President Donald Trump’s Supreme Court nominee, Amy Coney Barrett, said on Wednesday it was an “open question” whether Trump could pardon himself and added that the top U.S. judicial body “can’t control” whether a president obeys its decisions.
She also sought to allay Democratic fears that she would be an automatic vote to strike down the Obamacare healthcare law in a case due to be argued Nov. 10, promising an “open mind.”
Barrett wrapped up about eight hours of questioning on the third day of her four-day Senate Judiciary Committee confirmation hearing. The committee will hear on Thursday from witnesses both for and against her confirmation, but Barrett herself will not be present.
Trump has said he has the “absolute power” to pardon himself, part of his executive clemency authority. Asked by Democratic Senator Patrick Leahy whether a president could pardon himself for a crime, Barrett said the “question has never been litigated.”
“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 added.
Trump also has issued executive clemency to political allies and friends.
Barrett, a conservative federal appellate judge, is Trump’s third selection for a lifetime Supreme Court post. Trump has asked the Senate, controlled by his fellow Republicans, to confirm Barrett before the Nov. 3 U.S. election.
While saying that “no one is above the law,” Barrett twice declined to answer directly when Leahy asked whether a president who refuses to comply with a court order is a threat to the U.S. constitutional system of checks and balances within the three branches of government.
“The Supreme Court can’t control whether or not the president obeys,” Barrett said.
Supreme Court rulings, Barrett said, have the “force of law,” but the court lacks enforcement power and relies on the other branches of government.
“A court can pronounce the law and issue a judgment but it lacks control over how the political branches respond to it,” Barrett added.
Barrett declined to discuss whether Trump was violating the U.S. Constitution’s “emoluments” clause with his business dealings. The provision bar presidents from taking gifts or payments from foreign and state governments without congressional approval.
“I don’t know if I would characterize it as an anti-corruption clause,” Barrett said, disagreeing with Leahy, adding that it was designed to “prevent foreign countries from having influence.”