Secret Pardons: What If Giuliani Has One? 

It would, of course, break presidential norms for a president to hand out secret pardons. But, no matter what you think of Trump, he surely wasn’t a president who respected the norms. 

(Photo by Drew Angerer/Getty Images)

The Constitution gives the president the power to issue pardons. But the Constitution says nothing about whether those pardons must be made public. It’s entirely possible that President Donald Trump handed out during his last few days in office pardons that have not yet been publicly disclosed.

It would, of course, break presidential norms for a president to hand out secret pardons. But, no matter what you think of Trump, he surely wasn’t a president who respected the norms. What’s one more little breach of precedent?

Suppose that Trump gave Rudy Giuliani a pardon before Trump left office in January. Giuliani now has that pardon in his breast pocket. Giuliani would not yet let anyone know that he possessed the pardon. After all, the pardon protects one only from federal prosecution; it does nothing to stop state prosecutions. The statutes of limitations, however, continue to run on any state crimes that Giuliani may have committed. Giuliani might as well continue to let the statutes run until the last possible minute. If some federal prosecutor ultimately indicts Giuliani, Giuliani could then pull the pardon out of his breast pocket, present it, and block the federal prosecution from proceeding. State prosecutors, who might have been sitting on their thumbs assuming that the federal prosecution would proceed, would then have to hustle to bring charges before any applicable statutes had run.

Thus: If Giuliani is holding a presidential pardon, we logically wouldn’t yet know about it.

This idea, of course, raises other interesting possibilities: Who else might hold secret pardons from Trump?

The Trump children? None have yet been indicted; the smart play would be to keep any pardon secret for the time being.

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Representative Matt Gaetz? He hasn’t yet been indicted; the smart play would be to keep any pardon secret for the time being.

Could Trump have pardoned himself? He could have. And you wouldn’t yet know.

It’s true that the constitutionality of self-pardons is suspect. But it you were a man in his mid-70s, and you knew that you could avoid going to jail for two or three years while the constitutionality of self-pardons was litigated up to the Supreme Court and back, wouldn’t that be pretty darned attractive? After all, you might prevail: A self-pardon might be constitutional. Even if you lost, any prosecution would probably proceed only after the constitutionality of self-pardons had been resolved. By that time, you’d be in your late 70s; the short-term protection that you obtained for two or three years might ultimately be all the protection that you needed for a lifetime.

I understand that all the pundits are pontificating about the crimes for which Giuliani might be indicted. But I still think we should step back a bit: Perhaps Giuliani has already been pardoned for his conduct.

The game is still afoot.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.