If Donald Trump loses the election, there is a growing chance that when he leaves office he could be prosecuted for a variety of possible crimes, including obstruction of justice, lying to investigators, and tax fraud. With regard to the latter, it would likely be a matter of New York State law—the Manhattan district attorney’s office suggested last month in a court filing that it had grounds to investigate Trump and his businesses for that sort of crime—and there would be little he could do about it. As for the obstruction and lies, once Trump leaves office, he will no longer be able to trot out his absurd claim of presidential immunity as his lawyers have done concerning unrelated matters over the course of his first term. But given that these would be federal crimes, what he might try to do is pardon himself on the way out the door. “I wouldn’t be surprised if he issues a broad, sweeping pardon for any U.S. citizen who was a subject, a target, or a person of interest of the Mueller investigation,” Norm Eisen, who served as counsel to House Democrats during Trump’s impeachment, told New York magazine in September. The magazine added that any such case would likely make it to the Supreme Court. And you know who’s about to ascend to the Supreme Court? Why, it’s Amy Coney Barrett, who apparently has an open mind re: the prospect of the president pardoning himself!
During Senator Patrick Leahy’s round of questioning on the third day of confirmation hearings, he asked Barrett: “President Trump claims he has an absolute right to pardon himself. For 200 years the Supreme Court has recognized common law principle that nobody can be a judge in their own case.… Does a president have an absolute right to pardon himself for a crime?” And the answer wasn’t a simple no!
“Senator Leahy,” Barrett said, “so far as I know that question has never been litigated, that question has never risen, that question may or may not arise, but it’s one that calls for legal analysis of what the scope of the pardon power is. So because it would be opining on an open question when I haven’t gone through the judicial process to decide it, it’s not one on which I can offer a view.”
Barrett is in good company with another one of Trump’s Supreme Court nominees who can also conceive of a scenario in which it would be fine for a president to pardon himself:
Of course this is just one of the many issues Barrett has refused to weigh in on, seemingly because she doesn’t want her answers entered into the record or replayed for all the world to see. On the second day of her hearings, she dodged questions on abortion, the Affordable Care Act, and more, apparently forgetting her opinions are extremely clear. So there’s probably a good reason she claimed she couldn’t weigh in on whether the president would be able to pardon himself, and needing to first go “through the judicial process“ presumably isn’t it.
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