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Can the President Pardon Himself?

Tenth Amendment Center: Can the President Pardon Himself?

Eric Muller (North Carolina) at The Faculty Lounge: Can Donald Trump “Grant” Himself a Pardon? I Doubt It.  A nice argument (complete with graphs) that to “grant” is something you do to someone else, not to yourself.   From the introduction:

The question on everyone’s lips is always some version of “can Donald Trump pardon himself?”

But that’s not quite the right phrasing. The right phrasing, per Article II, Section 2, is: “can Donald Trump grant a pardon to himself?”

There’s a difference, in the form of the verb “to grant.”

Might it be an important difference?

A person can certainly give himself something. I, for example, give myself grief on a regular basis about all manner of things. This is true about the verb “give” today, and it was true centuries ago. (“What the devil should move me to undertake the recovery of this drum, being not ignorant of the impossibility, and knowing I had no such purpose? I must give myself some hurts, and say I got them in exploit.” William Shakespeare, All’s Well That Ends Well, Act IV, Scene 1.)

But can a person grant himself something, in particular a legally operative thing like a pardon? To put the question in terms an originalist would prefer, did the ordinary meaning of the verb “grant” in the late nineteenth century include use as a reflexive verb? [Ed.: I’m pretty sure he means “late eighteenth century” here, not “late nineteenth century.”]

And in conclusion (after the graphs):

It looks to me like “granting” was something one did to someone else back in the eighteenth century (just as it is today), unlike “giving,” which was (and remains) something one can do to oneself.

Can Donald Trump “pardon himself?” Perhaps. But that’s not the precise question. The precise question is whether a pardon is something he can “grant” if he is also the recipient.

It doesn’t look that way to me, at least if we’re talking about the ordinary meanings of words.

This is basically what my co-blogger Andrew Hyman argued, writing for The Originalism Blog almost a year ago (without graphs, though): The President May Not “Grant” Himself a Pardon. From the core of the argument:

I believe the key word here is not “pardon” but rather the word “grant” which means to agree to give or allow something requested, or to give something from a grantor to a grantee.  The strong implication is therefore that two people are involved in a grant.  Whereas it was a common concept in 1789 to forgive one’s self for wrongdoing, it was not common in 1789 to say that one grants something to one’s self.  This is apparently why no one in the late 1780s so much as hinted that a president could grant a pardon to himself, despite considerable public discussion about the pardon power (e.g., according to George Mason’s widely published “Objections to the Constitution”, “The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt”). …

[It would be different if] the clause in question had said something like the President “shall have Power to Pardon Offenses against the United States, except in Cases of Impeachment.”  But the clause does not say that, and instead uses the word “grant” which implies that two people are involved: a grantor and a grantee.  The old English legal lexicographer Giles Jacob wrote in 1729 that requisite to every good grant is that there is agreement and acceptance of the thing granted, between grantor and grantee, which again implies that two people are involved.  Not one.

I think it’s pretty persuasive, and moreover it’s the best way that I can see to get around the key textual point for the opposing position: the Constitution states two express limits on the pardon power (that it is only for crimes against the United States and that it doesn’t extend to impeachment).

The expressio unis canon says that because these exceptions are stated expressly, they are the only exceptions.  But the point of the “grant” argument is that no exception is needed; the pardon power simply doesn’t include self-pardons.  As Andrew Hyman says, it would be different if the framers had used different language — e.g., “The President may pardon offenses.”  But that’s not the language, and a textualist/originalist should take the language seriously.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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