Justice Gorsuch seemed to indicate at least limited immunity from prosecution for presidents during Supreme Court arguments

 May 16, 2024

There has been ample speculation about how the Supreme Court may rule on former President Donald Trump's claim of presidential immunity from prosecution following oral arguments on April 25.

Justice Neil Gorsuch, the first of Trump's three appointees to the high court, seemed to signal through his questions and commentary that he, and likely others, would favor at least some level of immunity for former presidents, according to the Conservative Brief.

That indication came by way of Gorsuch's apparent warnings that a lack of immunity for ex-presidents would result in more politically motivated prosecutions in the future as well as raise the unprecedented question of whether or not a president can issue a preemptive pardon for themself before leaving office.

Court will be "writing a rule for the ages"

The Washington Examiner reported at the time that Justice Gorsuch seemingly "took control" of the April 25 hearing and helped "steer" the discussion about the theoretical existence and limitations of immunity from prosecution for former presidents, at least in terms of their official acts while in office.

"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 at one point. "We're writing a rule for the ages."

He addressed a few hypothetical situations raised in Trump's brief and by others, such as the possibility of criminal charges for former President Barack Obama's authorization of lethal drone strikes on civilians, and asked, "What would happen if presidents were under fear that their successors would criminally prosecute them for their acts in office?"

Gorsuch further noted the potential for future presidents to preemptively pardon themselves as a hedge of protection against partisan prosecutions after exiting office, and remarked, "We've never answered whether a president can do that; happily, it's never been presented to us."

Which acts of a president are prosecutable or not?

At another point in the proceedings, according to the Examiner, Justice Gorsuch attempted to drill down on the differentiation between "core functions of the executive" that would presumably be off-limits to prosecutors and personal acts that would be prosecutable.

In doing so, he brought into the conversation another major case the Supreme Court is currently considering with significant implications for the special counsel's case against former President Trump, as well as hundreds of Jan. 6 Capitol riot defendants -- the alleged misapplication of an "obstruction" charge under 18 U.S.C. § 1512(c)(2).

"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," Gorsuch said to federal prosecutor Michael Dreeben. "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?"

Case likely to be further delayed as limits to presidential immunity are figured out

In the end, conservative judicial reform advocate Mike Davis, who formerly clerked for Justice Gorsuch, told the Examiner, "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."

Indeed, that was the overall take of SCOTUSblog's analysis of the oral arguments on April 25 -- that a majority of the court would likely rule that former presidents enjoy a limited form of immunity from prosecution for official acts while in office.

As a result, in all likelihood, former President Trump's case will be remanded back to the D.C. District Court that initially rejected his immunity claim with instructions to determine the actual limitations of an ex-president's protection from prosecution as it pertains to his charged conduct.

That will undoubtedly lead to several months' worth of motions and hearings and rulings, each of which are appealable, that will further delay the start of a trial until after the election -- if a trial even ever occurs, given the probability that Trump would quash the charges against him if he wins re-election in November.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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