According to his comments at the Supreme Court today, Justice Samuel Alito believes the legality of a President of the United States issuing a self-pardon — an authority which has never been ruled on — is a critical, unresolved element in the decision SCOTUS must make in considering former President Donald Trump‘s claims of presidential immunity for any and all actions he took as president.
Pardons are one of the executive powers a POTUS wields that are not subject to Congressional checks and balances, and as a practical matter Alito asserts that the presidential immunity issue is more or less moot if the ability for a President to pardon himself (or herself) exists.
“Don’t you think we need to know the answer — at least to the Justice Department’s position — on that issue,” Alito asked in today’s hearing, “in order to decide this case?”
Alito: Because if a president has the authority to pardon himself before leaving office, and the D.C. 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 pic.twitter.com/hwvyUQr5WL
— Acyn (@Acyn) April 25, 2024
Alito offered a hypothetical, saying that if “the president has the authority to pardon himself before leaving office and the D.C. Circuit is right that there is no immunity from prosecution, won’t the predictable result be that presidents on the last couple days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?”
DOJ attorney Michael Dreeben responded to Alito’s scenario saying he “really doubts” that would happen because it “sort of presupposes a regime that we have never had except for President Nixon and, as alleged in the indictment, here.”
Addressing Alito’s curiosity about the Justice Department’s position on whether POTUS self-pardons are permissible, Dreeben noted that the Supreme Court has never examined the issue of presidential self-pardon authority.
He added: “I don’t believe the Department of Justice has taken a position [on self-pardons]” — though Dreeben cites as the “only authority” he knows “a member of the Office of Legal Counsel who wrote on a memorandum that there is no self-pardon authority.”