Constitutional Word Games

In late November of 2020, Donald Trump acknowledged his defeat by Joe Biden. Trump will soon leave the White House. And that means Trump will soon be vulnerable to prosecution for any crimes and misdemeanors he committed while in office. 

We are talking here mostly about Trump’s habit of steering government money into his own pockets. The Constitution prohibits the president from receiving “emoluments” while in office and Trump has done this openly and shamelessly. The violation is recognized not just by Trump’s political opponents but by legal experts and constitutional watchdogs.

Trump has claimed the Emoluments Clause in the Constitution is “phony.” But whether it is or isn’t, he has also claimed he has the power as president to pardon himself, so that misdeeds he did in office cannot be held against him after he steps down.

Article II of the Constitution says the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States...” But here’s the thing. No one can say whether that power to grant pardons allows a president to pardon himself. The Constitution isn’t clear. It doesn’t say he can’t. And no president has ever tried to do it. So here we are in the year 2020, with 230 years of Constitutional government behind us, and no one knows what the law of the land even is.

Law Professor Eric Muller writes in The Atlantic that Trump can’t pardon himself. Muller’s argument is based on a careful use of language:

The president has the power not to pardon people, but “to grant … Pardons” (emphasis added). So the question is not whether Drumpf can pardon himself. It’s whether he can grant himself a pardon.

Precise use of language is certainly a good thing. People should always use words correctly, and especially where matters of law are concerned. Muller insists here that “pardon” is a noun and “grant” is a transitive verb.

Having trouble with the concept of “transitive verb?” Think of the word “throw.” That word describes an action, which makes it a verb. But it is a particular kind of verb — a transitive verb — because the action works upon something else. You can throw a ball. You can throw a bone. You can throw a fit. But you cannot simply “throw.”

“Throw” is a transitive verb, and “grant” also is a transitive verb. For a pardon to be granted, it has to move from one person to another. Just as I might ask you to pardon me for stepping on your toe, a pardon doesn’t become real until it has been granted by one person to another. Muller says the word “grant” has to act upon some other thing. In this case, that other thing is the pardon.

Based solely on other uses of grant in the Constitution, a person could reasonably determine that a president cannot grant himself a pardon. But in evaluating the meaning of the Constitution’s words, the text of the Constitution isn’t all that counts. The most common interpretive method these days—championed by Justice Antonin Scalia and now broadly popular among conservatives—is to look for evidence of a term’s “original public meaning.” That, theoretically, is the meaning that ordinary English speakers of the late 18th century would have attached to a given term when coming upon it in a legal document like the Constitution.

That all sounds convincing. And Muller is a law professor at a major university, so he ought to know. But any citizen can join in Muller’s game and can look at documents written at the same time as the Constitution to see how people used the word back then.

One of the best sources for the sense and meaning of words as the founders used them is The Federalist Papers — the collection of 85 essays written to explain and justify the Constitution to the public in 1788. Two of the authors of The Federalist Papers were themselves authors of the Constitution. Those essays are as near to original intent as we’ve got.

In Federalist essay #74, Alexander Hamilton discusses the powers of the president.  He writes that the president “is also to be authorized to grant reprieves and pardons for offenses against the United States.” He follows the grammar that Muller insists on above — “pardon” is a noun and “grant” is the transitive verb. But in the very next sentence of essay #74, Hamilton refers to “the benign prerogative of pardoning,” and in the next paragraph he again refers to “the power of pardoning.”

Muller’s insistence that pardon was not used as a verb by the founders goes out the window. Hamilton says quite clearly in Federalist #74 that the president can “pardon.”

The Congenial Iconoclast is not a legal scholar and should not be the final word about what is Constitutional or what is right. The power to declare that does not lie with me. The point I want to make here is that the power does not lie with the people either.

In a republic, the people supposedly have the real power and authority. That is what the phrase, “deriving their just power from the consent of the governed’ in the Declaration of Independence means.

But in America the vital question is seldom, “What do the people want?” it is more often, “What does the Constitution allow?”

The desires of the people and the Constitution don’t always align. And when the two come into conflict, the will of the people takes a back seat. Often, it doesn’t matter what the people want if the Constitution doesn’t allow it.

That alone is a big comedown from the high aspirations America is based on. The notion of “government of the people, by the people, and for the people” is a notion and nothing more. And it is a notion that becomes especially problematic when the Constitution is not clear. Because when ordinary people don’t rule and the Constitution isn’t clear, then the power goes into the hands of an unelected few with the arcane and sophisticated ability and privilege of interpreting the Constitution. Law professors like Professor Muller get to give their opinion; unelected federal court judges get to decide.

And the decision will be based on a combination of legal interpretation of the wording (“shall have Power to grant Reprieves and Pardons for Offenses”) and the political prerogatives that go under the guise of “what’s best for the country.”

The will of the people won’t be considered at all.