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In a discussion about the current election and the possibility of an indictment being handed down after a candidate was nominated, the possibility was raised that the President may have already issued a pardon, classified it as secret, and informed the DoJ of the pardon and its classified status. And that may be the reason that the DoJ has not, and will not seek an indictment.

Is there anything that would prevent this sort of political maneuver explicitly? Is there any precedence that would allow/disallow this sort of action?

NOTE: I am not asking if this has happened or for any speculation on what might happen if it were to come out.

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    Can a pardon be issued without a trial taking place? That would seem wide open to abuse.
    – Phil Lello
    Commented Apr 2, 2016 at 20:13
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    @PhilLello Nixon was granted a full pardon for all of his actions by Ford well before any trial could take place.
    – SoylentGray
    Commented Apr 3, 2016 at 6:01
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    If it's not public, how would they have their pardon accepted?
    – user1530
    Commented Jan 25, 2017 at 6:29
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    @blip - I am not sure what you are asking
    – SoylentGray
    Commented Jan 25, 2017 at 15:22
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    The person would be out of jail. It would be public by default.
    – user1530
    Commented Jan 25, 2017 at 19:24

6 Answers 6

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The Department of Justice is an office of the Executive. If the Chief Executive desires that they refrain from prosecuting a case, he may simply issue that order behind closed doors.

There are very few constitutional limits on a presidential pardon, so a secret pardon would not be impossible from a legal perspective, but I suspect that proper pardons are a necessarily public affair. Otherwise, they just don't reflect the full power of public accountability, which comprises a significant component of such reprieves!

For example, if Gerald Ford had issued his pardon of Richard Nixon in secret, what would have prevented Jimmy Carter from conveniently losing the notes on that particular order and letting the DoJ proceed with the case anyway? Nixon would need to publicize his pardon, or at the very least broaden the number of people who were privy to its existence, if he wanted to use it as a defense, and he'd need to do extra work just to prove that the pardon was legitimate in the first place.

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    what would have prevented Jimmy Carter from conveniently losing the notes on that particular order? - The pardon would be secret, but not undocumented. Presumably the recipient would be given a copy of the pardon, and people in the administration would have access to them with the right clearances. Since it is the position that issues the classification(in this case POTUS) Carter could use his authority to declassify it but not undo it.
    – SoylentGray
    Commented Mar 21, 2016 at 15:55
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    Yes, but a prosecutor can make an excellent case that he didn't know about the pardon if it's literally a secret. What I'm saying, here, is that by hiding the existence of your pardon, you create plausible deniability in your own disfavor.
    – Eikre
    Commented Mar 21, 2016 at 16:45
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    I see you edited the question a couple hours ago so you're clearly still dissatisfied. There remains no statute or case-law which prevents the maneuver as you explain it, but it would still be asinine. The sitting president remains in office for three months after the election of his successor. He can prevent indictment well past the point where it would be relevant to the election without using a pardon, and if his chosen successor wasn't elected, it would still be necessary to publicize her pardon for her to claim its protections from the incoming administration.
    – Eikre
    Commented Jul 9, 2016 at 17:15
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    In other words, the legal semantic is possible, but also idiocy; it would be completely congruent with the much simpler alternative of issuing a public pardon on the last week of your term and just stonewalling any prosecution in the meantime. Unless the president gets killed in the meantime it's a senseless distinction, politically speaking, which is presumably the only way that matters on SE.Politics.
    – Eikre
    Commented Jul 9, 2016 at 17:18
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    Look, this is very simple: Before the election, she doesn't need the pardon, because the sitting president can protect her, and after the election, she doesn't need it to be secret. So, the sitting president can just pardon her normally after the election is already over... Just like with every other controversial pardon.
    – Eikre
    Commented Jan 25, 2017 at 20:10
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He could try to do this, but barring exceptional circumstances, the classification wouldn't hold up if the person had to actually use the pardon. And the fact that he tried to conceal the pardon would likely cause an even larger political backlash than if he had just pardoned openly.

The President can classify information. But, although he has some discretion, he cannot just classify anything he wants and expect it to be legally enforceable.

18 USC § 793, which covers disclosing classified information, pretty much requires that information be "respecting the national defense" if you want to prosecute someone for disclosing it. Also, if you start classifying information for no good reason, that goes afoul of the First Amendment freedoms of speech and press. So, how exactly does the secrecy of this pardon positively impact the national defense? The courts may ordinarily give some deference to a President's say-so, but not if it's a clear-cut abuse of the power.

I suppose it's possible that the pardon is related to illegal actions during secret ops that are legitimately defense-related. Revealing the existence of the pardon would then be tantamount to admitting the existence of those secret ops, so the pardon could justifiably be kept secret. But this scenario seems rather unlikely to be applied to a presidential candidate. And if a bunch of prosecutors already know about it and think they can convince a jury beyond a reasonable doubt, it seems likely that the cat is already out of the bag regarding the ops, and there's little justification to continue to keep the pardon secret.

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    AFAIK if you possess classified information as a member of the general public with no clearances and signed nothing to get it, there is no law against publishing it. The law works rather the other way around and prosecutes abuse of access and espionage.
    – Joshua
    Commented Dec 8, 2017 at 2:38
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    @Joshua - In theory this is correct. But look at how the US handled the Snowden, and Manning releases. They very much aggressively pursued treason and espionage cases against anyone who disseminated this information even though the people came by it with out any intent to spy or cause damage to the country before the information was presented to them.
    – SoylentGray
    Commented Feb 12, 2018 at 15:30
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    @Joshua maybe in the US that is technically true? in the UK, such material would be covered by the OSA (Official Secrets Act). You don't need to sign the OSA in order to be covered by it. Signing it before being allowed to handle classified information is purely to drive the fact home that you are covered under it. Said form even states that failure to sign doesn't exempt you as you are already subject to the OSA.
    – Baldrickk
    Commented Feb 28, 2019 at 16:53
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    @Baldrickk: Tom Clancy's "Red October" contains a ridiculous amount of classified material. He was untouchable.
    – Joshua
    Commented Feb 28, 2019 at 17:20
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I think this can be done. The president writes the necessary papers, hands one copy to the person being pardoned, and hands a few more copies to the person's relatives or allies who can keep a secret. The pardon would only become known to the public on attempt to prosecute when the person produces a copy for defense.

This would make a terrible political mess and quite possibly should never be done, but if the signatures are good it would be hard to deny. The people receiving duplicates could testify if need be.

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  • You could even have the arrest warrant quashed by a secret court with the proceedings held under seal.
    – SoylentGray
    Commented Mar 10, 2017 at 18:27
  • @SoylentGray That's extremely doubtful. You'd have to somehow quash the arrest warrant before it was made public (and you can bet there would be a press release about the arrest of an ex-president), there'd be no legitimate reason for a judge to seal the case, and the whole thing would be so outrageous that someone would leak it on general principles.
    – D M
    Commented May 4, 2017 at 6:46
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    @DM - Not really just have it quashed in secret and release that the warrant was vacated but not why.
    – SoylentGray
    Commented May 4, 2017 at 15:26
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The President can issue a pardon whether there has been an indictment or not. In the case of Some CIA and other covert ops and contractors, they won't tread in certain sensitive legal areas where legal views might change without a pardon letter first. Water boarding might be an example of such an op. One administration may view it as legal, the next might try to jail you. So for some things, Presidents of both parties have been issuing them to Intel ops and classifying them so the public doesn't know. It is quite possible that a Secretary of State , or a former CIA head could have them as well, marked classified and tied to a secret op. If so, you could not go after them on anything else even if unrelated to the original justification, and the DOJ and everyone would have to keep their mouths shut.

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  • Please provide sources to support your answer. Also, it's a bit contradictory. You say you could not go after them but how would you know that when you don't know the pardon exists?
    – JJJ ♦
    Commented Mar 26, 2019 at 19:36
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    Presidents of both parties have been issuing them to Intel ops and classifying them so the public doesn't know - This statement could really benefit from a source to back it up.
    – SoylentGray
    Commented Mar 26, 2019 at 19:50
  • Ok, lets just say this is hypothetically possible. Presidential pardons can be issued as blanket immunity. CIA operatives effectively immunized for activity connected to the rendition of Terrorists, covering a period of time. Marked classified because the underlying operation is secret. So - Hillary Clinton as Secretary Of State was likely in the loop on CIA operations under the umbrella of US Embassies. It is possible she has a blanket pardon stamped classified because of a covert op and is therefore untouchable - and no one knows why. Unless a future President declassified her pardon.
    – William
    Commented Mar 27, 2019 at 4:12
  • BTW, when we hear people with top security clearances begging the President to declassify documents - well one does wonder how much to read between the lines...
    – William
    Commented Mar 28, 2019 at 12:19
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It almost certainly wouldn't work as a political move in the long run, because all subsequent Presidents would have full authority to declassify the document(s) if they thought the classification improper.

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And that may be the reason that the DoJ has not, and will not seek an indictment.

You can only pardon someone of his/her conviction. To the extent that there is no conviction, you cannot prospectively pardon that person.

There is no get-out-of-jail card, so to speak.

The Trump administration's stand on a potential Hillary prosecution is not yet written. Sessions was widely quoted for saying that "this country doesn't punish its political enemies," but not many people knew the very next sentence he said:

but this country ensures that no one is above the law.

I don't think prosecuting Hillary is a wise choice - as it is likely to tear the country apart. However, upholding the law is important and having a neutral person assessing the evidence and sharing it with the public before moving forward would be a good thing for democracy.

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    "you can only pardon someone of his/her conviction" That is incorrect, see Gerald Ford pardoning Nixon.
    – IllusiveBrian
    Commented Jan 22, 2017 at 17:01
  • that's one of the reasons that the nixon pardon was highly controversial. unfortunately, the word "crime" was not defined in the constitution. some elect to interpret it as the act of committing a crime, and others the conviction (on the notion that everyone is assumed innocent until proven guilty). if there is a future case like the nixon pardon, it wouldn't surprise me we will see litigation of it.
    – dannyf
    Commented Jan 22, 2017 at 17:08
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    Ford/Nixon isn't the only pardon like that. Pretty much every blanket pardon has pardoned some people prior to prosecution. For example, the Andrew Johnson Civil War pardons or the George Washington Whiskey Rebellion pardons. Note that the Whiskey Rebellion pardons were the first pardons ever issued.
    – Brythan
    Commented Jan 22, 2017 at 20:02

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