Article II Section 2 of the Constitution states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
According to English common law, which was the law and legal definitions understood by all thirteen of the original colonies that became the first states, a pardon is an act of clemency by one person in authority to another. By definition it is not an act towards oneself.
Further, even this section of the Constitution does not state that the president has the “power to pardon,” but that the president “shall have power to grant reprieves and pardons” — not that it is not an act of pardon directly, but a GRANT of pardon. A grant is a gift to another person. One does not GRANT something to oneself.
Thus by both the definition of the word “pardon” under common law definitions as understood by the Founders, and thus their legal intent, AND by the wording that the act is not to pardon but to GRANT (to give to another) a pardon, the clear wording of the Constitution is that a president CAN NOT PARDON HIMSELF.
No originalist or textualist who is true to their self-described judicial philosophy could interpret the Constitution otherwise.
If Trump wants a pardon, he may have to LET THE TURKEY (Mike Pence, all white meat) PARDON HIM. This would require that he resign, give Pence the honor, however briefly, of becoming #46 and pardoning him and let Joe Biden become #47.
April 12, 2017
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