Can Donald Trump "Grant" Himself a Pardon? I Doubt It.

Incredibly, serious people are now having seriously to discuss the constitutional implications of a presidential pardon of the president. (Thanks, Obama!)

The question on everyone's lips is always some version of "can Donald Trump pardon himself?"

But that's not quite the right phrasing. The right phrasing, per Article II, Section 2, is: "can Donald Trump grant a pardon to himself?"

There's a difference, in the form of the verb "to grant."

Might it be an important difference?

(A few caveats about what follows: (a) I am not following the discussion about this issue closely. This might have already been said a thousand times. (b) I am saying something about an approach to constitutional interpretation in which I place relatively little stock. (c) My methods are ridiculously simplistic -- a look at the Oxford English Dictionary and a couple of searches with a rudimentary Google tool.)

A person can certainly give himself something. I, for example, give myself grief on a regular basis about all manner of things. This is true about the verb "give" today, and it was true centuries ago. ("What the devil should move me to undertake the recovery of this drum, being not ignorant of the impossibility, and knowing I had no such purpose? I must give myself some hurts, and say I got them in exploit." William Shakespeare, All's Well That Ends Well, Act IV, Scene 1.)

But can a person grant himself something, in particular a legally operative thing like a pardon? To put the question in terms an originalist would prefer, did the ordinary meaning of the verb "grant" in the late nineteenth century include use as a reflexive verb?

Perhaps not. Note this definition of the verb "to grant" from the Oxford English Dictionary. (There other meanings, as in "I'll grant you that," for example; what appears here is the most germane one to the usage in Article II, Section 2):

Even without the specific "in Law" definition, the verb "to grant" seems to carry a sense of outward direction -- a transfer of something from a person with discretion to bestow or confer it to a recipient who has no claim of right to the thing but is instead dependent on the discretion of the one who bestows.

The more specific "in Law" definition makes this explicit: to "transfer from oneself to another person." To be sure, the specific legal context in which this most often appears is a deeded conveyance of real property. The thing "granted" in Article II, Section 2 is not a deed to real property but a document excusing its holder of legal culpability. Still, if the question is what the word "grant" likely meant to the ordinary person in the context of a legal document like a Constitution, this specific legal connotation seems informative.

There's another way we might get at the issue, though. If one could "grant oneself" something in the same way as one could "give oneself" something, we'd expect to see usage of the reflexive form of the verb to grant. We'd expect to see usage of the phrase "grant myself" or "grants himself," much as we'd expect to see usage of the phrase "give myself" or "gives himself."

But we don't. Here's the n-gram comparing the phrase "give myself" with the phrase "grant myself" between the years 1700 and 2000.

(To be clear: "grant myself" is the red line that runs along the x axis.)

And here's the n-gram comparing the phrase "gives himself" with the phrase "grants himself."

(Note: there are no meaningful differences if the search is run with "... herself" or with the gerund "giving/granting" instead of "gives/grants")

It looks to me like "granting" was something one did to someone else back in the eighteenth century (just as it is today), unlike "giving," which was (and remains) something one can do to oneself.

Can Donald Trump "pardon himself?" Perhaps. But that's not the precise question. The precise question is whether a pardon is something he can "grant" if he is also the recipient.

It doesn't look that way to me, at least if we're talking about the ordinary meanings of words.

 

 

 

Comments

[Jeff]

Eric, I haven't seen this argument before either (though I too have not been following the issue particularly closely), but I really like it. I agree that nitpicking constitutional language shouldn't drive constitutional interpretation, but I think everyone agrees that text is an important factor. This especially seems to support the historical claim that the founders never thought the President had the power to corruptly us the pardon power to protect himself. Text and history aren't everything, but they are especially important for issues that have little to no precedent.

[Joe Miller]

The word "grant" appears 8 times in the original Constitution, including in the pardon clause. In all 8 cases, it has the outward/other-directed character you describe.

[Joe Miller]

Also, the word "grant" doesn't appear in any of the 27 amendments.

[Eric Muller]

And let us not forget that Ulysses S. Grant was an extrovert. Seems relevant.

[Ralph D. Clifford]

In property law, the common law disallows a "grant" of a property interest to yourself. Under the traditional view, if I executed a deed to myself, the deed was ineffective and conveyed nothing. Today, this usually came up when the grantor wants to create a joint tenancy between the grantor and another. If the granting language "Jane to Sally and Jane, as joint tenants with the right of survivorship" is used, the conveyance to Sally works, but not the one to Jane. Consequently, the unities of time and title are violated and the joint tenancy fails, leaving Jane and Sally as tenants in common.

The property concept against granting to oneself that was in place when the Constitution was drafted isn't completely irrelevant when you consider the importance of property interests in the Constitution and the belief by many judges that the framers' understanding of the common law control the Constitution's meaning. Personally, I wouldn't be surprised if the origin of the word "grant" came from property law.

[Joe Miller]

One of the 8 uses of "grant" in the Constitution is a reference to a grant of land. Specifically, Article III, Section 2 provides as follows: "The judicial Power shall extend to ... Controversies ... between Citizens of the same State claiming Lands under Grants of different States."

[Deep State Special Legal Counsel]

DOUBT became reality on January 20, 2017, 12:01 pm, EDT.

[U.S. Grant]

But the Office of the President is doing the granting--an individual, Donnie Trump, is doing the receiving, right? Two different legal parties.

[r]

The charts of word usage show that "give myself" or "gives himself" were much more commonly used than "grant myself" or "grants himself." However, I think that is only the first part of the analysis. To prove the point attempted, I think you would also need to show that the proportion of the usage is substantially greater than the proportion of the usage of "give" vs. "grant."

As an example, if it turns out that from 1700 to 1850 or so, "give" and "grant" were used relatively equally then these graphs seem to be very persuasive evidence in support of the claim that grant denotes or connotes an outward act directed towards another. [Given the disparity shown in the charts, the analysis would still likely be persuasive even if "grant" were only used, say, 10 - 20% as often as "give."] However, if "give" is generally used much more often than "grant," during that time period, one would naturally expect "give myself" to also predominate over "grant myself" in roughly the same proportion and the analysis would not be as persuasive. For example, if the general ratio of "give" vs. "grant" is 100:1, we would also expect "give myself" to predominate over "grant myself" by a similar ratio, and we could not infer a different meaning for the word "grant" as argued in the post.

Unfortunately, I lack the time or inclination to run searches on "give" vs. "grant," which I assume will generate a huge number of results.

[Deep State Special Legal Counsel]

U.S. Grant^^^^You were just great, and I love winners, not losers, in that War of 1812 against Canada. Good thing you won buddy, cause I don't like fries with gravy. Clogs my arteries.