The majority ruling by the United States Supreme Court that the President has either absolute or presumptive immunity from criminal prosecution raises disconcerting questions about the supremacy of the rule of law in the country. In a ruling based mainly on the doctrine of separation of powers and the need to insulate the Presidency from the fear of future prosecutions, and not the text of the U.S. Constitution, the court, dominated by conservative justices, by 6:3 majority has ruled in favour of presidential immunity. The verdict does not decide whether former President Donald J. Trump will enjoy immunity from prosecution for allegedly trying to interfere with or alter the outcome of the November 2020 presidential elections that he lost to Joe Biden. Instead, it lays down a threshold test for any intended prosecution of a President to see whether the act complained of involved the exercise of a core constitutional duty, or was an official or unofficial act. In respect of a President’s core constitutional duties, the immunity is absolute; for other official acts, he enjoys presumptive immunity, that is, he is presumed to be immune unless rebutted by facts; and for unofficial or private acts, there is no immunity at all. For official acts, any prosecution is permissible only if it does not intrude into the power and authority of the executive.
The majority has remanded issues that arise in the prosecution of Mr. Trump for his attempts to influence the electoral outcome, culminating in the January 6, 2021 attack on the Capitol, to the trial court for analysis based on this ruling. The dissenting views speak with moral clarity when they question the claim that only immunity from criminal prosecution can enable a President to function in an unhesitating and bold manner. While it is valid to argue that the President should be free from intrusive probes and fear of trivial prosecution, it is inconceivable that such a powerful office should come with little accountability and the freedom to violate criminal law. Critics of the verdict see great peril for democracy in its implications. As the dissent asks, can a President take a bribe in lieu of a pardon, or authorise a rival’s assassination? The majority wants to protect the Presidency from any intrusion in the name of criminal prosecution, but what it fails to see is that Mr. Trump’s actions may have been destructive of his successor’s Presidency. While there is a passing mention of the possibility that he may have been acting in his capacity as a candidate or a party leader in some instances, it is astonishing that the verdict allows the use of the presidency as a shield even in matters that solely concern the election process.
