Why Trump can’t grant himself a pardon

By | November 24, 2020

Eric L. Muller writes:

As Donald Trump’s tenure in office comes in for its landing, a major question is whether the president—facing questions about liability for offenses including bank and tax fraud—can pardon himself.

This might seem like the right operational question, but it is imprecise as a constitutional one. Article II of the Constitution says that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Did you catch that? The president has the power not to pardon people, but “to grant … Pardons” (emphasis added). So the question is not whether Trump can pardon himself. It’s whether he can grant himself a pardon.

That might seem like an odd way of putting the question, but it’s linguistically important. On the one hand, some actions can’t be reflexive—you can’t do them to yourself. Think of surrendering, relinquishing, or handing over something. These verbs entail a transfer to someone else; the actor can’t also be the recipient.

On the other hand, countless verbs do leave open the possibility of reflexive meaning. If, for example, the Constitution had empowered the president not to grant a pardon but to announce a pardon, one would be hard-pressed to insist that the president could not announce himself as a recipient.

So, what about granting? Is it—in its usage in the Constitution—a verb more like handing over or announcing?

Judges and other legal scholars have a set of techniques for determining the meaning of constitutional text. One is to scour the rest of the Constitution for hints. If the same word appears in multiple clauses of the Constitution, one should assume that it has the same meaning throughout unless a clear reason exists to think otherwise. So let’s look at the verb grant in the Constitution outside the pardons clause. [Continue reading…]

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