Supreme Court Justice Neil Gorsuch expressed concerns during recent arguments that former President Donald Trump, and by extension, future presidents, should have some level of immunity from prosecution after leaving office. Gorsuch, who was appointed by Trump, suggested that without such immunity, future presidents might face targeting by political opponents once out of office.
“It didn’t matter what the president’s motives were… that’s something courts shouldn’t get engaged in… I am concerned about future uses of criminal law to target political opponents based on accusations about their motives,” Justice Gorsuch stated during the April 25 hearing.
The Supreme Court was hearing arguments on whether the former president should be immune from prosecution in an election-related case brought by special counsel Jack Smith. Trump appealed the case, arguing for absolute immunity.
Justice Gorsuch raised the possibility that future presidents might preemptively pardon themselves before leaving office if the Supreme Court doesn’t establish some level of immunity. He expressed reluctance about making a decision on whether a president can self-pardon, stating, “We’ve never answered whether a president can do that; happily, it’s never been presented to us.”
“What would happen if presidents were under fear that their successors would criminally prosecute them for their acts in office?” Justice Gorsuch asked, citing a hypothetical situation where former President Barack Obama could face prosecution for ordering a drone strike that killed civilians.
Gorsuch, along with other conservative-leaning justices, expressed more concern about the Supreme Court’s ruling on immunity in general rather than Trump’s specific charges. “We’re writing a rule for the ages,” he stated.
During the hearing, many justices appeared skeptical about declaring President Trump absolutely immune from prosecution in the Smith case. However, some justices suggested that a recent ruling by a District of Columbia appeals court rejecting Trump’s immunity arguments should be revisited.
Justice Samuel Alito noted that “whatever we decide is going to apply to all future presidents.”
During the hearing, Justice Department lawyer Michael Dreeben attempted to focus on President Trump, but Justices Gorsuch and Brett Kavanaugh intervened. “This case has huge implications for the presidency, for the future of the presidency, for the future of the country,” Justice Kavanaugh said.
Meanwhile, Jack Smith’s legal team is seeking a speedy resolution. The court typically issues its last opinions by the end of June, approximately four months before the election. U.S. District Judge Tanya Chutkan, who would preside over the trial, stated that pre-trial issues could take up to three months.
Based on the justices’ questioning last week, it remains unclear whether the Trump federal election case will go to trial before the November election, some legal analysts have said.
Before the Supreme Court, President Trump’s attorney D. John Sauer argued that former presidents should be absolutely immune for acts they did under their official capacity as president. Sauer warned that without such immunity, prosecutors motivated by political animus could target them with spurious charges after leaving office.
However, some justices, including Chief Justice John Roberts, indicated that presidents should not be able to escape all forms of prosecution. Chief Justice Roberts raised a hypothetical scenario in which a president is indicted for receiving a bribe in exchange for an ambassadorial appointment, stating, “That’s like a one-legged stool, right?”
On April 25, President Trump had hoped to be present at the Supreme Court. Instead, he was in a New York courtroom, standing trial on charges that he falsified business records to hide damaging information from voters. This included directing hush money payments to an adult film performer to suppress her claims of an encounter with him, which he denies.
