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Justice Neil Gorsuch (left) (Photo by MELINA MARA/POOL/AFP via Getty Images), Justice Samuel Alito (right) (AP Photo/J. Scott Applewhite, File)
Justice Neil Gorsuch was clear on Thursday during oral arguments over Donald Trump’s immunity claims that he really doesn’t want to see the day a sitting president attempts a self-pardon, since that would force the justices to make a decision on that unprecedented issue. But as arguments went on, Justice Samuel Alito put a DOJ lawyer on the spot and asked him to reveal the government’s view on the issue in real-time, suggesting it was key to “decide this case.”
Justice Gorsuch made his commentary on presidential self-pardons in passing while questioning Trump attorney John Sauer, stating that “happily” the high court has never had to answer whether a president has the power to wipe away their own federal criminal exposure.
“We’ve never answered whether a president can do that,” Gorsuch said, before adding: “Happily, it’s never been presented to us.”
Gorsuch suggests presidents must have immunity for fear that future presidents would go after them, or that presidents might self-pardon themselves.
“We’ve never answered whether a president can do that, happily it’s never been presented to us.”
By then, it’ll be too late, Neil.
— Mike Sacks (@MikeSacksEsq) April 25, 2024
If it seemed like that would be the last mention of self-pardons, Alito dashed those hopes while questioning attorney Michael Dreeben, appearing on behalf of the DOJ and the Special Counsel’s Office.
“On the question of whether a president has the authority to pardon himself, which came up earlier during the argument, what’s the answer to that question?” Alito asked, in apparent reference to Gorsuch’s comments.
“I don’t believe the Department of Justice has taken a position,” Dreeben replied. “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 this court had not addressed it either.”
“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 pressed Dreeben, asking for an answer then and there. “Because if a president has the authority to pardon themself 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 from anything that they might have conceivably been charged with committing?”
Justice Alito asks Michael Dreeben, an attorney arguing for the federal government, about whether a president can pardon himself.
Alito: “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?” pic.twitter.com/vDWFVo6bG8
— PBS NewsHour (@NewsHour) April 25, 2024
Dreeben said, “I really doubt that, Justice Alito.”
He said that the scenario “really presupposes a regime that we have never had” — except for Richard Nixon’s presidency and Trump’s.
“I think the political consequences of a president who asserted a right of self-pardon that has never been recognized, that seems to contradict a bedrock principle of our law that no person shall be the judge in their own case, those are adequate deterrents, I think, so that this kind of dystopian regime is not going to evolve,” Dreeben concluded.
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