Could President Trump Pardon Someone in Secret?

A Democratic congressman has introduced a bill that would force the White House to announce any presidential pardons publicly within three days of being granted. But could President Trump really pardon someone in secret?

The short answer: In theory, yes.

Presidents have broad authority to issue pardons, as determined by the Constitution. Article II, Section 2 of the Constitution says presidents “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

The President doesn’t need approval from anyone else in the government to issue a pardon, and can even pardon someone before they’ve been formally charged with a crime, which is the key to answering this question.

In general, pardons are vetted by the Office of the Pardon Attorney in the Justice Department. But the regulations governing that process don’t interfere with or supersede the president’s constitutional authority on this issue, which mentions nothing about needing to notify the public of a pardon.

Trump has already demonstrated that he’s interested in the limits of his pardon power. He pardoned controversial former Arizona sheriff Joe Arpaio without going through the typical lengthy pardon vetting process in the Department of Justice. And the Washington Post reported in July that Trump was asking around about his power to potentially pardon family members, aides or even himself in connection to special counsel Robert Mueller’s investigation. (On that last point: no, he probably could not pardon himself.)

Trump even tweeted on July 22 to note that “the U. S. President has the complete power to pardon,” showing that the issue has been on his mind.

There’s a real historical example of a secret pardon scandal on the state level. In 2003, it came to light that South Dakota governors had granted numerous pardons over decades, the names and records of which had been kept hidden under a 1983 law. It created an uproar in the state, the New York Times reports, and brought attention to the law, which said every document from arrest to conviction could be sealed after a pardon was granted.

But that’s a state law, so it wouldn’t work the exact same way in the White House. If a recipient of a presidential pardon were indicted, the pardon…

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