the Constitution. It is highly unlikely, barring an extremely egregious abuse, that such an amendment would be ratified by the states and even then, the change could not be made ex post facto without another amendment allowing for ex post facto actions (which would open a far far far far far bigger can of worms than any presidential pardon).

[GregariousGroundhog]

13. The question I have though is how does the president execute their power to pardon?

If Matt Gaetz gets charged for something and claims Trump "I pardon you" during an alcohol and drug fueled orgy at Mar a Lago, is the burden of proof on the prosecutor to disprove that? What happens if Matt Gaetz pulls out a 100 dollar bill with "I pardon you" scrawled on it along with Trumps signature and cocaine residue? Is that enough to execute the presidential pardon power?

[melm00se]

18. I believe that a presidential pardon

is recorded via the Office of the Pardon Attorney with the National Archives.

[unblock]

11. A reasonable court would insist on clear evidence that the pardon was legit

At least that Donnie granted it while he was president.

If there's no evidence that it was granted during his presidency, a reasonable court would reject it.

Whether we have a reasonable court system is increasingly in doubt....

My guess is Donnie didn't grant any secret pardons. I think what he did is promise pardons if and when he gets a second term. Dangling a future pardon over someone is far more useful to Donnie than actually granting one.

[MineralMan]

14. I doubt very much that there were any "pocket" pardons.

I will be very surprised if any such thing turns up. Trump, in his spite after losing the election, most likely refused to pardon people who didn't keep him in office. People like Meadows and Eastman, for example. "You didn't save my presidency, so no pardon for you."

[inthewind21]

15. Or

He didn't issue them because he needs people to thrown under the bus? My money is on fall guys.

[MineralMan]

16. Yes, that, too, although those "fall guys" could turn out to be

witnesses against Trump. But, he's not smart enough to get that...

[onenote]

17. Pocket pardons are figments of some folks' imaginations.