Justices Broach President’s Self-Pardon Power at Trump Argument

The US Supreme Court has never addressed whether a president has the power to pardon themselves and that unanswered question was one that loomed over proceedings in Donald Trump’s appeal for immunity from criminal prosecution over his efforts to overturn the 2020 election.

During the argument on Thursday, Justice Neil Gorsuch suggested that future presidents might be incentivized to pardon themselves before leaving office if their successors can criminally prosecute them for their acts while in office.

“I mean, we’ve never answered whether a president can do that,” Gorsuch said. “Happily, it’s never been presented to us.”

That seemed to push Justice Samuel Alito to press the government’s attorney, Michael Dreeben, on whether the president has that authority.

“What’s the answer to that question?” he asked.

As the presumptive Republican nominee, the former president has a real chance of winning a second term in office in November. But whether Trump in a second term or another president could pardon themselves is a question attorneys for the Justice Department couldn’t answer in court.

“I don’t believe the Department of Justice has taken a position,” 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.”

Alito pressed Dreeben on whether he was speaking in his capacity as a member of Special Counsel Jack Smith’s team or on behalf of the Justice Department. Dreeben said he was speaking on behalf of the Justice Department representing the United States.

“Don’t you think we need to know the answer at least to the Justice Department’s position on that issue in order to decide this case?” Alito asked.

Trump argues he has absolute immunity from criminal prosecution for official acts while in office, but the justices seemed to grapple with whether all of the conduct alleged in Smith’s indictment qualify as duties of the office.

“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 in office are going to pardon themselves from anything that they might have been conceivably charged with committing?” Alito asked

Seemingly trying to assuage Alito’s concerns, Dreeben said it would “contradict a bedrock principle of our law that no person shall be the judge in their own case” if a president tried to pardon him or herself.

“Those are adequate deterrents, I think, so that this kind of dystopian regime is not going to evolve,” he said.

In an interview with NBC’s “Meet the Press” last year, Trump said it’s unlikely he’d pardon himself if he wins a second term. He told moderator Kristen Welker that attorneys said he could do it, but some people said it would look bad.

“Let me just tell you. I said, ‘The last thing I’d ever do is give myself a pardon,’” Trump said he recalled saying in 2021.