If Trump can issue secret pardons, what stops him from issuing them later & backdating them?

[highplainsdem]

Last edited Tue Jan 19, 2021, 01:30 AM - Edit history (1)

Seeing that question a lot on Twitter tonight in response to Lawrence O'Donnell talking about secret pardons -- but not mentioning the possibility of them being backdated after Trump leaves office.


I'm editing this a third time (after the two edits below with links to articles about how Trump could use secret pardons) because Elizabeth de la Vega tweeted on this subject this evening, and her comments -- she thinks secret pardons are extremely unlikely -- are interesting. I'm going to add them after the two edits below, though.


Editing to link to a CNN opinion piece from last month explaining that the Constitution does not force Trump to make public, file, or disclose pardons at any time, including before he leaves office.


https://www.cnn.com/2020/12/23/opinions/donald-trump-potential-bizarre-pardons-alonso/index.html

Trump's pardon power derives from a brief clause in the Constitution that simply gives him the authority to grant "Reprieves and Pardons" for federal offenses. But the Constitution imposes no requirement that a pardon be made public, filed, or disclosed at any time, including before the President leaves office. Although a federal law, the Presidential Records Act, does require that all presidential decisions be adequately documented — and that those records be filed with the National Archives when the President leaves office — the law is relatively toothless and does not include a process for enforcing it.

More importantly, the failure to keep a pardon on file under a law passed by Congress could not supplant the President's authority under the Constitution. As the Supreme Court has held, a presidential pardon is a defense to a federal prosecution that takes legal effect if someone under indictment presents it to the court in response to the charges. We saw with the dismissal of former Trump National Security Adviser Michael Flynn's prosecution earlier this month that all that is necessary to nullify criminal charges is that the pardon have been genuinely issued by the president, cover the crime or crimes at issue, and have been accepted by the recipient.

The validity of any secret pardons revealed later could of course be questioned. Prosecutors could say that there was no proof the pardons were issued before Trump left office.

But we know how willing Trump has been to break the law and expect the courts to let him get away with it.



Editing again to add another opinion piece, this one from The Hill, a few days ago:


https://thehill.com/opinion/criminal-justice/534222-how-to-stop-trumps-secret-pardons

There is nothing in Article II, Section II, preventing President Trump from signing a document granting a pardon, and then putting the paper in a safe at any of his golf resorts. He is not even required to notify the recipient.

That is right, America: Trump can secretly pardon whomever he wants on his last night in office and have those “get out of jail free” cards available if needed. Given the pardon granted Richard Nixon, the scope can be broad.

-snip-

Why not use the power of the legislative branch to thwart Trump’s last gasp attack on the rule of law? We, therefore, urge Congress to immediately enact a law limiting the power of the president to issue secret pardons. The constitutional legality of any pardon is solely a determination for the judicial branch. Therefore, Congress could pass a law saying that any pardon revealed after a president has left office will be presumed illegal. Shifting the burden of proof in this fashion is consistent with Article II, Section II.

There is a crucial legal difference between the power to issue pardons and the role of the judiciary in determining the legitimacy of the action as a matter of law. The legislative branch, acting in the public interest, has a legitimate interest in ensuring a secret pardon was not issued after a president left office.

-snip-

Editing a third time (as noted near the start of this OP) to add tweets on why secret pardons are unlikely, from Elizabeth de la Vega (if you don't recognize her name, see https://www.thenation.com/authors/elizabeth-de-la-vega/ for some of her background):

Link to tweet

Link to tweet

Link to tweet

[Make7]

1. I think 'secret' means secret from the public, I imagine paperwork has to be filed.

Otherwise, without an ability to verify when the pardon was issued, it could not be considered legally binding.

Just speculating... IANAL.

[servermsh]

2. I'd have to assume he'd have to demonstrate evidence the pardon was issued while he was President

[jmowreader]

3. You mean, issue the pardons on the 24th or 25th but date them the 19th?

Any pardon Trump wants to issue has to be turned in to the Justice Department before he leaves office, so backdating a pardon issued after Biden is inaugurated won't work.

[exboyfil]

4. Doesn't say so in the Constitution

If they are turned into the DoJ, then the new AG should just order they all be made public. It does not serve the interest of justice for them to be secret anyway. An entire investigative strategy is changed by the existence of pardons.

[jmowreader]

6. The Constitution is clear on this

The President "...shall have power to grant reprieves and pardons."

It doesn't say anything about the shithead who was rendered jobless on January 20th.

[Bluethroughu]

5. Great point!

A pardon should be full transparency, this Constitution is the Peoples' document and execution of its powers should be publically documented.

[Fiendish Thingy]

7. I think you've gone off the deep end...

You’re quoting the right wing source the Hill on a far fetched scheme that no serious person has suggested is possible or plausible.

Any secret pardon kept in a safe by Trump would be worthless after January 20. In 2009, George W. Bush issued a pardon, learned new facts about the case, changed his mind, and aides had to scramble to retrieve the copies of the pardon, which were en route to DOJ and the recipient, IIRC, just hours before he left office.

[highplainsdem]

8. Try reading more carefully. The author of the opinion piece at The Hill is a former chairman of the

Virginia Democratic Party.

I also quoted a similar piece from CNN.

Read what the authors of both pieces explained.

[PoliticAverse]

9. That was able to happen because the courts have found that a pardon can be widthdrawn _before_

it has been delivered to the recipient.

A pardon issued by Trump while he was still President but not delivered to the recipient would still be valid but could be withdrawn President Biden before it was delivered.

[kentuck]

10. Surely someone would challenge it in Court?

It sounds like nonsense.

[TomSlick]

11. It would be easy to prove a secret pardon was not back dated.

All he needs to do is to mail it to himself and keep the envelope sealed until he needs it.

[greenjar_01]

12. Ridiculous

Honestly, sometimes I wonder whether what people say is correct: some on the Left actually enjoy being obsessed with Trump.

He's leaving office. He's gone. We can get on with the business of the country. People need to stop inventing moronic reasons to keep giving him attention.