Can Trump Pardon Himself? Perhaps Not, But He Will Try

Reprinted with permission from DailyKos

We know that at least since 2017, Trump has been consumed with one question: Can he grant himself a pardon? "One former White House official said Trump asked about self-pardons as well as pardons for his family. Trump even asked if he could issue pardons preemptively for things people could be charged with in the future, the former official said," CNN reported earlier this month. The former official told CNN: "Once he learned about it, he was obsessed with the power of pardons. […] I always thought he also liked it because it was a way to do a favor." One important note here: He could only pardon himself or others for federal crimes, and he has no coverage for the state crimes of the Trump Organization, which is being investigated by both the New York attorney general and the Manhattan district attorney.

But there's another question, and that's whether the Constitution actually does allow a presidential self-pardon. This is a fun read in The Atlantic from constitutional law professor Eric L. Muller a the University of North Carolina Chapel Hill, pondering whether Trump can pardon himself for all his past and potentially future crimes. What makes it fun is that Muller argues he has no power to do that because of one simple word: "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."

Muller goes on to argue that the word "grant" and all its uses throughout the Constitution are quite clear: It's transitive "from one entity to another." Okay, but that's just his interpretation. What about—as is all the rage amongst the Federalist Society gang who would certainly be down with Trump doing whatever the hell he wanted—the "original public meaning" of the word grant and how the founders would have interpreted it? Muller looks to the most popular law dictionary in use at the time, which simply defines grant as a noun: a "conveyance in writing of incorporeal things." And what is a "conveyance?" It is "a deed which passes or conveys land from one man to another."

What it all boils down to after a really fun lexicographic romp is that just like you can't surrender to yourself, Trump can't give himself a grant of pardon; it has to be conferred by another. "Can Donald Trump grant himself a pardon? The evidence, at least according to the text of the Constitution and its original meaning, says no," Muller concludes.

Which puts Trump in an interesting position. At this point he is committed to not conceding. His whole post-presidency period is being set up to allow him to continue to bilk the rubes who adore him out of their hard-earned dollars on the premise that he is still the rightful president and that the office was stolen from him. So in order to achieve that, he has to stay in office until Jan. 20. But he can't be immune from future prosecution unless he gets the pardon. To do that, he'd have to resign and have Mike Pence do the deed. But he'd then be ceding the office, ceding his claim. What a dilemma!

There's the possibility that he could say he was temporarily incapacitated at some point, put Pence in as acting president for long enough to wave the magic wand, and then be president again. But that would also mean he would have to admit to having done federal criming, something he has vociferously denied having done while publicly musing on Twitter about how he could totally pardon himself if he wants to.

If nothing else, it's an intriguing question to ponder in the off hours. Largely because it gives one the opportunity to imagine Donald Trump behind bars.