Gorsuch Guides Supreme Court in Trump Immunity Case: Crafting Timeless Rules

Justice Neil Gorsuch on Thursday took control of the debate at the Supreme Court in a case brought by former President Donald Trump on whether he enjoys immunity from criminal prosecution.

During Thursday’s arguments over Trump’s bid to have total presidential immunity against special counsel Jack Smith‘s four-count election subversion indictment, Gorsuch suggested that former presidents like Trump must have immunity or else future presidents could be targeted for prosecution and could therefore seek to pardon themselves before leaving office.

“We’ve never answered whether a president can do that; happily, it’s never been presented to us,” Gorsuch said of whether a president can pardon himself. Gorsuch indicated that he dreads the idea of having to decide whether presidents can use such authority on themselves.

Gorsuch, Trump’s first of three appointees to the high court, underscored the historical significance of the former president’s case and the Supreme Court’s eventual ruling on the matter of presidential immunity.

“I’m not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives,” Gorsuch said, adding, “We’re writing a rule for the ages.”

“What would happen if presidents were under fear that their successors would criminally prosecute them for their acts in office?” Gorsuch asked, citing hypotheticals other justices used, such as one hypothetical about whether former President Barack Obama could be prosecuted for authorizing a drone strike on civilians.

Gorsuch later became testy during an exchange with Michael Dreeben, a veteran Supreme Court litigant who represented the special counsel’s office in the nearly three-hour oral argument session.

“Did you agree that there are some core functions of the executive that … Congress cannot criminalize?” Gorsuch asked.

“Yes,” Dreeben replied. “We call it an ‘as applied Article II challenge.’”

Gorsuch said he wanted to explore the question further.

“Let’s say a president leads a mostly peaceful protest sit-in in front of Congress because he objects to a piece of legislation that’s going through. And it, in fact, delays the proceedings in Congress. Now under 1512(c)(2), that might be corruptly impeding an official proceeding. Is that core and therefore immunized or whatever word euphemism you want to use for that? Or is that not core and therefore prosecutable?” Gorsuch asked.

Dreeben answered that in such a scenario, the president’s action would not be considered a “core” executive action, and he explained that the kinds of activities that the court has acknowledged exist are in a “pretty small set.” However, the government attorney admitted that a former president probably could not be prosecuted for the conduct Gorsuch described after that president leaves office.

The special counsel’s lawyer also came under heavy scrutiny from several of the court’s Republican-appointed members, including Chief Justice John Roberts and Justice Brett Kavanaugh, who asked whether the laws Trump is accused of violating can be applied to a former president and whether an appeals court decision that found Trump is not entitled to immunity would have devastating consequences for democracy.

Of all the nine justices, Gorsuch appeared to be steering his like-minded colleagues toward a decision that could result in sending the 2020 subversion case back to the district court in Washington for more hearings with instructions about what acts constitute official or private actions.

“After listening to arguments at the Supreme Court, it’s clear the justices will narrowly hold the President of the United States — any president — is immune from criminal prosecution for official (not personal) acts,” Mike Davis, a Trump ally and former clerk to Gorsuch, told the Washington Examiner in a statement.

The direct result of such a decision would further delay the Trump election subversion case from making it to a trial, though it’s not certain that delay would persist until after the November 2024 election.

A Supreme Court case heard earlier this month could also threaten half of Smith’s 2020 election subversion indictment. Trump is facing two obstruction of justice counts, and the nine justices are prepared to decide whether hundreds of Jan. 6 riot defendants and Trump were incorrectly charged under the 1512(c)(2) statute.

If Trump won the presidency again, it would also open up the high court to the possibility of having to weigh in on whether a former president can pardon himself, as Trump has signaled his intent to quash the election interference case and Smith’s other classified documents indictment.

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER

Gorsuch appeared adamant that it is more important now to determine the breadth of immunity former presidents may enjoy rather than risk a scenario where the high court must determine whether one can pardon himself.

Trump is facing 88 charges altogether in his two federal criminal cases, along with a criminal trial in New York over an alleged hush money scheme and a sweeping racketeering indictment in Fulton County, Georgia.