Donald Trump Can Issue Secret Pardons, but They're Risky

President Donald Trump issued 70 pardons and 73 commutations on his last full day in office on Tuesday. He did not issue pardons for himself, any of his adult children or former New York Mayor Rudy Giuliani.

Though the outgoing president avoided the most talked about controversial pardons, there is concern that he could issue "secret" pardons that could later be produced to defend against federal charges.

Legal consensus suggests Trump can issue a valid pardon without publicly announcing it but this could potentially complicate matters for recipients if they aren't able to show that the pardon was properly issued and delivered.

Brian C. Kalt is professor of law at Michigan State University. He told Newsweek that issuing secret pardons could be a risky strategy.

"My view is that a pardon need not be publicized at the time it is issued to be effective, so secret pardons are theoretically possible," Kalt said on Tuesday.

"But to be effective the recipient would need to be able to prove the pardon was issued properly and that could be a lot harder to do if it is not publicized at the time it is issued."

President Ulysses S. Grant famously rescinded two pardons issued by his predecessor Andrew Johnson in 1869 because the pardons had not been properly delivered to their intended recipients. This was a highly unusual case, however. A court later sided with Grant.

Jeffrey Crouch is assistant professor of American politics at American University and author of The Presidential Pardon Power. He told Newsweek that pardon recipients would have to make the pardon public in order to benefit from it.

"Assuming the president is able to issue secret pardons, he would likely keep them locked away somewhere as a type of insurance policy," Crouch said.

"This could be a way for President Trump to pardon his family members and possibly himself while avoiding public controversy. But if the intended recipient ever wanted to claim the benefit of the pardon, they would need to produce it. And then the secret would end."

Crouch pointed to a June, 1974 Washington Post article discussing President Richard Nixon's potential ability to issue a secret pardon for himself. Journalist Timothy Ingram cited then Pardon Attorney Lawrence M. Traylor in explaining the situation as he saw it. Nixon resigned in August of that year, becoming the first president to do so.

"According to Pardon Attorney Traylor, there is nothing in federal regulations which requires public notification," Ingram wrote. "It is his opinion that the President could present himself with a written pardon during the next months, date it and quietly deposit it in a trust vault—ready to be pulled as a defense or waiver in any subsequent trial."

However, there is dispute about whether the president has the power to self-pardon and if the move could be challenged. Secret pardons could also be subject to challenges on the basis that they weren't correctly issued.

Trump Waves on the South Lawn
U.S. President Donald Trump waves as he walks toward Marine One on the South Lawn of the White House on January 12, 2021 in Washington, D.C. Trump issued 73 pardons and 70 commutations on Tuesday. Drew Angerer/Getty Images