How to stop Trump’s secret pardons

Will President Trump give himself, his family and others in his political or social orbit a secret presidential pardon? We believe he will. Rudy Giuliani has read the Constitution. The clause granting presidential clemency power does not require a pardon to be publicly revealed: Article II, Section 2 merely says the president “shall have the power to grant reprieves and pardon offenses against the United States, except in cases of impeachment.” This section contains no other restrictions on presidential pardoning power.

George Washington issued the first presidential pardons on November 2, 1795. They went to two Pennsylvania men who were Whiskey Rebellion firebrands and sentenced to hang for treason. Liquor had grown to be the main cash crop for these farmers, and its taxation eventually led to armed conflict. In his seventh State of the Union address, President Washington wrote that he hoped the pardons would help restore domestic tranquility. 

Since the late 1800s, presidents have “relied on the Department of Justice, and particularly the Office of the Pardon Attorney” in administering the clemency process. But the Constitution imposes no such prerequisite to the issuance of any presidential pardon. Since Washington, it is believed that all such pardons were made public.

There is nothing in Article II, Section II, preventing President Trump from signing a document granting a pardon, and then putting the paper in a safe at any of his golf resorts. He is not even required to notify the recipient. 

That is right, America: Trump can secretly pardon whomever he wants on his last night in office and have those “get out of jail free” cards available if needed. Given the pardon granted Richard Nixon, the scope can be broad. 

The constitutional power addressed federal crimes only: Trump cannot directly protect himself and others from being tried for the same acts as state crimes. There is not yet a definitive Supreme Court case concerning state criminal charges against an alleged perpetrator who has received a full presidential pardon for identical predicate acts. Could a presidential pardon in practical effect hamper such a prosecution?

To House Speaker Pelosi (D-Calif.) and Senate Majority Leader Schumer (D-N.Y.): Impeaching the president a second time may have its merits. But the more practical problem needing immediate attention is President Trump’s remaining power to issue pardons, which undercuts our criminal justice system. 

Why not use the power of the legislative branch to thwart Trump’s last gasp attack on the rule of law? We, therefore, urge Congress to immediately enact a law limiting the power of the president to issue secret pardons. The constitutional legality of any pardon is solely a determination for the judicial branch. Therefore, Congress could pass a law saying that any pardon revealed after a president has left office will be presumed illegal. Shifting the burden of proof in this fashion is consistent with Article II, Section II.

There is a crucial legal difference between the power to issue pardons and the role of the judiciary in determining the legitimacy of the action as a matter of law. The legislative branch, acting in the public interest, has a legitimate interest in ensuring a secret pardon was not issued after a president left office. 

Bottom line: as Donald Rumsfeld famously said, “absence of evidence is not evidence of absence.” 

The same holds for secret presidential pardons. The fact that Trump might say they do not exist should not be taken at face value. 

We believe President Trump intends to leave office armed with secret pardons. Congress needs to stop him. They should do it prior to his leaving office to close a possible constitutional challenge to the restrictive law.

Paul Goldman is the former chairman of the Virginia Democratic Party with a forthcoming book on Virginia politics. Jeff Thomas is the author of “The Virginia Way: Democracy and Power after 2016.”