Article II Section 2/Pardons

[Rexedgar]

Can the POTUS issue a “secret “ pardon?

A pardon that is not publicly declared?


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

 

[Athanasius68]

Can the POTUS issue a “secret “ pardon?

A pardon that is not publicly declared?


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

What would be the point?

 

[AliHajiSheik]

Can the POTUS issue a “secret “ pardon?

A pardon that is not publicly declared?


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

I believe that it can be "secret", but I would expect that there be an official way to date stamp when the signature happened so it doesn't happen after leaving office.

 

[Rexedgar]

What would be the point?

Ever play “Monopoly?”

 

[BlueTex]

What would be the point?

For crimes that the individual has not been charged with yet.

 

[Rich2018]

Can the POTUS issue a “secret “ pardon?

A pardon that is not publicly declared?


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

I've heard it called a "pocket pardon"

Bill Barr, former AG is rumored to have one.

 

[Cordelier]

Can the POTUS issue a “secret “ pardon?

A pardon that is not publicly declared?


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

It is possible to do so... but according to the Administrative Procedures Act (see 5 USC §552a (j)(2)), there would still have to be a record of the pardon on file with the DOJ, which the Attorney General could release. Additionally, either House of Congress or any committee or subcommittee with relevant jurisdiction could request the information as well.

 

[Rich2018]

It is possible to do so... but according to the Administrative Procedures Act (see 5 USC §552a (j)(2)), there would still have to be a record of the pardon on file with the DOJ, which the Attorney General could release. Additionally, either House of Congress or any committee or subcommittee with relevant jurisdiction could request the information as well.

Of course there would have to be a record of any pardon, the question is, would it have to be made public.

Could Trump secretly pardon himself and ensure that this pardon never comes to light - unless he is actually indicted for a federal crime ?

 

[Cordelier]

Of course there would have to be a record of any pardon, the question is, would it have to be made public.

Could Trump secretly pardon himself and ensure that this pardon never comes to light - unless he is actually indicted for a federal crime ?

He could secretly pardon himself, but he couldn't ensure that it wouldn't come to light once he was out of office. And if he did invoke it upon indictment, if I were the prosecutor I'd consider that an open-and-shut case of obstruction of justice.

 

[Parrish]

He could secretly pardon himself, but he couldn't ensure that it wouldn't come to light once he was out of office. And if he did invoke it upon indictment, if I were the prosecutor I'd consider that an open-and-shut case of obstruction of justice.

And it won't end well.

 

[Cordelier]

And it won't end well.

That'd be an understatement. Can you imagine the reaction of the judge when the prosecution had spent months or years and millions of dollars of resources compiling a case against a former President, went through the whole process of putting that case in front of a Grand Jury to obtain an indictment... only to have the accused suddenly reveal he had secretly pardoned himself long before the whole case was even initiated?

First off, there'd be the question of whether the pardon would even be valid, especially in light of the provision of the APA I cited earlier.

And then, second, issuance of a self-pardon to avoid a prosecution could in itself be considered obstruction of justice. In fact, if I were in AG Garland's shoes right now and I was made aware of the existence of such a secret pardon, I'd be seeing to it that the obstruction charge be prepared in advance of any other future action.

 

[Rich2018]

He could secretly pardon himself, but he couldn't ensure that it wouldn't come to light once he was out of office. And if he did invoke it upon indictment, if I were the prosecutor I'd consider that an open-and-shut case of obstruction of justice.

No, he couldn't ensure it remained secret - but it would be reasonable to assume it would be

How would it be an obstruction of justice ?
That is an obstruction of justice that didn't apply to ANY presidential pardon (bearing in mind that accepting such a pardon is an admission of guilt).

 

[Cordelier]

No, he couldn't ensure it remained secret - but it would be reasonable to assume it would be

How would it be an obstruction of justice ?
That is an obstruction of justice that didn't apply to ANY presidential pardon (bearing in mind that accepting such a pardon is an admission of guilt).

I don't see why it would be reasonable to assume it would remain secret. There is no precedent for secret pardons... or self-pardons, for that matter.

Presidential self-pardons are, by their very nature, an obstruction of justice. A President can only pardon past crimes... he can't pardon present or future ones. So if he signs a pardon absolving himself of past crimes in order to avoid future prosecution of them, then he can do so... but the very act of doing so is in itself an obstruction of justice.

 

[Grizzly Adams]

(bearing in mind that accepting such a pardon is an admission of guilt).

No.

It.

Isn't.

 

[Grizzly Adams]

Presidential self-pardons are, by their very nature, an obstruction of justice. A President can only pardon past crimes... he can't pardon present or future ones. So if he signs a pardon absolving himself of past crimes in order to avoid future prosecution of them, then he can do so... but the very act of doing so is in itself an obstruction of justice.

You're "answering" the question by re-asserting the claim. That's not how this works. Pardons are not an obstruction of justice, so you have to explain why a self-pardon is an obstruction when no other pardon is. Don't just reclaim that it's an obstruction of justice.

 

[Rich2018]

I don't see why it would be reasonable to assume it would remain secret. There is no precedent for secret pardons... or self-pardons, for that matter.

How many "pocket pardons" have come to the attention of the public ?

"A number of political commentators have speculated that Trump, in addition to awarding numerous pardons of dubious merit, may have also created what have been called “pocket pardons,” which they define as pardons which have not yet been made public."

Did Trump issue ‘pocket pardons?’

A number of political commentators have speculated that Trump, in addition to awarding numerous pardons of dubious merit, may have also created what have been called “pocket pardons,” which they define as pardons which have not yet been made public...

www.capegazette.com

So the term "pocket pardon" is well known, and you're wrong to say that there's no precedent for them

Presidential self-pardons are, by their very nature, an obstruction of justice. A President can only pardon past crimes... he can't pardon present or future ones. So if he signs a pardon absolving himself of past crimes in order to avoid future prosecution of them, then he can do so... but the very act of doing so is in itself an obstruction of justice.

All presidential pardons area an obstruction of justice to some degree, and it remains a point of debate as to whether a president can pardon himself. Since we know of no such instances, the Supreme Court has not ruled on the issue.

Incidentally, a pardon is not a complete obstruction of justice, since a recipient actually admits guilt and is therefore unable to cite the 5th Amendment on the issue.

 

[Rich2018]

No.

It.

Isn't.

Don't you ever get tired of being wrong ?

"The Supreme Court ruled that, as a pardon carries an imputation of guilt and acceptance carries a confession..."

Burdick v. United States - Wikipedia

en.wikipedia.org

Since a recipient actually admits guilt and is therefore unable to cite the 5th Amendment on the issue.
Or do you wish to dispute this as well ?

 

[Grizzly Adams]

Don't you ever get tired of being wrong ?

"The Supreme Court ruled that, as a pardon carries an imputation of guilt and acceptance carries a confession..."

Burdick v. United States - Wikipedia

en.wikipedia.org

Since a recipient actually admits guilt and is therefore unable to cite the 5th Amendment on the issue.
Or do you wish to dispute this as well ?

I do, because I knew you'd haul out the dicta from Burdick. See a Washington Post article on this topic:

But Burdick was about a different issue: the ability to turn down a pardon. The language about imputing and confessing guilt was just an aside — what lawyers call dicta. The court meant that, as a practical matter, because pardons make people look guilty, a recipient might not want to accept one. But pardons have no formal, legal effect of declaring guilt.

The article goes on to discuss the fact that, if accepting a pardon did carry with it an admission of guilt, how one would go about pardoning a person who was factually innocent.

No, accepting a pardon doesn't carry an admission of guilt.

 

[NWRatCon]

Can the POTUS issue a “secret “ pardon?

A pardon that is not publicly declared?


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

It certainly happens in movies and TV shows like Blacklist.

 

[NWRatCon]

... issuance of a self-pardon to avoid a prosecution could in itself be considered obstruction of justice. In fact, if I were in AG Garland's shoes right now and I was made aware of the existence of such a secret pardon, I'd be seeing to it that the obstruction charge be prepared in advance of any other future action.

And filing indictments under seal while litigating the validity of the attempted pardon so as to toll statutes of limitation. I am one of the opinion that "self pardon" is a legal impossibility.

 

[NWRatCon]

No.

It.

Isn't.

Yes.
It.
Is.

My reference is to the Supreme Court, and not your nether end:

Burdick v. United States, 236 U.S. 79 (1915), was a case in which the Supreme Court of the United States held that:

• A pardoned person must introduce the pardon into court proceedings, otherwise the pardon must be disregarded by the court.
• To do that, the pardoned person must accept the pardon. If a pardon is rejected, it cannot be forced upon its subject.

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private though official act of the executive magistrate, delivered to the individual for whose benefit it is intended.... A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on.[1]

Wikipedia (you should be able to find it yourself). Specifically, the Court stated:

This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.

(Emphases mine).

Interestingly, Burdick seems to be relevant to the OP question: To be effective a pardon must be accepted and pleaded before the court. It cannot, therefore, remain secret.

 

[NWRatCon]

You're "answering" the question by re-asserting the claim. That's not how this works. Pardons are not an obstruction of justice, so you have to explain why a self-pardon is an obstruction when no other pardon is. Don't just reclaim that it's an obstruction of justice.

You do like to persist in being wrong, don't you? Even Bill Barr acknowledged, under oath mind you, that a pardon can be construed as obstruction.

 

[NWRatCon]

I do, because I knew you'd haul out the dicta from Burdick. See a Washington Post article on this topic:


The article goes on to discuss the fact that, if accepting a pardon did carry with it an admission of guilt, how one would go about pardoning a person who was factually innocent.

No, accepting a pardon doesn't carry an admission of guilt.

I can't reference your purported citation as it requires a subscription, but it was not, actually, dicta (whether your author claims that or not, I don't know). Rather, it was necessary to the resolution of Burdick and the efficacy of a 5th Amendment claim. Being a necessary element, it is by definition, not dicta: "A remark, statement, or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case."

 

[Rich2018]

I do, because I knew you'd haul out the dicta from Burdick. See a Washington Post article on this topic:


The article goes on to discuss the fact that, if accepting a pardon did carry with it an admission of guilt, how one would go about pardoning a person who was factually innocent.

No, accepting a pardon doesn't carry an admission of guilt.

What part of:

"The Supreme Court ruled that, as a pardon carries an imputation of guilt and acceptance carries a confession..."


Do you not understand ?

Are you denying that the SC has ruled on this ?

 

[Grizzly Adams]

I can't reference your purported citation as it requires a subscription, but it was not, actually, dicta (whether your author claims that or not, I don't know). Rather, it was necessary to the resolution of Burdick and the efficacy of a 5th Amendment claim. Being a necessary element, it is by definition, not dicta: "A remark, statement, or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case."

It was not necessary to decide that accepting a pardon was admitting guilt. The question at issue was not whether accepting a pardon was an admission of guilt. It was not necessary to the case.

You also again fail to explain how a person who claims to be factually innocent could accept a pardon.

As for the article, the problem must be on your end. I have no problem seeing it and I do not have a subscription to the Washington Post.