24 November 20
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FOCUS: The One Word That Bars Trump From Pardoning Himself
Eric Muller, The Atlantic
Muller writes: "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."
The question shouldn’t be whether the president can pardon himself but whether he can grant himself a pardon—and those are not the same thing.
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 surrendering, relinquishing, 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.
So, what about granting? Is it—in its usage in the Constitution—a verb more like handing over or announcing?
Judges and other legal scholars have a set of techniques for determining the meaning of constitutional text. One is to scour the rest of the Constitution for hints. If the same word appears in multiple clauses of the Constitution, one should assume that it has the same meaning throughout unless a clear reason exists to think otherwise. So let’s look at the verb grant in the Constitution outside the pardons clause.
Article I says that all of the “legislative power herein granted shall be vested in a Congress of the United States.” “We the People” are doing the granting here, doling out to Congress the power to make policy. Grant here is transitive—from one entity to another.
The same article gives Congress the power “to grant Letters of Marque and Reprisal.” Those are permission slips that let private commercial vessels make war against ships of enemy nations and do things that would otherwise be piracy. Again, grant is transitive—from Congress to ships.
Article I later states that “no Title of Nobility shall be granted by the United States,” that “no state … shall grant Letters of Marque and Reprisal,” and that “no state … shall grant any title of Nobility.” Transitive, transitive, and transitive.
According to Article II, the president has the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Again, transitive. If, say, the previously Senate-confirmed secretary of education quits while the Senate is in recess, the president can name a temporary replacement.
The last use of the word grant in the Constitution, apart from the pardons clause itself, is in Article III, where the power of the judiciary is set to include “Controversies … between Citizens of the same State claiming Lands under Grants of different States.” Here grant is a noun, not a verb, but it again describes something extending from one entity (a state) to another (a citizen).
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.
Now, dictionaries are not the only available evidence of a term’s meaning at a particular historical moment. We have books, newspapers, and other printed matter. And people today are fortunate to have an easy way to search huge amounts of such material in the form of the Google Books Ngram Viewer. This extraordinary bit of technology allows a user to pick a beginning and an end date and request a calculation of the frequency with which words and phrases appear in all of Google’s scanned written material from that time period. This tool can reveal, for example, that the word texting got almost no use across the 20th century until 1997, when, for reasons everyone can infer, it began to skyrocket.
According to the Ngram Viewer, did English speakers in the late 18th century understand the verb grant to have a reflexive meaning? In their world, could you grant something to yourself? If you could, evidence of that in the form of phrases such as grants himself and grants herself and grant themselves and grant myself and grant yourself should appear throughout the Ngram Viewer’s corpus.
But, in the time period from 1750 to 1800, essentially none of these appears. Transitive uses of the verb—“grant me,” “grant him,” “grant her,” “grant us,” “grant you,” and the like, where the person receiving the grant is different from the person doing the granting—are all common. But reflexive uses, where the person doing the granting is also the person on the receiving end? All but nonexistent. In most instances where a phrase like grant myself does pop up, it’s a different meaning of grant entirely, as in John Knox’s 1790 book, History of the Reformation of Religion in the Realm of Scotland, in which the word means something like “acknowledge”: “And when you let me see the contrary, I shall grant myself to be deceived in that point.”
To be sure, by the 20th century a reflexive meaning of grant appears in Ngram Viewer searches, as in this passage from a 1921 Macmillan Reader for Commercial Classes: “We need more sleep at twenty-five than we do at fifty, and the young man who grants himself less than eight hours’ sleep every night just robs himself of so much vitality.”
In the second half of the 18th century, we see no such evidence.
Ask the wrong question, you get the wrong answer. Can Donald Trump pardon himself? Perhaps, but that’s not the question the Constitution requires us to ask. Can Donald Trump grant himself a pardon? The evidence, at least according to the text of the Constitution and its original meaning, says no.
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