What if before he walked out the White House door on January 20, 2021, then-President Donald Trump signed secret pardons for his associates, family, and even himself? If no one else was informed, and the single copy of each pardon now resides in Trump’s safe at Mar-a-Lago? Would the pardons be legal?
This is an urgent question as prosecutors dig into the conduct of Trump and many figures in his orbit. Trump’s former fixer, Michael Cohen, has said he thinks “pocket pardons” for the former president, his children, and Rudy Giuliani are “stashed away somewhere.”
Article II, section 2 of the Constitution provides the President with the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” without reference to public notice. But publication of pardons has been the unbroken norm. To the best of our knowledge, no president has ever issued a secret pardon. State governors who have attempted them have been rebuffed.
Secrecy disrupts the implicit bargain inherent in the pardon power: The president can clear criminal records and reduce sentences, but only while in office, and subject to accountability to a public that votes and to a Congress with the power to impeach, and then even bar a former president from future office. Secrecy, therefore, reduces accountability.
Worst of all, the combination of secrecy and the unique permanence of pardons could allow a former president who is willing to lie about when a pardon was signed to do something constitutionally intolerable: Exercise a formal power of office after leaving office. Congress should make clear secret pardons are impermissible, and any prosecutor or court presented with one should deem it invalid.
THE CASE FOR THE LEGALITY OF PARDONS
Of course, the courts and Congress will want to conduct a full evaluation of the competing cases about the legality of secret pardons.
The case for the legality of secret pardons rests first and foremost on silence. Article II of the Constitution’s text says nothing about whether a pardon must be published. In contrast, Article I of the Constitution stipulates explicitly that Congress from time to time must publish an accounting of spending and revenue, and publish its journals, except those parts that Congress decides must remain secret. Maybe these textual differences are meaningful. Maybe Article II’s comparative silence on pardon publication means that it is a matter of never-exercised presidential discretion.
A second key element of the case for secret pardons is the doctrine that the pardon power is nearly without limit. The Constitution’s text does not provide decision criteria. No categories of persons nor specific offenses are excluded. A recipient need not be already convicted or sentenced. The Constitution has no stipulations as to what a pardon must say. In contrast, another part of Article II of the Constitution is explicit about the president’s oath of office. And unlike the pardon power in some states at the Founding, the president’s power does not require the advice or agreement of the legislative branch.
Alexander Hamilton’s eloquent defense of the Constitution in The Federalist Papers underscores generally applicable executive virtues in our system, including unity of decision, dispatch, and secrecy. Our constitutional system has a default of permitting executive action unless it is barred by the Constitution or checked by another branch of government exercising its powers.
So, absent a bar on pardon secrecy in the Constitution’s text or in statute, should our constitutional system permit a new precedent of secret pardons?
THE STRONGER COUNTER-CASE: SECRET PARDONS ARE INVALID
No, it should not.
First, it is meaningful that the Constitution’s text explicitly allows secrecy regarding Congress’s journals, but is silent about pardon secrecy. The framers of the Constitution anticipated secrecy in one case but not the other. Similarly, there is no question that the framers understood that the president would employ secrecy in the conduct of foreign relations, but there is no equivalent evidence that the framers believed the president could issue pardons secretly. Silence does matter, in short, but it cuts against the legality of secret pardons, not for it. And if anything, Hamilton’s discussion of the pardon power in The Federalist Papers conceives it as a very public act.
Second, contrary to conventional wisdom, the president’s pardon power is actually not limitless. It includes only federal criminal liability, but does not extend to impeachment. The Supreme Court has made clear that a pardon is not prospective. It concerns only conduct in the past, and cannot operate as a license for future crime. Also, a pardon is not authorization for conduct banned by the Constitution or other law: As a condition for pardon, the president could not require that the recipient pay a bribe, establish a government church, or commit a murder, for example. In short, the power is limitless only in the types of federal crimes (except impeachment) that may be pardoned, but otherwise is cabined in ways that respect other vital constitutional provisions and legal principles.
One of those principles is our constitutional order’s default of transparency, which has operated uniformly against pardon secrecy.
This is a third powerful argument against the legality of any “pocket pardon” in the Mar-a-Lago safe: The constitutional record since the Founding — a vital source of meaning about the Constitution— reflects an unbroken norm of publication of presidential pardons. This vital “practice precedent” over the 233-year history of the republic runs against the legality of secret pardons. Law on pardons varies by state, but pardon secrecy has been rejected in several states, too.
There is a good reason for our constitutional heritage’s hostility to pardon secrecy: It disrupts accountability. Secrecy evades the bargain inherent in the pardon power. The chief executive gets expansive power to clear criminal records and reduce sentences, voters understand, subject to appraisal of presidential judgment in the light of day. Transparency allows the electorate to reward or punish the president and their party electorally. Transparency allows Congress, in case of bribery or other malfeasance related to a pardon, to impeach — and then to remove a sitting president, to bar a former president from future public office, or both. Secrecy disrupts the feedback loop.
Just over a decade ago, in a case about release of the names of pardon applicants who are denied, a federal judge in Washington, DC, emphasized that the public has an interest in “the most basic information about the executive’s exercise of his pardon power and who is and who is not granted clemency by the President.” (Her ruling for publication was upheld on appeal). That public interest is logically greater still regarding pardon recipients: people whose liability for violating the law of the land has been swept away, removed not by a judge with life tenure but by a politician.
THE PROBLEM OF PARDON PERMANENCE
Worst of all, pardon secrecy imperils two bedrock constitutional principles we dare not weaken: That everyone is subject to the law, and that the presidency’s powers under Article II of the Constitution depart an individual when their term is over.
Let me explain why these elementary constitutional precepts would be put at risk by pardon secrecy, and how pardon secrecy intertwines them and presents a unique threat to the Constitution because of the unique permanence of pardons.
Publication of a pardon establishes three vital things: Who is pardoned, for what offense(s), and — most importantly — that the pardon was issued while the pardoner lawfully had the powers of office. A former president who after expiration of their term pulls from their pocket a secret pardon that they claim they signed while in the White House demands that we trust that they are not lying about any or all of these three things.
Worst of all, the combination of secrecy and the unique permanence of pardons could allow a former president who is willing to lie about when a pardon was signed to do something constitutionally intolerable: Exercise a formal power of office after leaving office.
Lack of a publication requirement when the pardon is issued creates inherent risk that a former president can, whenever they please, concoct a pardon on a back-dated document. A former president could at any time excuse any federal crime committed through the end of their term, by anyone. Intolerable dangers to the constitutional order flow from that power. One is that federal criminal law would cease to apply to people in a former government official’s favor for any federal crimes prior to the end of the former official’s term in office. The other is that a former president could lie their way to exercise of a power of the presidency after the end of their term.
This powers-beyond-term’s-end problem is a special constitutional problem of pardon secrecy, stemming from a pardon’s irrevocability.
Imagine for a second if a former president — upset at the policies of their successor — stunned everyone by pulling from their pocket an order to the military to attack North Korea, claimed that they signed it during office, and wished the armed forces luck in executing their missions. Nobody would regard that war order as valid. The fact that it was never delivered to anyone while the former president was in office would make it suspect. And, in any event, everyone would look to the current president, who could instantly remove any shred of doubt by telling the military not to attack. It would be the same regarding an executive order on trade or immigration, revisions to the White House menu, or any other executive action. That is because any prior presidential order can be cancelled at any time by whomever currently is president (indeed, the president does not need to put anything in writing, or even tweet — a single verbalized word is enough).
Pardons are fundamentally different from any other exercise of presidential power because a pardon uniquely cannot be cancelled. A pardon is permanent. That permanence makes the constitutional danger with pardon secrecy permanent, too.
CONGRESS SHOULD ACT
Irrevocability makes a secret pardon even more problematic than the limited amount of secret law that my research has shown our country tolerates in all three branches of government. Unlike classified addenda to national security bills, unpublished executive branch directives and interpretations of law, and secret surveillance court opinions, a secret pardon could not be repealed, withdrawn, or set aside by a subsequent Congress, president, or court. We would be stuck with it.
The constitutional problem is acute in our current circumstance: A former president is contemplating another run, while also facing criminal investigations. Unlike a candidate running for the first time, a former president free to concoct back-dated secret pardons could permanently sweep away the federal criminal investigations and the accountability they represent.
For all of these reasons — both timeless and immediate — a pardon must not be considered valid until published. The pardons of former presidents must only have legal force if accordingly published prior to expiration of the president’s term, or as soon as humanly possible thereafter. One bill in Congress, for example, requires publication within three days.
Legislation requiring publication should be passed as part of a larger and time-urgent slate of pending repairs and enhancements to norms imperiled during the Trump years. The Supreme Court has been hostile to congressional restriction of the pardon power, but such a narrow and vital transparency statute may well pass constitutional muster. It would not block exercise of the power one iota, only require publication. A sunlight mandate from the elected representatives of the people would be doing vital constitutional work: Informing the public about presidential conduct, and preventing former presidents from usurping a power properly held only by a serving president. We have only one president at a time.
COURTS SHOULD REJECT SECRET PARDONS
Whether Congress can or does act, any court (or prosecutor) confronted with a secret pardon signed by an ex-president should reject it. The overwhelming weight of the constitutional record and equities against pardon secrecy does not make it a close call.
A claim by a former president that a witness was present in the Oval Office — or even a co-signature on a written secret pardon — does not fix things. Court imposition of a witness or co-signer requirement would only be a requirement that a lying former president work with another liar. Demanding a conspiracy of two is not sufficient protection for the Constitution.
Judges, the Department of Justice, Congress, and the public should give the question of secret pardons focused attention. They should inform themselves of the unbroken constitutional record. They should understand that a pardon is by its very nature a public act, one that transfers accountability from the accused or convicted to a sitting president. They should inform themselves of what is at stake, before they are surprised by an alleged “pocket pardon.”
Michael Cohen, Trump’s former fixer, knows how the former president operates, and has sounded the alarm. At risk is a vital norm against secret pardons — and nothing less than bedrock constitutional principles of electoral accountability, that everyone is subject to the law, and that the powers of office terminate with the end of a president’s term.
Dakota S. Rudesill is Associate Professor at the Moritz College of Law, and Senior Fellow and Co-Leader of Security & Governance Research at the Mershon Center for International Security Studies, at The Ohio State University. You can find his other writing here.
Correction 07/12: The sub-heading initially mentioned “presidential power.” It has been substituted for “the pardon power.”