About those "secret pardons"

[StarfishSaver]

The fact that a pardon is secret doesn't mean that no one knows about it or it's not documented.

No court is going to accept a pardon issued by a now former president that is not documented and proven to have been issued prior to the end of that president's term.

Most likely a "secret" pardon would be submitted to the Justice Department like all other pardons, but would not be included in the list of pardons released to the public. Such a pardon would be just as valid as any other, it just would not be publicly known.

So, there's no need to worry that in six months, Trump can scrawl "I hereby secretly pardon my son Daunald, Junyir" on the back of a napkin and prosecutors will say, "Oh. Never mind."

[Mike 03]

1. K+R

[JI7]

2. So the Justice Department will have the info and can confirm if the person decides

to use it to prevent being charged with a crime ?

[dem4decades]

3. Arrest them all tomorrow and then we'll know.

[SheltieLover]

5. Great 8dea!

[revmclaren]

4. Could Biden use an executive order to make all of

tRumps secret pardens public?

Then everyone would know in advance what was coming.

[onenote]

9. I don't even think it would take an executive order.

To the extent the pardons are classified, Biden has the power to declassify them and make them public.

[exboyfil]

11. Probably prefer that to come from the DoJ

Biden would make it look too political. I think there is ample justification to make all pardons public.

You do wonder if there are some Saudi royal family pardons sitting in a vault someplace at the DoJ.

[apnu]

6. What insane idiot is floating this idea?

Wait don't tell me, some Trump ass kisser I bet.

[StarfishSaver]

16. Actually, some folks on DU are concerned this will happen

[Cuthbert Allgood]

23. Lawrence O'Donnell said it was possible last night.

[SheltieLover]

7. Ty, Starfish!

[exboyfil]

8. Can't the DoJ issue a list of all pardons that have been logged

It seems that in the interest of Justice this should be known. Otherwise you have a bunch of US Attorneys essentially spinning their wheels. There is no upside for a current administration to keep these secret.

At the end of the day it will be up to the Supreme Court to decide what is a legitimate pardon assuming controversial ones get to that point.

[StarfishSaver]

18. They would know.

The minute a US Attorney's office identified a target it intended to investigate, their higher ups would know about it and they'd be told to back off because of the pardon.

The public knowing something isn't the same as the relevant people in DOJ knowing it. Information doesn't need to be released to the general public in order for US attorneys and DOJ to act on it.

[exboyfil]

19. A pardon doesn't preclude an investigation

It just frames it in a different light and approach. Perjury will still be on the table for example, and obstruction in an attempt to cover up that a crime did occur for the sake of reputation or to avoid civil lawsuits and government penalties. State prosecutors also should know of the existence of a pardon.

[StarfishSaver]

21. True.

But fairly early in the process, DOJ is required to determine if someone is being targeted for prosecution and so notify them. If in the course of an investigation, DOJ begins to believe that a person may be a prosecution target, and that person has received a pardon, the US attorney would be advised of that fact so they could act accordingly.

[onenote]

10. I've been saying this repeatedly

but some DUers are convinced that secret pardons that are hidden even from the DOJ are a real thing. They're not.

[Wednesdays]

35. True, that.

[greenjar_01]

12. quote and quote

Love that. You make it sound like an actor closing a scene.

[StarfishSaver]

17. Lol - That was a mistake!

I dictated the OP And the voice recognition didn't recognize my quotes... fixed it, But obviously not quick enough for some eagle eyes not to catch it

[kentuck]

13. Also, if anyone with a pardon is subpoenaed, don't they have to notify the court of their pardon?

Seems I read that somewhere?

[StarfishSaver]

22. I'm not aware of that requirement, but it makes sense

[jcgoldie]

14. Oh yeah well...

“When somebody is the president of the United States, the authority is total. And that's the way it's got to be. It's total.”

And and that included stuff he writes on cocktail napkins since meanies in big tech wont let him tweet ... and he’s still really president anyway since he won by a lot like a landslide and they stole it... and and...

[asiliveandbreathe]

15. An interesting story where the Reagan Admin initiated a pardon for

2 FBI agents, during the 70s -

Mr. Felt and Mr. Miller had not formally applied for pardons. Justice Department and White House officials said that the pardons had been initiated by the White House. The normal procedure is for a defendant to apply for such clemency. Justice Department rules stipulate that before requesting a pardon a person should wait three to five years from the date of conviction..

https://www.nytimes.com/1981/04/16/us/president-reagan-pardons-2-ex-fbi-officials-in-1970-s-break-ins.html

justice dept. rules almost sound foreign..Reagan signed the pardons March 26th, 1981..picked up by news April 16, 1981..

Mr. Reagan signed the ''full and unconditional'' pardons on March 26, four days before he was shot in the chest by a gunman. But Mr. Felt, Mr. Miller and their attorneys said that they had learned only today of the President's action. White House lawyers said there was no particular reason for not having announced the pardons before the shooting.

[hlthe2b]

20. We don't know that. I believe the courts would reject, but as Chuck Rosenberg commented

last night on Lawrence O'Donnell, there are no specific requirements in format (written or spoken, even) nor a requirement that the recipient even KNOW they were pardoned, nor that anyone, including DOJ be informed. Your saying otherwise does NOT make it so.

Would the courts likely frown on a haphazard approach to pardons--I should think so, but the truth is that the absence of any statutory requirements around pardons means the default is absolutely no restrictions whatsoever--as per the constitution.

I DO appreciate your desire to calm the waters, but as Rosenberg pointed out, we simply don't know and I believe in conveying the uncertainty, rather than assuming this not to be an issue. It IS.

I'm hopeful that some of the leading constitutional scholars, including Laurence Tribe, will weigh in, but I suspect Rosenberg is right.

[StarfishSaver]

26. I heard with Rosenberg said and he's correct - and so am I

He said there are no requirements that a pardon be in writing or witnessed. That's true. If Trump were to call Ivanka this morning and say "I hereby pardon you for any crime you committed in the last 4 years," that's probably a valid pardon.

But that's not the issue. The question is how would she PROVE the pardon was valid. Unless she can prove it, it doesn't matter how valid the pardon is. And no matter how valid the pardon was, Ivanka's and her Daddy's word that it happened isn't going to be good enough. There will need to be some solid proof of it or it won't be accepted.

Like trees falling in empty forests, pardons are only effective if it can be proven they were given.

[hlthe2b]

28. You didn't read what I said, apparently. That is unfortunate as it displaces any real discourse.

You can say "you were right" all day. The truth is "facts not in evidence." i.e., we don't know.

[StarfishSaver]

30. I read what you wrote. But it sounds like you didn't read what I wrote.

Whatever.

[hlthe2b]

31. The irony is we have areas of agreement that you seem unwilling to read and acknowledge

That makes it impossible to discuss.

[Happy Hoosier]

24. Biden will know tomorrow

And he will release the list.

And his DOJ must be willing to challenge improper pardons.

[Yeehah]

25. I'm curious what would be the basis in law to not disclose these pardons

A pardon doesn't seem to fit any of the exemptions to open records laws I'm aware of, but I haven't really researched it or anything. If somebody filed a federal FOIA request, what would be the reason to not disclose?

[StarfishSaver]

27. Interesting question.

I don't know the answer.

Perhaps some pardons could be classified as national security matters? But other than that, I don't know.

[duforsure]

29. But trump isn't required to submit any pardon for review or anything to the DOJ,

Unless you know of a law that requires that, and I don't know of one that does.if he wanted to claim he gave one , after getting paid for one illegally, after he leaves he might exploit that issue,then write a name down , and say jr was his witness, claiming it before he left. Trump's a criminal.

[StarfishSaver]

33. I didn't say he's required by law to submit anything for review

But at some point the Justice Department is going to need to know about the pardons so that it can refrain from prosecuting anyone he pardoned.

The way that's normally done is to give them a list of the people that he's pardoned. And if he wants to issue a secret pardon, it's still makes sense for him to tell the Justice Department whom he pardoned - both so that they are unnoticed not to go after the person and so that he has documented in real time the fact that the person was pardoned while he was president.

Trump is stupid. But he is not so stupid to believe that any court will allow anyone to avoid prosecution on the ground that they are claiming, after the fact, that Trump issued them a "secret" pardon that no one can prove was issued when he had the power of the pardon.

[BGBD]

32. I stayed out of those threads yesterday

but my first thought was this....and that there's no way these blabbermouths could ever keep it secret. They are leakier than an old roof and if the "Secret" pardon were really bad we'd find out about it fro.m the next administration

[Wednesdays]

34. K&R. nt