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Can a president self-pardon? Justice Alito has questions

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Supreme Court Justice Samuel Alito raised questions Thursday regarding presidential self-pardons and if that question needed to be answered before the court could decide if former President Donald Trump is entitled to the sweeping immunity his legal team has said all presidents enjoy.

Whether a president has the power to pardon himself has been untested by the courts because it has never happened. Should it happen in the future, it would almost certainly face a legal challenge.

On Thursday, Alito asked U.S. Solicitor Michael Dreeben, who represents the U.S. Department of Justice and Special Counsel Jack Smith, about the Justice Department’s position on self-pardons.

“I don’t believe the Department of Justice has taken a position on that,” Dreeben said. “The only authority that I’m aware of is a member of the Office of Legal Counsel wrote on a memorandum that there is no self-pardon authority. As far as I know, the department has not addressed it further. And of course, this Court had not addressed to the either.”

Alito said without knowing the Justice Department’s position, every future president would pardon themselves.

“Don’t you think we need to know the answer to at least the Justice Department’s position on that issue in order to decide this case?” Alito asked. “Because if the President has the authority to pardon himself before leaving office, and if the DC Circuit is right that there is no immunity from prosecution, won’t the predictable result be that presidents on the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?”

Dreeben said he doubted that would happen.

“It sort of presupposes a regime that we have never had except for President Nixon and as alleged in the indictment here, presidents who are conscious of having engaged in wrongdoing and seeking to shield themselves I think the political consequences of a president who asserted a right of self-pardon that has ever been recognized, that seems to contradict a bedrock principle of our law, that no person shall be the judge in their own case,” he said. “Those are adequate deterrence, I think, so that this kind of dystopian regime is not going to evolve.”

Former President Richard Nixon resigned from office in 1974 before he could be impeached over a break-in at the offices of the Democratic National Committee during the 1972 campaign, the heart of the Watergate scandal. After Nixon’s resignation, Vice President Gerald Ford assumed the presidency and pardoned Nixon.

Smith’s team has argued that Nixon’s acceptance of a pardon is evidence that president’s aren’t entitled to broad immunity from criminal conduct.

Prosecutors argued that even if Trump has immunity for some official acts, the criminal conduct he’s charged with also involved private acts.

“Even if this Court holds that a former President is entitled to some immunity from criminal prosecution for official acts, that principle does not preclude trial on this indictment,” they wrote in a court filing prior to Thursday’s oral arguments in the case.

In Washington, Smith’s team charged Trump with four federal counts related to contesting the 2020 election and the storming of the U.S. Capitol building on Jan. 6, 2021. The charges are conspiracy to obstruct an official proceeding, conspiracy to defraud the United States, obstruction, and conspiracy against the right to vote and to have one’s vote counted, according to the indictment. Trump has pleaded not guilty to all charges.