Dresser Drawer Pardons

Abstract

Can a President issue a pardon without telling anyone that she has issued it? Yes, the President can grant a valid pardon without telling anyone but the recipient of her grace that she has done so. While a defendant must plead a pardon for a court to take notice of it and quash an indictment, the document may lay buried in a sock drawer in case it is ever needed without losing any of its force or effect. Lawyers working in real property will sense that cached pardons savor of an obscure but nonetheless viable estate planning device: the “dresser-drawer deed.” Despite the advent of modern recording statutes, deeds of real estate are valid upon receipt and do not need to be recorded or otherwise publicized to be effective. My arguments for the validity of secret pardons will focus on Supreme Court precedents, especially United States v. Wilson, in which Justice Marshall expressly compares a pardon to other private acts, including donative transfers. This analogy and the Supreme Court opinions endorsing it will be the driving wheel of my reasoning. By and large, I will not argue that it is desirable for the President to be able to write a “sugar bowl,” “back pocket” pardon, though I will point out that secrecy and discretions are handy tools of statecraft. I mention this in light of the fact that some of the framers clearly plumped for the pardon power as a Presidential tool of peacemaking in service of the national interest, not to make a freestanding policy argument for secret pardons. As far as I know, a power to grant secret pardons could be on balance nothing but a fountain of mischief.