Fact Check: Can President Trump Issue Secret Pardons?

In his final full day in office, President Donald Trump is expected to issue a myriad of presidential pardons. Last week, CNN initially reported that Trump planned to pardon close to 100 people before leaving office.

Trump already has issued pardons for his former aides, including former adviser Roger Stone, former campaign manager Paul Manafort and former National Security Adviser Michael Flynn.

Some have speculated that Trump will attempt to issue a self-pardon or secret pardons for his family and other aides.

According to CNN, Trump's advisers encouraged him to forgo a self-pardon because it "would appear he was guilty." Other close advisers urged him not to grant clemency to anyone involved in the insurrection at the Capitol on January 6, "despite Trump's initial stance that those involved had done nothing wrong."

Don’t trust the list.

Trump doesn’t have to reveal the names of anyone he pardons.

Trump can issue SECRET PARDONS.

Trump can pardon himself & his family and keep that secret until they are charged with federal crimes.

— Lawrence O'Donnell (@Lawrence) January 19, 2021

The Claim

There has been plenty of speculation about whether Trump can issue a self-pardon, but what about secret pardons?

According to MSNBC's Lawrence O'Donnell, Trump does not have to reveal the names of the people he pardons. "Trump can pardon himself & his family and keep that secret until they are charged with federal crimes."

In a recent episode of his show, The Last Word with Lawrence O'Donnell, O'Donnell continued that Trump might keep a self-pardon or pardons for his family and close friends a secret.

"We should not trust the Trump pardon list when it is publicly revealed," O'Donnell said. He continued, saying that there is "no reason to believe" Trump will "make every pardon he grants in the final hours of his presidency public."

The Facts

The power of pardon is laid out in the first clause of Article II Section 2 of the Constitution. It states that "The President shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

The mention is brief, but there are some restrictions. Pardons do not erase convictions, but they erase the penalties of convictions. They do not always have to follow convictions and can be issued before or during a criminal prosecution. The president may only give pardons for federal crimes, not state crime and not civil actions. Pardons also cannot be given for impeachment cases in Congress, meaning the person being impeached cannot be pardoned for the reason for which they were impeached.

While pardons have always been a part of the president's powers, Trump's final days have brought up unprecedented fears of self-pardons and secret pardons.

While the Constitution does not explicitly mention a president pardoning himself or herself, many consider self-pardons to not be permitted because they go against the original intentions of the framers. Before President Richard Nixon's resignation in 1974, the Justice Department Office of Legal Counsel issued a statement against the use of self-pardons.

"Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself," Acting Assistant Attorney General Mary C. Lawton said.

In addition, the Constitution's pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. There is no precedent for a sovereign self-pardoning.

In a similar way, the issue of secret pardons is debated among experts.

On an earlier episode of The Last Word, O'Donnell asked former U.S. pardon attorney Margaret Colgate Love if a presidential pardon could be issued in secret.

"We have never had secret pardons and the whole idea of a pardon is that it is a public document," Love said. She mentioned that President Regan issued two pardons after the assassination attempt on his life that did not become public until two weeks later.

Love added that the requirements for pardons are loose and that Trump could verbally grant a pardon, but he would have to have witnesses present in order to prove the pardon was given.

However, others believe that pardons were meant to be publicly issued and would not hold up as valid if challenged in a court of law.

"I certainly can't say that they are clearly impermissible, but I can say that I think that there is at least a Constitutional cloud over them," Harvard Law Professor Laurence Tribe said.

For one thing, they would be difficult to authenticate.

"There would be no way to prove it was issued on a certain date in an official capacity," Tribe said. "If invoked at the time an indictment or prosecution is brought, that would open the possibility for a Constitutional test of whether secret pardons are permitted."

Additionally, Tribe said the nature and purpose of pardons implies a public acknowledgment of wrongdoing and forgiveness.

"They were supposed to be accompanied with either a confession of guilt or that they implied that the person who accepts the pardon is willing to publicly admit guilt," Tribe said. "And the fact that there's no indication in the discussion of the Constitution when the pardon power, which is already pretty sweeping and subject to abuse, could be hidden behind a veil of secrecy, I would argue that it's validity is up in the air."

Tribe said that Trump may want to issue a secret self-pardon to get "all the benefits [of a pardon] without the burdens."

"If the self-pardon is hidden from view, then its existence couldn't be an incentive for a U.S. attorney to investigate and prosecute him for his role in the insurrection of January 6 or in any of a number of other things," Tribe said.

Past presidents have issued more pardons than Trump, but Tribe said Trump has used them in such a way that seems corrupt and extends his authority in a way that betrays the original purpose to "temper justice with mercy."

"He's created a market in pardons. He's used pardons to basically reward people who violate people's civil rights, like the pardoned Joe Arpaio," Tribe said. "Many presidents have occasionally issued pardons for selfish reasons, but in Trump's case, it's almost always for selfish reasons. And that's led people to wonder about the scope of the pardon power."

In an op-ed in The Financial Times, Tribe warns that Trump's use of pardons to protect himself could actually have adverse consequences.

"If Mr Trump abuses pardons to shield himself and key allies from justice, that could be charged as criminal obstruction of justice, an abuse of the constitutional power of clemency to accomplish an illegal end," Tribe said.

"In a poetic turn of justice, such obstructive pardons would make prosecuting a president who granted them easier. If Messrs Manafort and Stone and former national security adviser Michael Flynn were called to testify against Mr Trump, their pardons would make it much harder for them to invoke their constitutional rights to remain silent to avoid self-incrimination."

“Trump was warned the pardons he once hoped to bestow upon his family and even himself would place him in a legally perilous position, convey the appearance of guilt and potentially make him more vulnerable to reprisals.” https://t.co/0LRwdSdjzG

— Jake Tapper (@jaketapper) January 19, 2021

The looming threat of conviction in the Senate following Trump's second impeachment likely influenced how Trump plans to administer his final pardons.

"I suppose the prospect of the overhanging second impeachment and the fact he might in fact get disqualified from ever serving again, presumably serves as some kind of inhibition against what would otherwise be even more grotesque abuses of the pardon power," Tribe said.

Tribe believes that if Trump was to issue a public self-pardon, the Senate would likely convict him. Therefore, without the second impeachment trial, Trump might have been more tempted to grant pardons in secret.

"If the second impeachment were not awaiting him, he might well be completely uninhibited to pardon all his family and friends and themselves in a final pardon orgy, but I think the odds of that are reduced by the dependency of the second impeachment," Tribe said.

The Ruling

Mostly true.

The Constitution makes no explicit mention of secret pardons. While they are rare, they are not expressly prohibited. Therefore, there is nothing stopping a president from not making pardons public.

However, if Trump were to issue such a pardon, it might be challenged in court and found to be invalid. Additionally, Tribe believes that any self-pardon issued in secret possibly would be treated as invalid in court if Trump pardoned himself before he was indicted for a federal crime.

donald trump waves from Air Force One
President Donald Trump boards Air Force One before departing Harlingen, Texas, on January 12, 2021. Trump delivered a farewell address on Tuesday, his final full day as president. Mandel Ngan/AFP/Getty Images