« Bryan Garner at the Supreme Court
Michael Ramsey
| Main | Why Justices Thomas and Alito are Correct About Mandatory SCOTUS Jurisdiction
Andrew Hyman »

12/10/2020

 The President Certainly Can "Grant" Himself a Pardon
David Weisberg

Andrew Hyman (here) and Eric Muller (here) have asserted that the president cannot grant himself a pardon, and Michael Ramsey has recently disclosed (here) that he leans toward acceptance of that position.  I think that a careful analysis irrefutably defeats that position.

Both Hyman and Muller cite principles of real property law in an attempt to establish that, where something is granted, there must necessarily be two persons involved: a grantor and a grantee.  Hyman cites a Colorado Supreme Court case in which the court referred to “the general rule that a grantor and grantee cannot be the same person for purposes of conveying property[.]”  And Muller cites a ratification-era legal dictionary that defines a “grant” as a “conveyance”, and a “conveyance” as “a deed which passes or conveys land from one man to another.”  Thus, Hyman and Muller both conclude that the “grant” of something must necessarily involve two persons, and Prof. Ramsey agrees. 

But the maxims of real property law are completely inapposite to a situation where what is granted is a pardon, and not real estate.  Maxims from real property law are inapposite because, if one grants oneself property that one already owns, that “grant” is seemingly a vacuous nullity.  Before the grant was made, the owner owned the property, and, after the grant was made, the same owner owned the same property.  The situation would be entirely different if the president could grant himself a pardon: before the grant was made, he would not have a pardon; after the grant was made, he would have one. 

But, what about the notion that a grant requires two different persons, one grantor and one grantee?  This notion is erroneous, and it probably seems plausible only because the verb “grant” is a highfalutin’, twenty-five cent word infrequently used in everyday conversation.  But consider a very mundane example: “Attorney Smith, in his capacity as managing partner of the law firm, granted to himself 25% of the firm’s profits.”  Is there anything paradoxical, mysterious, or self-contradictory about that proposition?  Absolutely not. 

The grantor and the grantee need not be two different persons, if one single person is acting in two different capacities in the course of the transaction.  If Donald Trump were to pardon himself, he would be acting in his official capacity as president when he grants the pardon and as a private individual when he accepts the pardon.  Nothing in the grammar or logic of the verb “grant” bars that from happening, and the plain meaning of the Constitution does not bar it either.      

The only stated limitation on the president's power to grant pardons is the exception for "Cases of Impeachment."  The use of the verb "grant" certainly does not amount to an explicit limitation of that power, and it does not give rise to any implicit limitation that excludes self-pardons.  The "Attorney Smith" example proves that you don't need two different persons to have a proper grant with a grantor and a grantee; one person acting in two different capacities will do the trick. 

MICHAEL RAMSEY ADDS:  Reader Jonathan Mattox emailed me a comment along the same lines, posted here with his permission:

The word “grant” does contemplate that two parties are involved. As a real estate lawyer, I sometimes have someone call me who wants me to prepare a deed to themselves from themselves. I always tell them that won’t work. That’s because a grant require a grantor and a grantee.

But in my line of work as a real estate lawyer, there are times where one person can be both the grantor and the grantee. This possibility arises when a person is a grantor in one capacity and a grantee in another capacity.

A couple examples:

John Smith Sr.’s will leaves everything to the executor his estate. John Smith Jr. is named Executor. After the estate is settled, John Smith Jr., Executor of the estate of John Smith, Sr., conveys property willed to himself as executor unto himself, individually.

I establish  a trust and convey my house to myself as Trustee of the Trust. I later decide to take the property out of trust to enter into a mortgage (the lender won’t allow me to enter into the loan through a trust). As trustee, I convey the property to myself.

The point is that one person can be both a grantor and a grantee if different legal capacities are involved. If a former president was going to be prosecuted, the prosecution would have to be brought against the former president individually, since he is no longer president. Thus, a presidential pardon would be in the form of “Donald J. Trump, president of the United States” granting the pardon to “Donald J. Trump, individually”.

I believe these examples work against the theory that the word “Grant” precludes a self-pardon.