With not only the Russia investigation closing in on him, but five other investigations at the state and federal level, by Huffington Posts’s count, now facing Donald Trump looking into his finances, his charitable foundation, possible emoluments clause violations and other legal hazards, whether Trump can use the presidential pardon power to get himself out of criminal charges has become a subject of debate among political pundits and legal scholars.
In June, Trump himself said, via his Twitter account, that he had “the absolute right to PARDON myself.” Trump claimed that “numerous legal scholars” agreed with his view, but in fact, he was contradicted by a United States Justice Department opinion from 1974, which had that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”
But when Trump’s Supreme Court nominee Brett Kavanaugh was asked the question directly at his Senate Judiciary Confirmation hearing on Wednesday, he refused to answer — even though, as USA Today reported, he earlier in the hearing had declared, “No one is above the law in our constitutional system. No matter who you are in our system … it’s all equal justice under law.”
Kavanaugh also refused to answer directly whether it would be illegal for a president to hand out pardons in exchange for bribes, as Business Insider reporter Pedro da Costa noted.
“The question of self-pardons is something I have never analyzed,” Kavanaugh said in response to questions from Vermont Senator Patrick Leahy, as quoted by Think Progress. “It is not a question that I have not written about. It is a question therefore that is a hypothetical question that I can’t begin to answer in this context and as a nominee to the Supreme Court.”
In response to a question from California Senator Dianne Feinstein, who asked whether a president must respond to a subpoena from a criminal investigator, Kavanaugh also declined to answer, again calling the scenario “hypothetical.” He also refused to answer whether it would be proper for a president to pardon a potential witness against him in a criminal case.
LEAHY: Trump claims he has an absolute right to pardon himself. Does he?
KAVANAUGH: I can't begin to answer that Q in this context.
L: Does the president have the ability to pardon somebody in exchange for assurances that they won't testify against him?
K: Can't answer that. pic.twitter.com/DtUPP7Y9wO
— Aaron Rupar (@atrupar) September 5, 2018
Russia investigation special counsel Robert Mueller has been pursuing an opportunity to interrogate Trump for several months, as Vox.com reported, and the possibility remains that Mueller may attempt to hit Trump with a subpoena.
“Senator, I’m not going to answer hypothetical questions of that sort,” Kavanaugh told Leahy, according to Think Progress.
“I hope for the sake of the country that remains a hypothetical question,” Leahy replied.