One of the interesting conversations of the day is whether presidents can issue pardons for themselves to protect against any future criminal charges they might face after leaving office. I will walk you down the legal path but first, a nerd warning: A grammar lesson is embedded in this analysis.
A number of news organizations have reported that President Donald Trump is considering a range of pardons for friends, family and himself and would announce the pardons Jan. 19, his last full day in office.
What is there to pardon? Bloomberg lists the possibilities:
A self-pardon could shield Trump from prosecution over a myriad of issues his political opponents have suggested could be worthy of prosecution, from his federal income tax filings to hush money payments to an adult film star to his inaugural committee’s spending at venues owned by the Trump family.
Some Democrats have continued to say Trump should face legal scrutiny over the Russian interference campaign during the 2016 election, despite Special Counsel Robert Mueller finding no evidence the president colluded with the Kremlin. And in recent days, Trump has drawn scrutiny over his effort to pressure officials in Georgia to overturn the results of the presidential election there, as well as inciting what became a violent mob that stormed the U.S. Capitol.
What does Article II, Section 2 of the Constitution say?
… and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
Keep in mind, that is saying presidential pardons only apply to federal offenses. There is at least one open fraud inquiry in New York where prosecutors are looking into the president’s businesses, and the Manhattan district attorney is working on a criminal prosecution against the president.
In 1974, one other period of American history when the president’s job was in peril, the U.S. Department of Justice offered guidance on the limitations of a presidential pardon. In short, there are limits. The summary said:
Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.
That seems clear enough. But, as the TV commercial goes, “Wait … there’s more.” The DOJ imagined what might happen if the president enacted the 25th Amendment, stepped down for a bit, the vice president then acting as president pardoned the president, then the president took over again. It is all a murky question, The DOJ admitted:
If under the Twenty-Fifth Amendment the President declared that he was temporarily unable to perform the duties of the office, the Vice President would become Acting President and as such could pardon the President. Thereafter the President could either resign or resume the duties of his office.
But what about Congress’ power to pardon a president? In the 1970s, Congress wanted to know if it could pardon Vietnam War protesters. The answer was, “no.”
Although as a general matter Congress cannot enact amnesty or pardoning legislation, because to do so would interfere with the pardoning power vested expressly in the President by the Constitution, it could be argued that a congressional pardon granted to the President would not interfere with the President’s pardoning power because that power does not extend to the President himself.
But if you read that closely, you will see a hole. If the president does not have the power to pardon himself, then Congress would not be interfering with such a power, and might be able to pull it off.
If you are a strict constitutionalist, you are looking not just for what the Constitution says, but what it does NOT say. Again, back to the Bloomberg article:
Brian Kalt, a professor at Michigan State University College of Law who has written extensively about self-pardons, said it’s not clear whether the president can do it.
“The main argument in favor of the self-pardon power is that the Constitution does not expressly rule it out, and that the pardon power is extremely expansive,” he said.
“The argument against self-pardonability starts with the idea that granting a pardon is, by definition, something one can only do to another person,” Kalt said. “There is also a general principle in the law against being the judge in one’s own case.”
And, because you journalists are grammar nerds, you might like this reasoning. Nick Akerman, a former Watergate prosecutor, points us back to the phrase I referenced above, “shall have Power to grant Reprieves and Pardons.” Akerman keys in on that word “grant” and says “grant” means it is something a president bestows on others. Wait for it, there is a grammar lesson coming up.
“It’s a transitive verb, the object of which is somebody other than the person doing the granting,” he said. “Linguistically, it doesn’t make sense that you can pardon yourself.”
Since I do not know what a “transitive verb” is, I hereby kick the question over to my studious Poynter colleague Roy Peter Clark, the author of “The Glamour of Grammar,” to explain. Roy’s first sentence may be the most important:
The word refers to the transfer of action from subject to verb. A transitive verb takes an object. An intransitive verb does not. But here is a wrinkle: the same verb can be transitive: “He wept bitter tears.” And intransitive: “Jesus wept.” I once argued that the verb “knelt” was intransitive. Until some wise guy sent me the sentence: “The trainer knelt the elephant before the prince.”
There is another, perhaps more significant grammatical distinction: the reflexive pronoun. I just looked up the word “myself.” The dictionary says it can be used reflexively, either as the direct or indirect object of a verb. “I love myself. I respect myself. I pardon myself.”
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