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11/25/2020

Eric Muller on Self-Pardons
Michael Ramsey

In The Atlantic, Eric Muller (UNC): The One Word That Bars Trump From Pardoning Himself.  From the introduction:

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 surrenderingrelinquishing, 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.

And from later on:

Based solely on other uses of grant in the Constitution, a person could reasonably determine that a president cannot grant himself a pardon. But in evaluating the meaning of the Constitution’s words, the text of the Constitution isn’t all that counts. The most common interpretive method these days—championed by Justice Antonin Scalia and now broadly popular among conservatives—is to look for evidence of a term’s “original public meaning.” That, theoretically, is the meaning that ordinary English speakers of the late 18th century would have attached to a given term when coming upon it in a legal document like the Constitution.

But how is one to determine this “original public meaning”? One place to begin is a law dictionary in use at the time, such as The Law-Dictionary: Explaining the Rise, Progress, and Present State of the English Law; Defining and Interpreting the Terms or Words of Art; and Comprising Copious Information on the Subjects of Law, Trade, and Government, compiled by Giles Jacob, and the most popular legal dictionary of the era. According to Jacob’s tome, a grant—which he defined only as a noun—is a “conveyance in writing of incorporeal things.” And what, in turn, is a conveyance? It is “a deed which passes or conveys land from one man to another.”

Note: “from one man to another.”

Thus, to the extent that the most popular contemporaneous law dictionary is valuable in understanding what ordinary speakers of the founding era meant by “granting,” it seems clear that they probably had in mind an interpersonal transfer.

Thanks to Bryan Wildenthal for the pointer.

Prior Originalism Blog discussion of this issue:

Michael McConnell, guest-blogging: Further Thoughts on the President's Self-Pardon Power

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

Michael Ramsey: Tribe versus Tushnet: Can the President Pardon Himself?

Mike Rappaport: Can the President Pardon Himself?