Congratulations, we have made it to the last third of 2020. Now that we are…
Pop question of the day: “Could President Donald J. Trump have issued a secret pardon, to say, his adult children? If so, how would it work and would it be constitutional?” At Research & Innovation, our clients call upon us to contextualize complex challenges and the risks/opportunities which they are faced with whether it be through providing due diligence, protecting against cybersecurity threats, consulting on strategic transactions, dispute advisory, or generally providing solutions architecture.
But because this “pop question” represents perhaps the most interesting trial strategy issue posed lately, we are compelled to indulge in a wild conspiracy theory and consider how it could be done. Our indulgence comes not because we think it happened; but because we find ourselves having to ask whether it could have happened without anyone noticing. This article sets forth our firm’s perspective on how we would have approached the issuance and adjudication of a secret pardon if in a position to do so.
The Power of Pardon
There is no reason to rehash the reasons why President Donald J. Trump may be interested in securing a pardon for himself, his family, and his associates closest to him. It should simply suffice to say that this is an issue which certainly occupied many at the White House in the sunset days of the Trump Administration. As the hours passed and the Nation held its breath to see if the President would pardon himself or his confidants (as well as others such as Tiger King, Joe Exotic, of Netflix fame), the question arose as to whether we would even find out by the end of his term or whether it was possible that he could have issued the pardons secretively. When the term ended, and no pardons were made public, the intensity of the speculation regarding the existence of a fabled secret pardon increased.
Whether the President has the inherent authority to pardon himself is beyond the scope of this article.
We are inclined to believe that a President could not pardon himself and likely cannot pardon anyone for crimes in which he is a co-conspirator. This prohibition on self-pardons comes from our understanding of the constitutional intent that a pardon provides the Executive Branch with the ability to review the sentencing of the judiciary and offer a means of clemency (for the penitent) who were harshly judged rather than a waiver of prosecution as a means of executive privilege. Our review is limited to the question of how to construct and defend a pardon which is issued by the President secretively.
Professor Lawrence Tribe & Secret Pardons
Let’s turn to the venerable Harvard Law legal scholar, Laurence Tribe, who recently weighed in on the issues of the Trump pardons via an Op-Ed in The Financial Times on the issue. He has also provided commentary on the nature of secret pardons and their validity. Professor Tribe’s comments on the matter are well-reasoned theoretically, and the issues raised by him regarding the viability of a secret pardon form the basis for our inquiry as to whether we could come up with an effective strategy for a viable secret pardon.
“I certainly can’t say that they are clearly impermissible, but I can say that I think that there is at least a Constitutional cloud over them,” said Tribe regarding the concept of a secret pardon. While leaving the door conceptually open, Tribe expressed several hurdles that would have to be overcome to render the secret pardons viable.
“There would be no way to prove it was issued on a certain date in an official capacity,” Tribe said. “If invoked at the time an indictment or prosecution is brought, that would open the possibility for a Constitutional test of whether secret pardons are permitted.”
“They were supposed to be accompanied with either a confession of guilt or that they implied that the person who accepts the pardon is willing to publicly admit guilt,” Tribe said. “And the fact that there’s no indication in the discussion of the Constitution when the pardon power, which is already pretty sweeping and subject to abuse, could be hidden behind a veil of secrecy, I would argue that it’s validity is up in the air.”
How Research + Innovation Would Approach A Secret Pardon
Notwithstanding the obvious issues regarding why one might prefer to not be in the position of needing a secret pardon strategy, an optimal strategy would be one that continues to provide a lack of disclosure of the pardon for as long as possible while also bolstering the chances of having it hold up as a shield against a forthcoming criminal action.
A primary issue in establishing the validity of the secret pardon is the ability to prove that the pardon was issued during the presidency. Given the stakes that would surround the providence of the document and the ancillary bias that comes with a secret pardon, we believe simply relying on the provisions of Fed. R. Civ. P. 902 as a means of establishing Evidence that is Self-Authenticating represents too much uncertainty for our strategy. We anticipate a challenge to the use of these rules on the basis that the documents were not inherently public as the signer intentionally withheld them from the public. This exposure risks the entire pardon and is therefore not a viable strategy.
The other option for self-authenticating evidence can be found in Fed. R. Civ. P. 902(8) as it relates to documents that are accompanied by a certificate or acknowledgement by a notary public or other similarly authorized officer. While in concept this might seem like a tempting strategy for President Trump, we feel an affidavit is unlikely to persuade a court that the document was unquestionably executed during the presidency. Instead, we required an attestation that exists beyond reproach and is completely absent of bias in the eyes of the court: the timestamp of a court filing itself.
In our strategy, prior to the expiration of the Trump administration, we would have filed a declaratory judgment action in federal court. There, outside counsel would have asserted in a verified complaint that the President had issued the plaintiff(s) a pardon and offered the judiciable controversy to the court as to the a means of determining the enforceability of the pardon as a bar to any future actions or the plaintiff’s compliance with further investigations. The best defense is a good offense: a declaratory judgment would have allowed the President to test his safety net, while preserving optionality for appeal, all before having to contend with the substance of the matters with which he and others would be charged. By filing first we also retain the opportunity to frame the issues in the most favorable context.
The timestamp from the clerk of court of a federal court and the chain of custody of the filed documents being continuously retained by the court itself would serve to definitively establish that the pardon indeed was issued during the Trump presidency, despite the public being unaware of it.
To avoid public scrutiny and maintain the element of secrecy, we would file the case under seal. Courts value public access, and the balancing test undertaken by a judge would be to weigh the presumption of public access versus the specific harm to the plaintiff(s).
An interesting reference point for sealing versus unsealing comes from the aptly named case [Under Seal] v. [Under Seal] in which the Southern District of New York lays out the issues related to maintaining the seal of an action filed under seal. While that action was the unsealing of a copyright infringement in which the Plaintiff sealed the action “out of an abundance of caution” to not violate the confidentiality provision of a written agreement, the court does go to lengths to distinguish when a seal is proper, which is informative here.
State Secrets Privilege
Turning back to our pop question, President Trump likely has little interest in any particularity the crimes with which he could be potentially charged. Unfortunately, this creates an inherent tension with the idea of clemency and is a major obstacle for the pardon. While it is conceivable that the secret pardon contains a laundry list of every act for which any of the parties might be found criminally liable, the better strategy appears to be one with a means to sidestep the issue of specificity entirely.
The “state secrets privilege” is a privilege that can be asserted by the government when it believes the release of details may harm national security. For purposes of the declaratory judgment, which is a civil action, Trump could rely upon the state-secrets privilege whereas in a criminal matter it would be the Classified Information Procedures Act. The invocation of the state-secret privilege would allow Trump to simply say something to the effect of, “As President of the United States, I hereby pardon the following people for things that I have invoked a privilege not to disclose in the interest of national security.”
It would be a Quixotic exercise for any prosecutor to try to argue that any act conducted in relation to the presidency was not an issue of national security within Trump’s purview. The court could require that Trump and his group provide them with an in camera examination of the evidence that the information sought might endanger national security, historically this has been rarely acted upon and instead the court accepts the government’s assertion as being the arbiter of what they are willing to disclose.
Additionally, President George W. Bush signed Executive Order 13233 extending the state secrets privilege to former Presidents, their representatives, or representatives designed by their family. This means that even if there is a lingering question regarding the nature of the invocation of the state-secrets privilege in the declaratory judgment action, Trump might get a second bite at the apple to re-assert the privilege as a former President. Moreover, if the proceedings were not working out favorably, the President might take a different approach and try to defy state secrets privilege as a former President.
To the extent that prior administrations have used the state-secrets privilege as a shield against inquiry into their potentially extra-legal actions related to issues such as torture and domestic espionage, there is considerable precedent for this invocation by Trump in the context of a secret pardon.
John Yoo, Professor of Constitutional Law at U.C. Berkeley and former author of numerous legal opinions regarding the use of executive power while serving in the Office of Legal Counsel of the Department of Justice, has set forth a theory that suggests that the President of the United States cannot be held bound by any law by virtue of his executive prerogative to control the entirety of the executive branch and therefore all law enforcement serves at the pleasure of the President thus nullifying any authority to prosecute.
By extension, as raised by author and former constitutional lawyer Glenn Greenwald, the only means of checking the President’s power is impeachment. Whether a secret pardon exists, in any action to hold Trump or his associates culpable for any act, one should expect to see a resurrection of this argument.
Beyond the fun of idle speculation, the value of considering the viability of a secret pardon is that it allows us a vivid context by which to examine the intersection of the executive branch and the judicial branch and consider whether we think the balance of power matches our contemporary expectations of the roles each play in government.
This report is a summary of certain developments that may be of interest to clients and prospective clients of Research & Innovation Co. This report is for general information purposes only, is not a complete summary of the matters referred to, and Research & Innovation does not undertake to keep the recipients of this report advised of future developments or changes in any of the matters discussed in the report.
 This view is also supported by the 1974 Memorandum Opinion prepared by Mary C. Lawton, then acting Assistant Attorney General, which reasons that one fundamentally cannot be the judge in one’s own case.
 Professor Tribe tweeted the following on January 24, 2021: “I started fearing Trump would issue such secret “pocket pardons” well before Jan 20, but I didn’t say so publicly, not wanting to give him any ideas. That said, I think such pardons would be legally vulnerable if and when invoked to resist prosecution.”
 273 F. Supp. 3d 460 (S.D.N.Y. 2017).
 The state secret privilege was first recognized by the US Supreme Court in U.S. v. Reynolds, 345 US 1 (1953).