The US Supreme Court recently reignited the debate over presidential immunity by sending back to lower courts the decision regarding the acts alleged against Donald Trump. Indicted for conspiracy and obstruction of an official procedure linked to the 2020 presidential election, Trump invokes this immunity to escape his trial.
Definition and Origins
Presidential immunity refers to the legal protection granted to the head of state against certain criminal or civil prosecutions during his mandate. This protection allows the president to carry out his duties without being distracted by legal disputes. It has its roots in British legal doctrines, adapted from the American Constitution, aimed at protecting the president against actions that could hinder the governance of the country. Historically, this protection was intended to preserve the continuity of governance and protect the president from legal actions that could disrupt his executive functions. Over time, the concept has evolved to meet the requirements of a modern democratic system, while maintaining a balance between executive independence and accountability to the law.
The Doctrine and its Applications
Presidential immunity is often justified by the need to allow the head of state to concentrate on his duties without being disrupted by potential legal cases. However, this protection is not absolute and is the subject of numerous legal interpretations and debates. In the United States, the distinction is made between official acts, acts shared with Congress, and private acts.
Official acts
Official acts are the exclusive executive functions of the president. The Supreme Court considers them to be covered by “absolute immunity”. For example, exchanges between the president and the Justice Department cannot be prosecuted or used as evidence in other proceedings. This immunity is intended to ensure that the president can make crucial decisions without fear of immediate legal repercussions. The notion of official acts includes political decisions, executive directives, and internal government communications that are essential to the proper functioning of the state. This protection is crucial to prevent legal actions from crippling the president’s ability to govern effectively.
Also see: Condemnation of Trump: can he still run for president? | VL Media (vl-media.fr)
Acts shared with Congress
For acts where the president shares responsibilities with Congress, a “presumption of immunity” is granted. This means that, unless proven otherwise, these acts benefit from protection. However, this presumption can be rebutted by a clear demonstration that the act in question goes beyond presidential functions. For example, decisions made in conjunction with members of Congress, such as approving joint laws or policies, may be protected by this presumption of immunity. This distinction is crucial to understanding how different levels of responsibility and collaboration between branches of government affect the application of presidential immunity. The goal is to preserve the integrity of policy decisions while allowing for judicial review when warranted.
Private acts
Private acts do not benefit from any protection. Any act carried out outside the official duties of the president may be subject to prosecution. For example, personal activities or business affairs conducted by the president are excluded from immunity. These acts are considered personal and have no direct relationship to the president’s official responsibilities. This distinction is essential to prevent presidential immunity from being used as a shield against illegal personal behavior or abuse of power outside the scope of official duties. It ensures that the president remains accountable for his private actions and cannot hide behind his status to escape justice.
Donald Trump affair
In Donald Trump’s case, lower courts must now determine whether his contested actions are covered by immunity. This includes pressure on Vice President Mike Pence not to certify the election results and speeches inciting the riot on January 6, 2021. Returning the decision to lower courts means that every act alleged against Trump will be scrutinized to determine whether it falls within his official duties or whether these are private acts for which he could be held responsible. This process could take time and delay ongoing legal proceedings, which could have significant repercussions on the political and judicial timetable. The complexity of these decisions could also open the way to numerous appeals and counter-appeals, further extending deadlines.
Deadline for procedures
This referral decision risks delaying legal proceedings, because each act will have to be examined individually. Jurisdictions will have to analyze the content and context of each speech and action to decide whether they are official or private. This painstaking process could result in significant delays, making it difficult to hold a speedy and efficient trial. The accumulated delays could also affect other ongoing legal cases, setting a precedent that could be used by other politicians to delay their own legal proceedings. The implications of these delays are wide-ranging, affecting not only the outcome of trials but also public perception of the effectiveness of the justice system.
Protection or obstruction of justice?
Supporters of presidential immunity argue that it is essential to protect the executive function from vexatious lawsuits and allow the president to focus on his responsibilities. However, critics say this protection can be abused to evade justice, particularly in cases of corruption or abuse of power. The debate over presidential immunity raises important questions about the balance between the need to protect the executive function and accountability. Recent developments in the Trump case illustrate the complexity of this debate and the challenges that legal systems face when it comes to applying this immunity fairly and equitably. The implications of this debate extend beyond Trump’s individual case, potentially affecting the perception and practice of presidential justice in the long term.
A dangerous precedent?
Joe Biden and other critics have called the Supreme Court’s recent decision a “dangerous precedent.” They fear it could encourage future presidents to act beyond their prerogatives, knowing they could escape prosecution through immunity. This fear is based on the potential for abuse of power and corruption, where officials might feel protected by presidential immunity to take actions that are illegal or contrary to the public interest. The risk of setting a dangerous precedent could have long-term repercussions on governance and democratic stability. Critics point out that without clear limits, presidential immunity could become a tool of impunity rather than a necessary protection mechanism.
International comparison
Presidential immunity varies greatly from country to country. In France, for example, the president enjoys almost total immunity during his mandate, but can be prosecuted after his departure. In Germany, immunity is more limited and can be lifted by parliament. These differences show that the notion of presidential immunity is not universal and can be adapted according to the needs and legal traditions of each country. International comparison helps to better understand the advantages and disadvantages of different approaches and to explore potential solutions to improve the balance between the protection of executive function and accountability before the law. By studying how other nations address this issue, the United States may find ways to reform and clarify its own application of presidential immunity.