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.
This view has gained traction recently. Rep. Raja Krishnamoorthi (D-Ill.) recently reintroduced the Presidential Pardon Transparency Act, a bill to prevent a president from issuing a secret pardon, and others have warned that Trump might have the power to do so.
Others, such as Margaret Love, who served as the pardon attorney for much of the 1990s, disagree with this assessment. “The president can do this pretty much in any form he wants, as long as it’s a public announcement,” Love said in 2017. “Stick your head out the window, yell it out in the street.” To Love, the most important factor is the publicity that would allow the public to hold the president accountable for clemency decisions at or near the time they are made.
In my assessment, as a scholar of the pardon power, I believe that is the correct view: Although the framers imagined a broad pardon power, secret pardons are untenable, likely inadvisable and perhaps unconstitutional.
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.
The question of secret pardons has arisen because Trump has distorted the pardon power in an unusual, although not unprecedented, way. He has used it not only to bestow forgiveness but to preempt prosecution — most recently in the case of his former adviser, Stephen K. Bannon. Ordinarily, under Justice Department regulations, those seeking pardons must wait until five years after completing their sentences before they can even file a pardon request. The key is publicity, not a particular written form. The president could — in theory, since he has been kicked off Twitter — tweet his grant of a pardon.
If a secret pardon were allowed, it could cause chaos in the courts. There would be no way to know when or if a secret pardon might emerge and wreak havoc with a long-running investigation. The result would be to undermine the predictability of the judicial process. No one would know how many there are, or who received them, or why, until they surfaced. A president could be out of office for weeks, months or years and still influence court proceedings.
Sometimes presidents demonstrate true courage when using clemency, for example, the Civil War amnesties, the Nixon pardon and the Vietnam-era amnesties. They made these decisions knowing they would be unpopular. Still, they made controversial choices and answered to the American public for them.
We may never know if Trump issued secret pardons in his final hours. If he did, he might have gambled too much on the likelihood that a court would one day recognize their validity.