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The President May Not "Grant" Himself a Pardon
Andrew Hyman

Can the President of the United States pardon himself or herself? This has been the subject of much recent discussion, including here at the Originalism Blog where Mike Ramsey and also Mike Rappaport both leaned a bit toward “no” for different reasons.  I agree that the answer is no, but for a reason that is different from any I have seen written about at this blog or elsewhere.

Before addressing the difficult question of whether the President can pardon himself, let’s get the easy issue out of the way: he can be pardoned by the Vice-President. Section three of the Twenty-Fifth Amendment is very clear about this. It says that the powers of the presidency, including the pardon power, devolve upon the Vice-President whenever the President decides to voluntarily take a break from the office by becoming unavailable. During that period, the Vice-President would be free to pardon the President, and then the President could take back the reins of the presidency. This understanding of vice-presidential power has been explicitly endorsed by the executive branch since 1974, if not earlier. The New York Times also mentioned it favorably a few days ago.

But now suppose the President would like to pardon himself, perhaps because the Vice-President does not want to do it, or in order to spare the Vice President the sort of stigma that befell Gerald Ford when he pardoned Richard Nixon. The idea of a self-pardon is not absurd at all. In England, the King could not be charged with crimes nor be impeached, and so it would have made sense for the authors of the U.S. Constitution to limit that immunity---without entirely destroying it---by making the President subject to impeachment, as well as subject to prosecution and conviction under state law, while still allowing the President to pardon himself for violations of federal law. That may seem like an obnoxious concept, but it would offer a President substantial protection from prosecution by an overzealous and vengeful successor President, and would also protect the President from statutes that impose criminal penalties for official presidential acts(this link shows Ohio Senator and future SCOTUS Justice Stanley Matthews suggesting a self-pardon power).  So the notion is plausible, but of course that does not mean that the Constitution allows it, and I do not think it does.  

The Supreme Court stated in the 1974 case of Schick v. Reed that “We therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself.” This is a reasonable rule of interpretation. The Constitution itself says that the President “shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” 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 is true that on several occasions courts have said that a grantor and grantee may be the same person, but generally speaking this must be affirmatively stated by positive law.  For example, in a 2004 case, the Colorado Supreme Court said, “The [lower] court also noted that Taylor's conveyance to himself was contrary to the general rule that a grantor and grantee cannot be the same person for purposes of conveying property….[But,] section 38-31-101 expressly allows the owner of property to become both the grantor and the grantee for purposes of establishing a joint tenancy. This concept directly conflicts with the four unities doctrine and the notion that one could not be a grantor and a grantee.”

Regarding the ancient principle that no one can be a judge in his own case, I agree with Mike Ramsey that this was a common law principle applicable to various judicial proceedings, and was not applicable in executive and legislative proceedings.  And I agree with Mike Rappaport that the idea of a royal self-pardon against criminal process would not necessarily have been nonsensical, because "perhaps the King still had this power, but it was simply unnecessary to use."  Even if it was nonsensical in England, I think a self-pardon might well have made sense in the U.S. Constitution 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.