Supreme Court Weighs Presidential Immunity in Trump’s Election Subversion Case, Raises Potential Impact on Self-Pardon Scenarios and Prosecution of Former Presidents

During arguments at the Supreme Court regarding former President Donald Trump’s bid for total presidential immunity against special counsel Jack Smith’s election subversion charges, Justice Neil Gorsuch expressed concern about future presidents being targeted with criminal prosecutions and potentially seeking self-pardons before leaving office. He suggested that previous Presidents like Trump should enjoy immunity or face the risk of having to decide whether they can use such authority on themselves. Gorsuch also questioned Michael Dreeben, a veteran Supreme Court litigant representing Smith’s team in almost three hours of oral argument session. Justice Brett Kavanaugh and Chief Justice John Roberts also posed questions about applying laws Trump is accused of violating to former Presidents and the potential consequences for democracy if they could be prosecuted after leaving office. The arguments seemed likely to narrowly hold that any president, current or past, enjoys immunity from criminal prosecution only for official actions instead of private acts, thus causing delays in further legal action regarding Trump’s case until more hearings are conducted with specific instructions about what constitutes official and personal activities. This decision could also impact half the indictments Smith is seeking to secure against hundreds of January 6 riot defendants and potentially affect any future self-pardon scenario by another president. In February, an alternative federal court ruling in a different case suggested that former Presidents may not be entitled to immunity from criminal prosecution for personal acts committed after leaving office or during their term. Trump currently faces charges including obstruction of justice against both his election subversion and the classified documents cases.