Justice Alito asked whether every president could just pardon themselves right before leaving office.
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Before leaving the presidency, Donald Trump considered whether to pardon himself.
"I was given an option to pardon myself. I could've pardoned myself when I left," Trump once told NBC News. "People said, 'Would you like to pardon yourself?' I had a couple of attorneys that said, 'You could do it if you want.'"
Trump opted against it. But that was before he was the subject of four criminal prosecutions.
The Supreme Court has never ruled on whether such a move would be permissible. But in oral arguments on Thursday, they danced around the question.
None of the justices tipped their hand on how they might decide the issue. But two conservative justices — Samuel Alito and Neil Gorsuch — demonstrated that they were taking the question seriously.
The purpose of the hearing was for the Supreme Court to hear arguments over whether Trump should be immune from criminal prosecution for his conduct as president.
Trump's lawyers have argued that the high court should recognize a form of immunity that would shield him from Justice Department Special Counsel Jack Smith's indictment over his attempts to overturn the results of the 2020 presidential election.
If Trump were to pardon himself, he would be able to get rid of the case, as well as another case brought by Smith, over his hoarding of classified documents at Mar-a-Lago after leaving the presidency.
Gorsuch, himself a Trump appointee, entertained hypothetical questions about what presidents might do if they had to live with the constant worry that their successors would pursue criminal cases against them. He asked whether the dynamic would be an incentive for presidents "to try to pardon themselves" before leaving office.
"Perhaps, if he feels he has to, he'll pardon himself every four years from now on," Gorsuch said.
Gorsuch appeared cautious about tackling the subject.
"We've never answered whether a president can do that," Gorsuch said. "Happily, it's never been presented to us."
Alito, on the other hand, seemed eager to dig into the subject. He told Michael Dreeben, the lawyer representing Smith's team, that the question might be crucial as the Supreme Court deliberates the scope of presidential immunity. If the court decides former presidents could be prosecuted, then the obvious next step would be that they'd all try to pardon themselves, Alito said.
"Don't you think we need to know at least the Justice Department's position on that issue in order to decide this case?" Alito asked. "Because if a president has the authority to pardon himself before leaving office, and 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 referred to a 1974 memorandum from the Justice Department's Office of Legal Counsel deeming "that there is no self-pardon authority," while noting the courts haven't decided the issue. But, he said, self-pardoning would "contradict a bedrock principle of our law that no person shall be the judge in their own case" and come with "political consequences," like the political fallout former President Gerald Ford experienced after giving Richard Nixon a blanket pardon.
"Those are adequate deterrents, I think, so that this kind of dystopian regime is not going to evolve," Dreeben said.
If Trump wins the 2024 election over President Joe Biden, he could find other ways to scuttle the two Justice Department indictments against him without necessarily pardoning himself.
As the leader of the executive branch, he may be able to order the Justice Department to withdraw the indictments, although that may not insulate him from the cases being revived under another administration.
Trump is currently on trial in New York under state criminal charges alleging he falsified business documents.
Because those aren't federal charges, a pardon couldn't make that case go away, but it could introduce complications.
The Manhattan district attorney's office has alleged that Trump faked documents in order to cover up federal election laws, keeping secret an affair with Stormy Daniels ahead of the 2016 election.
In Georgia, where Trump faces another set of state-level charges, immunity is similarly out of reach. In order to obtain a pardon, he would have to be convicted and serve at least five years of a sentence.
