Justice Neil Gorsuch is defending the Supreme Court’s controversial decision to grant sweeping immunity to former President Donald Trump in a series of interviews, at one point framing the ruling as an extension of precedent.
Gorsuch, who was Trump’s first nominee to the high court, told Fox News in an interview this week that the decision in Trump’s election subversion case was a natural extension of a 1982 precedent that granted former President Richard Nixon and his successors immunity from civil lawsuits for their official actions.
Though justices rarely grant interviews, they often sit for questions when promoting a book. In Gorsuch’s case, the timing happens to coincide with the end of a contentious term in early July and continuing fallout from the divisive ruling for Trump, which has reenergized calls on the left for structural changes and ethics reform for the Supreme Court.
Gorsuch cited Nixon v. Fitzgerald in the interview, saying the court was concerned at the time that unfettered civil lawsuits would “chill” a president from “exercising the powers” of the presidency.
“He’d be overwhelmed,” Gorsuch told Fox. “All the court did in this case was simply apply that same precedent and idea to the criminal context.”
In the Nixon case, the high court steered clear of questions about criminal immunity for former presidents. In the Trump case, special counsel Jack Smith argued that future presidents were unlikely to face politically motivated prosecutions – a position the Supreme Court’s 6-3 conservative majority ultimately found unpersuasive.
In addition to granting Trump and his successors immunity for most official actions, the Supreme Court’s decision last month also limited Smith’s ability to present evidence of that conduct as he attempts to prosecute Trump for unofficial actions he took after the 2020 election.
The election subversion case is now back in the hands of US District Judge Tanya Chutkan, who has scheduled an August 16 hearing to consider how to move forward.
Gorsuch also addressed the immunity decision in an interview with the AP, describing it as a “grave question” with “grave implications.”
But reporting from CNN suggests the nine justices quickly split along ideological lines in the case, and that Chief Justice John Roberts made little effort to find a middle ground outcome that might have appealed to the court’s three liberals. Roberts, according to sources familiar with the negotiations, believed he could persuade people to look beyond Trump.
The decision prompted President Joe Biden to propose term limits for Supreme Court justices and a constitutional amendment to strip presidents of immunity from criminal prosecution. Those proposals are unlikely to advance because they are viewed by most Republicans as a power grab.
Gorsuch’s new book, “Over Ruled: The Human Toll of Too Much Law,” published Tuesday. In it, the justice focuses on the stories of Americans ensnared in what he describes as an explosion of regulations and federal laws.
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