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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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    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
    Commented Jan 22, 2021 at 15:31
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    @Clockwork How would the offenses to be pardoned change the answer?
    – bdb484
    Commented Jan 22, 2021 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
    Commented Jan 22, 2021 at 15:40
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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
    Commented Jan 22, 2021 at 16:16
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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
    Commented Jan 22, 2021 at 21:22

1 Answer 1

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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.

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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
    Commented Jan 22, 2021 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
    Commented Jan 22, 2021 at 21:35
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    @JoL What do you interpret the second one to mean?
    – Matt
    Commented Jan 22, 2021 at 22:21
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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
    Commented Jan 22, 2021 at 22:48
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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
    Commented Jan 23, 2021 at 17:16

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