The Pardon Power Clause Does Permit the President to Pardon Himself [Updated]David Weisberg

With regard to the recent post on this blog concerning Eric Muller’s post at The Faculty Lounge:

 

(1) Prof. Muller begins his post by asserting: “A person can certainly give himself something.”  (Emphasis in original.)  He then proceeds to express doubts that a person can grant himself something.

 

He relies, in part, on the OED, which provides the following definition of the verb “to grant”: “5. a. to bestow or confer (a possession, right, etc.) by a formal act.  Said of a sovereign or supreme authority…, etc.  Also, in Law, to transfer (property) from oneself to another person, especially by deed.”

 

The only relevant OED definition of the verb “bestow” is as follows:  “6. tr. (& absol.) to confer as a gift, present, give.”  If “to bestow” and “to give” are roughly synonymous, and if “to grant” and “to bestow” are roughly synonymous, one would think that “to give” and “to grant” are roughly synonymous.  So, if “give” and “grant” mean the same thing, then it would seem to follow that a person can grant himself something.

 

The very fact that Prof. Muller has to make an elaborate argument that one cannot grant something to oneself implies that our natural linguistic instinct tells us the opposite is true.  Here is a thought experiment.  Suppose the Pardon Power Clause said: “[H]e shall have Power to grant, to anyone other than himself, Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  (N.B. The phrase “except in Cases of Impeachment” would still have force, because it bars the president from issuing a pardon to halt the impeachment of someone other than the president.)

 

Everyone would recognize the hypothetical formulation as definitively supporting the conclusion favored by Prof. Muller, but he himself would have to reject it as meaningless.  If it is linguistically impermissible to say that someone “grants to himself” something—which, by the way, is importantly not one of the phrases Muller analyzed using corpus linguistics—then it would also be linguistically impermissible to say that a person may grant something “to anyone other than himself.”  But we all understand perfectly well what the latter phrase means, and there is no reason to doubt that the framers would have understood it in precisely the same way we do.  (I have fleshed out this point in my paper on SSRN, “Originalism is Dead…Long Live Identicalism!”)

            

(2) Prof. Muller highlights the part of the OED definition of “grant” that refers to transfers of property.  Notwithstanding the OED’s reference to “Law,” the special use of “grant” in conveyances of property provides no helpful guidance for interpreting “grant” in the Pardon Power Clause.

  

In the conveyancing context, a “grant” from Mr. A to Mr. A is inherently problematic because Mr. A is granting to himself something—viz., a piece of property—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—viz., a pardon for federal offenses—that he most definitely does not already possess.  The two cases would be, in that sense, entirely different.

 

(3) I think the expressio unis canon referred to by Prof. Ramsey is controlling here.  The framers took care that a president could not stymie impeachment proceedings against him by giving (providing, granting, issuing, conveying, conferring...?) a pardon to himself.  It is hard—for me, it is impossible—to believe that the framers never noticed a similar possibility relating to ordinary federal prosecutions.  They could have drafted the Pardon Power Clause to end with the following two exceptions: “…, except in Cases of Impeachment, or in criminal prosecutions where he is the accused.”  That they did not do so answers, in my mind, the question at issue. 

 

UPDATE (by Michael Ramsey):  Michael McConnell (Stanford) agrees in the Washington Post: Trump’s not wrong about pardoning himself (via How Appealing). Professor McConnell mainly relies on the expessio unis argument plus this drafting history:

 

Two days before the Constitutional Convention voted in 1787 to approve the final draft, Edmund Randolph of Virginia moved to narrow the president’s pardon power on the ground that it “was too great a trust. The President himself may be guilty.” His point was supported by none other than James Madison. But James Wilson of Pennsylvania, the finest lawyer among the delegates and later a justice on the first Supreme Court, stressed the importance of the pardon power and argued that if the president “be himself a party to the guilt, he can be impeached and prosecuted.” (“Prosecuted” meant prosecuted before the Senate.) Randolph’s motion was defeated eight states to two, with one state divided.

The framers of the Constitution thus specifically contemplated and debated the prospect that a president might be guilty of an offense and use the pardon power to clear himself. They concluded that the remedy of impeachment by the House and conviction by the Senate was a sufficient check on the possibility of abuse.