Why a Pardon Would Not Help President Trump If He Discloses Classified Information

November 13, 2020

By Sara Kropf

The Washington Post recently published an interesting article evaluating the risk that President Trump might reveal classified information after he leaves office. The article highlights the amount of amount of classified information revealed to presidents, particularly during their daily security briefings.

All presidents exit the office with valuable national secrets in their heads, including the procedures for launching nuclear weapons, intelligence-gathering capabilities — including assets deep inside foreign governments — and the development of new and advanced weapon systems.

All of this information must not be disclosed, since it is classified information. The President, however, has the apparent ability to unilaterally de-classify information under a 1988 Supreme Court case, Department of Navy v. Egan. (This led to controversy during the current administration.)

Once a President leaves office, however, that power to declassify information—and then disclose it—disappears. Although every President has thus far strictly protected classified information, the Washington Post article quotes some in the intelligence community about their worry that President Trump could pose a security risk once he leaves office.

I’m not going to opine on whether President Trump would reveal classified information. But this article raises the interesting legal question of whether the pardon power could protect him.

Criminal Prosecution for Releasing Classified Information

If President Trump reveals classified information after he leaves office, he could be subject to prosecution under certain federal laws.

Here are a few of the law preventing disclosure of classified information:

First is 18 U.S.C § 798. It prohibits the knowing and willful communication of specified classified information to “an unauthorized person” or publication/use of classified information “in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States.” It allows for up to 10 years in prison.

Second is 18 U.S.C. § 793. It prohibits anyone from transmitting or communicating documents “relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” The statute provides for a punishment up to 10 years in prison.

Third is 18 U.S.C. § 794. This statute provides for a sentence of death if someone transmits information to a foreign government “with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation.” This is the statute to which the notorious spy Robert Hanssen pleaded guilty.

Note that all of them have an intent requirement. Accidental or negligent disclosure is not technically a crime. I say “technically,” because DOJ has shown little patience in these cases to find that a disclosure was not intentional. Given the level of training one receives to handle classified information, it’s a challenge to defend someone accused of disclosing it–they certainly were trained on the rules.

Can’t President Trump Just Pardon Himself for Any Future Violation?

To be clear, even the people quoted in the Washington Post article don’t think that President Trump would disclose classified information to hurt the United States. They seem to fear that he would do so to further his personal or financial interests, or as part of a pattern of “braggadocio.”

Let’s say President Trump is worried that he might disclose something accidentally or that he’ll be targeted for prosecution as political payback. Can he pardon himself now for any future violation?

The answer is no.

Article II, Section 2, of the Constitution provides that the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”

This is one of the broadest grants of authority to the executive, but there are two key limitations to consider.

First, it is not entirely clear that a President can pardon himself. In 1974 (post-Watergate), the Department of Justice issued a three-page memorandum opining that Article II, Section 2 does not permit a self-pardon. Without much analysis, it concludes that

Under the fundamental rule that no one may be a judge in his own case, it would seem that the question [of whether a self-pardon is permissible] should be answered in the negative.

However, the 1974 memo also points out that the President could avoid this problem by simply stepping aside and allowing the Vice President to become President under the Twenty-Fifth Amendment. The (new) President could then pardon the (old) President. As the memo explains:

A different approach to the pardoning problem could be taken under Section 3 of the Twenty-Fifth Amendment. If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office.

Let’s assume that President Trump pardons himself or employs the Twenty-Fifth Amendment to permit Vice President Pence to pardon him.

This leads to the second, more intractable, problem: A pardon can only work retrospectively and not prospectively. In other words, even a presidential pardon does not immunize someone from prosecution for future crimes.

In Ex Parte Garland, 71 U.S. 333 (1866), the Supreme Court announced that the power to pardon “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” The language “after its commission” appears to mean that a President may only pardon crimes that have already been committed.

President Gerald Ford granted President Nixon “a full, free, and absolute pardon . . .for all offenses against the United States which he . . . has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”

This limitation makes sense. To permit a pardon for future crimes would permit a President to give anyone he wanted complete immunity from federal prosecution–forever and for any violation. That could lead to very dangerous consequences.

(Remember that pardons apply only to prosecutions of violations of federal law and not to state ones. The laws prohibiting disclosure of classified information are federal statutes.)

We don’t know yet whether President Trump will (1) do nothing; (2) try to pardon himself, or (3) have Vice President Pence step in to pardon him after invoking the Twenty Fifth Amendment; or whether (4) President-Elect Biden will pardon him for anything during his term of office. There are a lot of options here.

But, even if a pardon happens in one way or another, that pardon will not protect President Trump if he discloses classified information in the future.

Let’s hope this legal analysis stays purely hypothetical. No matter where you fall on the political spectrum, it would really be for the best if the Supreme Court does not have to develop fulsome precedent on these issues.  It’s far preferable for everyone to keep their mouths shut.

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