Justice Gorsuch Defends Supreme Court’s Presidential Immunity Decision in Interview

‘All the court did in this case was simply apply that same precedent and idea to the criminal context,’ Justice Neil Gorsuch said.

United States Supreme Court Justice Neil Gorsuch at the Supreme Court in Washington, on Oct. 7, 2022. Alex Wong/Getty Images

U.S. Supreme Court Justice Neil Gorsuch this week defended the high court’s decision that affirmed presidents have immunity for their official acts, in a case involving a challenge by former President Donald Trump.

In early July, the Supreme Court issued a 6–3 decision, authored by Chief Justice John Roberts, that presidents cannot be prosecuted for actions that were within their constitutional powers. It tossed a lower court’s ruling that rejected Trump’s claims of immunity from federal charges relating to his activity after the 2020 election.

During an interview with Fox News this week to promote his book, Gorsuch was asked about the decision. He said it was an extension of the Supreme Court precedent in Nixon v. Fitzgerald, which granted President Richard Nixon immunity from civil lawsuits arising from his official actions.

Citing the court’s 1981 ruling, which found that presidents are “entitled to absolute immunity from damages liability predicated on his official acts,” Gorsuch said that the Supreme Court was concerned that civil lawsuits could prevent the executive branch from “exercising the powers” of their office.

“He’d be overwhelmed,” Gorsuch told Fox News, referring to a president. “All the court did in this case was simply apply that same precedent and idea to the criminal context.”

In a separate interview with The Associated Press (AP), the justice reiterated the view that the high court’s July ruling was necessary to prevent presidents from being hampered while in office by threats of prosecution once they leave.

The court had to deal with an unprecedented situation, Gorsuch said. “Here we have, for the first time in our history, one presidential administration bringing criminal charges against a prior president. It’s a grave question, right? Grave implications,” he said.

In his interview with the AP, Gorsuch made few references to the immunity decision and primarily focused on his book and his belief that there are too many federal and legal rules that ordinary Americans are unaware of.

“There were just so many cases that came to me in which I saw ordinary Americans, just everyday, regular people trying to go about their lives, not trying to hurt anybody or do anything wrong and just getting whacked, unexpectedly, by some legal rule they didn’t know about,” he said.

The problem, he said, is that there has been an explosion of laws and regulations, at both the federal and state levels in recent years. The sheer volume of Congress’ output for the past decade is overwhelming, he said, averaging 344 pieces of legislation totaling 2 million to 3 million words a year.

Referring to his book, titled, “Over Ruled: The Human Toll of Too Much Law,” Gorsuch said, “I wanted to tell the story of people whose lives were affected” by such regulations.

The Trump-related election case is now back in the hands of U.S. District Judge Chutkan, who this week ordered an Aug. 16 hearing on how to move forward with the case, which was brought by special counsel Jack Smith. The judge also denied a motion from Trump’s attorneys to dismiss the case.

The Aug. 16 hearing will be the first in about seven months in which both parties will appear in the courtroom after the judge paused the case while Trump appealed the matter.

“After reviewing Defendant’s evidence and arguments, the court cannot conclude that he has carried his burden to establish either actual vindictiveness or the presumption of it, and so finds no basis for dismissing this case on those grounds,” Chutkan wrote in her 16-page order.

The judge found that Trump did not provide enough evidence to suggest he was singled out for prosecution for political purposes.

“Finding no evidence of discriminatory purpose in the sources Defendant cites, the court is left only with his unsupported assertions that this prosecution must be politically motivated because it coexists with his campaign for the Presidency,” she wrote.