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I've seen quite a few widely-circulated tweets saying that Trump doesn't have to announce pardons, and we might not find out he's pardoned himself (or family members) until/unless they are indicted. (Example tweet)

Is this true? How is the record kept of who Trump has pardoned? Is it secret? How is it verified that Trump issued the pardon while he was President and he's not just making it up as a defense at a later time?

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thosphor
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    I'm missing on a lot of context here (mostly because I don't watch nor read the news). What would he need a pardon for? – Clockwork Jan 22 '21 at 15:31
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    @Clockwork How would the offenses to be pardoned change the answer? – bdb484 Jan 22 '21 at 15:37
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    @bdb484 I don't know much about laws, so I'm making the assumption that you wouldn't need a pardon if you have no reason to need one... I think? – Clockwork Jan 22 '21 at 15:40
  • @bdb484 Suddenly, I'm beginning to wonder if I wasn't actually thinking about sub-questions without knowing it (e.g.: Is the pardon generic or is it for specific offenses? Can you just have one in your pocket like a "Get Out of Jail Free card" from Monopoly? Basically, would you be able to issue a pardon if there's nothing?). I think I should just head over to wikipedia. – Clockwork Jan 22 '21 at 15:46
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    A pardon ca protect against future prosecution for past alleged crimes, and can be general, not specifying particular crimes, although they seldom are. One can be issued when the executive thinks acts were not crimes, but might be incorrectly charged as crimes. – David Siegel Jan 22 '21 at 16:16
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    @Clockwork Yes, having at least a basic knowledge of the things that have been happening in the world would probably be a good idea before commenting! You don't consume the news at all??? – Asteroids With Wings Jan 22 '21 at 21:00
  • @AsteroidsWithWings I would like to answer that question, but I don't want the comment section to become a chat either. – Clockwork Jan 22 '21 at 21:17
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    @Clockwork Well, it was a rhetorical question. :) Good night – Asteroids With Wings Jan 22 '21 at 21:18
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    @Clockwork For reference, Nixon's pardon was very general, covering "all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974". Basically, a Get Out of Jail Free card for any and all federal crimes committed in that 5-year period. Although, this very broad pardon has never been tested in court. – Nuclear Hoagie Jan 22 '21 at 21:22
  • See also: Can President of the United States pardon himself if convicted of treason or some other wrong doing? – Michael Aug 09 '22 at 21:17

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There's no settled legal answer to this, but there seems to be a general consensus that this would not be legal under the Impeachment Clause, which says:

The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

There would be two main issues here:

1. Can a president pardon himself?

It's never been tried, so it's never been challenged, so the courts have never had a chance to say whether it's legal.

The main argument in favor of self-pardons is that the constitution grants broad pardon authority for any offense against the United States, making an exception for impeachment, but not for self-pardons. The response to that is that the constitution uses all kinds of broad language that everyone agrees is not as broad as it sounds; Congress is not allowed to abridge the freedom of speech, but perjury laws are nonetheless constitutional.

There are several theories as to why the self-pardon would be illegal, but they mostly come down to two main ideas -- that our legal system does not permit anyone to be the arbiter of their own case, and that a person subject to impeachment may not be pardoned.

2. Can a president issue secret pardons?

Again, it's never been tried, so it's never been challenged, so the courts have never had a chance to say whether it's legal.

And again, the primary argument in favor of secret pardons is that the Pardon Clause grants broad pardon authority without requiring that pardons be publicized. The main arguments against are (1) that presidential pardons are inherently public acts, as they have no effect if the justice system doesn't know about them, and (2) that the Presidential Records Act requires official White House records to be transferred to the National Archives.

bdb484
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    Technically, you can only say that it's not known to have ever been tried, but functionally that's equivalent to (what you did say that) "it's never been tried." Also, does a violation of the Presidential Records Act invalidate a record? – grovkin Jan 22 '21 at 18:12
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    A person subject to impeachment may absolutely be pardoned. They just cant be pardoned to prevent impeachment. – Matt Jan 22 '21 at 21:35
  • Can you clarify how congress would have the power to limit pardons the way you describe? (Through the presidential records act) Surely congress cant place additional requirements upon pardons as that power is granted to the president not congress. (Assuming the publication of the pardon is not implicitely required by the consitution, as it very well may be.) – Matt Jan 22 '21 at 21:40
  • @Matt Can't the clause be read both ways? "(shall have Power to grant ... for Offenses ...), except in Cases of Impeachment." VS "shall have Power to grant ... (for Offenses ..., except in Cases of Impeachment.)" Honestly, the first interpretation is what I understood, but it seems you're reading it like the second. – JoL Jan 22 '21 at 22:17
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    @JoL What do you interpret the second one to mean? – Matt Jan 22 '21 at 22:21
  • @Matt Well, I'm trying to see where you got your interpretation from ("They just cant be pardoned to prevent impeachment"), and that's where I'm guessing you're getting it from. I.e. they can pardon anything except for offenses that are the subject of an impeachment. Whereas I understand the first to mean they can use their powers of pardon only when they're not being impeached. – JoL Jan 22 '21 at 22:22
  • @Matt For the second interpretation, I would have expected it to be written more like "except [for those that are] in cases of impeachment", so I lean towards the first interpretation, that their power of pardon exists only under the condition of that they're not being impeached. Though, of course, if a court has said otherwise at any time, then that's that. – JoL Jan 22 '21 at 22:33
  • @JoL Neither of those is correct (or maybe one was just incomplete). The president has all of his powers while being impeached. He only loses them if the senate votes to kick him out at the point they vote. The normal interpretation is that the president has the power to parden any offence that is against the US (not against a state). There is one exception to this: the pardon does not stop impeachment. You can however pardon the offence that the impeachment is about, but the impeachment continues. – Matt Jan 22 '21 at 22:47
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    @JoL The clause says just "Cases of Impeachment", and the President is not the only person who can be impeached. If it were intended to refer specifically to when the President is being impeached, I would expect wording to narrow it down to cases of Presidential impeachment. It makes much more sense to me that this clause is prohibiting the executive from meddling with the legislative function of impeachment, part of the principle of separation of powers, not placing a situational restriction on pardons. – Douglas Jan 22 '21 at 22:48
  • It appears that President Trump flagrantly violated the Presidential Records Act many times and that the penalty for violation of the PRA is "Prevents an individual who has been convicted of a crime related to the review, retention, removal, or destruction of records from being given access to any original records." - no jail time, no fines. He can still read the presidential records, just not original copies of the presidential records. – emory Jan 22 '21 at 23:47
  • @Matt I'm not sure you're right about whether Congress can limit the pardon power. I think it's probably true that Congress couldn't say, "You may issue pardons for X, but not for Y," but it would be a lot less controversial to impose reporting requirements surrounding the exercise of the pardon power, as it does in the campaign-finance context. Of course, this raises the question of whether the failure to adhere to those requirements means that the pardon is invalid, or simply that there can be some proportional penalty imposed instead. – bdb484 Jan 23 '21 at 05:03
  • People, if you want to know the background to the exception to the pardon power, and its whys and wherefores, you need to look at history prior to the formation of the United States, in particular to the Act of Settlement 1701 and the impeachment of Thomas Osborne, Lord Danby, in 1679. The Parliament of England created this exception in the 17th century, declaring (in the Commons) "illegal and void" a royal pardon that was presented as a bar to impeachment. – JdeBP Jan 23 '21 at 13:49
  • Correct. There's a link to an article discussing this background in the answer. – bdb484 Jan 23 '21 at 16:31
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    Actually, there isn't because none of them seem to discuss 17th century history at all. In any case, why would one, on Law Stack Exchange, cite a politics professor when there are SCOTUS opinions from Chief Justices Marshall and Taft to be had on the subject? (-: I would start with Marshall's opinion in United States v. George Wilson. – JdeBP Jan 23 '21 at 17:16
  • I would think that there would have to be laws and regulations related to pardons, if nothing else to allow a prison warden who is told "Fred Jones [arbitrary name] was just pardoned" to reliably determine whether that is true before letting Fred Jones walk out the door. I would not think it unreasonable for such laws to specify that the prison officials must consult the officially published (and publicly available) list and confirm that any prisoners claiming to have been pardoned are on that list before releasing them. – supercat Jan 23 '21 at 20:41
  • @JdeBP I think you may not have read the links you're dismissing. The CNN article addresses the Danby Affair, which seems to be exactly the 17th-century history you're relying on. – bdb484 Jan 24 '21 at 04:40