- Max Stearns
The Textual Case Against Trump Pardoning Himself
And even tonight, with all of the heated back and forth, between my opponent and me at the debate last night, we have proven that we can actually be civil to each other. In fact, just before taking the dais, Hillary accidentally bumped into me and she very civilly said, “Pardon me.”
And I very politely replied, “Let me talk to you about that after I get into office.”
Donald J. Trump, speech at the Al Smith Dinner (Oct. 21, 2016)
“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!” Donald Trump (@realDonaldTrump), TWITTER (June 4, 2018, 8:35 AM),
On his own behalf, and through his attorney, Rudy Guiliani, Donald Trump has proposed that he has the power to issue himself a pardon, even while stating there is no need as he has done nothing wrong. The same idea was floated during the Nixon administration, with the Office of Legal Counsel, the legal advisor to the Office of the President, concluding that Nixon lacked the power to issue himself a pardon.
Those claiming the President may pardon himself rest on the wording of the pardon clause, set out in Article II, § 2, clause 1. The clause states: “The President...shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The only express exception involves “Cases of Impeachment.” And so, the argument goes, the President’s pardon power is absolute, including as applied to himself. To be sure, there are policy arguments, resting on checks and balances and separation of powers, against allowing the President to be the final word of his own alleged criminal conduct, the relevant context for issuing a pardon. Noted legal scholars have expressed conflicting views. Brian Kalt has argued against the power of the President to pardon himself, and Richard Posner and Mark Tushnet have expressed the contrary view. To be sure, the power to pardon oneself implicates a host of questions concerning constitutional methodology. These include commitments to textualism, original public meaning, living constitutionalism, and more. This blog post obviously will not tackle these ongoing jurisprudential debates beyond noting that in some specific contexts, such as the conditions of eligibility for serving in Congress or as President, including age, narrow questions of textual meaning take on greater importance than when construing more open ended provisions, such as the Fourteenth Amendment due process and equal protection clauses. Here I am addressing a narrow and specific textual claim. Trump and his team claim that the absence of an express exception disallowing the President to pardon himself, especially because the clause does contain one for impeachments, implies that Trump holds that power. That textual claim is mistaken.
The pardon clause does not expressly disallow the President to pardon himself for a very simple reason: the meaning of “pardon.” The Framers used “pardon” consistently with how that word was understood at the time they wrote, for centuries prior to their writing, and as it is understood today. Some words change meaning over time, but not all, or even most. Justice Antonin Scalia famously (over-)stated: “Words have meaning. And their meaning doesn’t change.” Even acknowledging that the meanings of some words do change, “pardon” is among the words within the Constitution whose meaning has generally remained stable, and for which any changes in usage or context have no bearing on Trump’s textual claim.
Pardon, in its conventional usage, and almost without exception, involves the conferral of relief by an authority holding the power to grant it upon some other person. Pardon, Oxford English Dictionary (OED) (3d ed. 2005), (subscription required). The most relevant definition in the unabridged OED is as follows: "3. gen. The passing over of an offence without punishment; the overlooking or forgiveness of an offence or error and the treatment of the offender as if it had not been committed." The OED also provides the etymology of "pardon," going back many centuries, along with historical examples of usage. It fails to list a single example of a self-conferred pardon. To be clear, even locating an occasional outlier, not reflecting generally accepted meaning and usage, does not suffice to refute accepted public meaning in light of overwhelming contrary evidence on general usage. Among the OED's prior and contemporaneous illustrations under the preceding definition of pardon are the following: (1) "1616 Shakespeare Measure for Measure (1623) . i. 173 Tomorrow you must die... Let me ask my sister pardon."; (2) "1754 D. Hume Hist. Eng. (1812) I. 275 [Robert] craved pardon for his offences, and offered to purchase forgiveness by any atonement."; and (3) "1771 E. Griffith Hist. Lady Barton I. 267 I had many times thought of returning to Briançon, of throwing myself at my only surviving parent's feet, and of endeavouring to obtain her pardon." None of the listed OED illustrations from earlier or later historical periods are contrary.
To be sure, the limitation of granting a pardon to another is implied, but definitions also rest on consistent historical usages and patterns of usage, which reflect meaning, as these and other listed examples make plain. To the extent that the meaning, or at least the connotation, of pardon has changed, it is that early usages, not surprisingly, tended to emphasize actors within religious, rather than secular, institutions. But that has never been the only context in which the term was used, and, in fact, historical usage is consistent with the word's meaning in contemporary every day speech. Such usage is telling because, once more, it invariably involves the granting of relief from person A to person B, or a request for relief from person B to person A. This reading is also consistent with that of Minnesota Senatorial Candidate and former presidential ethics advisor, Richard Painter.
Supporters of the President, or at least of his argument on this issue, have one usage that might appear to support their claim, but that on closer inspection, establishes the point made here: “pardon me.” This formed the basis for Donald Trump’s joke at the Al Smith dinner in October of 2016. But think about it. The expression is a request from the speaker to someone else to have a pardon issued. It is not an assertion of authority by the speaker to remove the basis for offense through a unilateral declaration, as in “you may not be offended as I have declared myself pardoned.” “Pardon me” both concedes having done something wrong and the need for, or convention of, seeking relief, in the form of a pardon, by someone other than the person making the request. The construct of “pardon me” is analogous to a well-established principle of contract law: an advertisement is not an offer, but rather, it is an invitation to make an offer, which the advertiser may then accept or reject. Restatement (Second) of Contracts § 26 cmt. b (Am. Law Inst. 1981) (“Advertisements of goods by display, sign, handbill, newspaper, radio or television are not ordinarily intended or understood as offers to sell."). Likewise, pardon me is an invitation to the person not speaking to issue a pardon, which the listener may, once more, accept or reject.
To be sure, there is a word that conveys granting oneself relief. A person attending a meeting who receives a text message, a note, or a wave from an assistant, might say, “With apologies, I need to excuse myself from the meeting.” She would not say “I need to pardon myself,” for the simple reason that pardon and excuse, while related, are different words with sufficiently distinct meanings and connotations to matter. The point is not a grammatical one; there is nothing wrong with the reflexive use of a transitive verb. Rather, it is that the particular transitive verb, to pardon, holds a different meaning, as indicated by its usage, than to excuse. This distinction is also well documented in the OED. The on-line version includes the following as a definition of excuse: “2.2 excuse oneself Say politely that one is leaving," coupled with this illustration, ‘I had to excuse myself and go out of the room’” Neither the on-line nor abridged version of the OED contain any such usages of “pardon.”
The argument here does not rest constitutional analysis on the rules of etiquette. Rules of etiquette, like the Constitution, employ commonly used words as they are understood at the time. President Trump may not pardon himself because the text doesn’t allow it. The meaning and usages of “pardon” make that plain. If the framers had sought to convey another meaning, consistent with the power Donald Trump now claims, they could have done so by writing: “The President...shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment, [and may excuse his own offenses].” The bracketed edit would have been entirely consistent with the commonly understood meanings of both "pardon" and "excuse" at the time the Constitution was written, and it would remain consistent with common usages today. The problem with Trump’s textual claim is that the Framers of the Constitution had no need to write in an exception to the pardon clause to preclude allowing the President to pardon himself because the meaning of the word “pardon,” to grant relief to another person, would have rendered such a clause redundant.
Final notes: Special thanks to David Shea and Sue McCarty for locating some helpful references and, more so, for thoughtful feedback on earlier drafts of this post. Finally, while writing this, I was reminded of this 1971 Lynn Anderson hit. Enjoy!
I welcome your comments.
#RichardNixon #HillaryClinton #BrianKalt #RichardPosner #AntoninScalia #RichardPainter #WilliamShakespeare #DavidHume #LynnAnderson #MarkTushnet