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07/31/2017

More on Presidential Self-Pardons
David Weisberg responds to Andrew Hyman: 
 
I have argued that Pres. Trump has power, under the Constitution, to pardon himself.  Andrew Hyman takes the position  that the president has no such power.  I think his arguments are ill-founded.
 
Mr. Hyman argues that the use of the word “grant” in Art. II, Sec. 2—“The President…shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.”—implies that the president cannot pardon himself, because a grant necessarily involves two people: a grantor and a grantee.  Therefore, the Constitution should be understood as not permitting the president to “grant” a pardon to himself.
 
In support of the idea that a valid grant necessarily involves two persons, Mr. Hyman refers to cases of real property conveyance.  He acknowledges that, even in the real property context, some courts have held that a grantor can be the same person as the grantee, but he apparently accepts a holding of the Colorado Supreme Court that “the general rule [is] that a grantor and grantee cannot be the same person for purposes of conveying property[.]”
 
The real property cases, I think, provide no helpful guidance for interpreting the word “grant” in the Pardon Power Clause.  In the real property context, a “grant” from Mr. A to Mr. A is inherently problematic because Mr. A is granting to himself something—i.e., a piece of property—that he already owns.  That is a puzzler.  But, in the context of the Pardon Power Clause, there is no analogous problem or puzzle: the president would be granting himself something—i.e., a pardon for federal offenses—that he most definitely does not already possess.  The two cases are, in that sense, entirely different.
 
Mr. Hyman asserts that the president could properly self-pardon if the Pardon Power Clause stated that the President “shall have Power to Pardon Offenses against the United States, except in Cases of Impeachment.”  But this formulation materially alters the plain meaning of the Clause, because it omits entirely reprieves, which the president is explicitly empowered to grant.  How would Mr. Hyman’s hypothetical clause read if it included reprieves?  It would be incoherent: the President “shall have Power to Reprieve and Pardon Offenses against …etc.”  But offenses aren’t reprieved; convicted criminals who have been sentenced to death are reprieved.  The word “grant”—or some close synonym like “issue”—must be used in the Clause if the president is to have the power to grant reprieves.
 
Finally, Mr. Hyman and others refer to the maxim that no one is permitted to be a judge in his or her own case.  This maxim is inapposite.  Granting a pardon is a political act; it is not a judicial act.  The validity of a pardon—e.g., the validity of a presidential self-pardon—is a question of law for the courts.  But the granting of a pardon is not a question of law and cannot be compelled or forbidden by the courts.  In granting a pardon to himself, the president would not be acting as a judge.  He would be acting as a pardoner.