united-states criminal-law constitutional-law us-constitution pardon
Can a pardon be issued clandestinely?
<p>Say there exists some individual who is in danger of prosecution for federal crimes, though it's not yet certain what the exact charges will be, nor even whether the indictment will be made at all.  An outgoing president wants to ensure this individual remains protected, even after he leaves office, and so considers issuing a blanket pardon to this individual for any and all crimes they may have committed (similar to how Ford pardoned Nixon). However, the president knows that such a move would be wildly unpopular and so wants to mitigate the risk of tarnishing his own reputation and legacy.</p>
<p>In such a scenario, could the president issue a pardon in the presence of witnesses who agree to hold it confidential, and then not publish it?  Copies of the pardon would be given to the individual in question, and maybe also to the soon-to-be-ex-president and the witnesses.  The individual does not disclose the pardon unless and until they are actually charged with or indicted for a crime, thus sparing the president any embarrassment in the event that the charge or indictment never happens.  The authenticity of the pardon can be confirmed, if necessary, by checking with the ex-president and/or the witnesses.</p>
<p>Is there any law which prevents this scenario from playing out?  If so, would it invalidate the pardon itself, or would it just constitute a separate crime for those party to its clandestine issuance?</p>

<p>As a practical matter, a pardon needs to be disclosed to be effective. Authenticating a pardon would be much more difficult if it was was not disclosed, making it much harder to utilize.</p>
<p>No U.S. law prevents a pardon that is issued from being a public record subject to disclosure, e.g., via the Freedom of Information Act, so there is a compulsory process by which one can force the disclosure of pardons. There are also laws which require that records be kept of all Presidential activity, including pardons. There are also laws requiring that statistical information about pardons be disclosed by the bureaucrats in charge of handling pardon requests.</p>
<p>This said, publication before it is disclosed to be effective is not legally required for a pardon. So, as a practical matter, the disclosure of a pardon could be delayed significantly.</p>

<p>This has come up in congress. At least once a law to make it clear that pardons can't be secret was <a href="https://krishnamoorthi.house.gov/media/press-releases/congressman-raja-krishnamoorthi-introduce-presidential-pardon-transparency-act" rel="nofollow noreferrer">proposed</a> -</p>
<blockquote>
<p>“There is currently no requirement that the President disclose
pardons, even as he has reportedly weighed using them to sabotage
Special Counsel Mueller’s investigation,” Rep. Krishnamoorthi, who was
first elected in November, said in a statement. “The President has the
power to pardon but the American people have the right to know how and
when he has. The Presidential Pardon Transparency Act will establish
this principle in law.”</p>
</blockquote>
