he US Supreme Court majority decision in Trump v United States did not offend the rule of law.
On January 6, 2021, after a mob attacked the Capitol Building in Washington DC, Donald Trump was indicted for conspiracy to overturn the election by spreading knowingly false claims of election fraud.
Trump sought to dismiss the indictment on the basis that he had an absolute immunity from criminal prosecution for actions performed within his official responsibilities as president. This was the first occasion in the history of the US that a criminal prosecution had been brought against a former president for actions taken during his presidency.
Many aspects of Trump v United States were beset by political considerations. The judgments of the Supreme Court were split along party lines. The majority of the Supreme Court held that US presidents were in certain circumstances entitled to an immunity from criminal prosecution depending on whether the president was undertaking his core constitutional duties (full immunity), official functions (presumption of immunity) or acting unofficially (no immunity).
The minority regarded the decision as a contravention of the rule of law. They said among other things: “It makes a mockery of the principle, foundational to our constitution and system of government, that no man is above the law.”
Undoubtedly, the decision of the majority means that we are not all equal before the law. But we never have been.
The Magna Carta, together with the English Bill of Rights, are important documents in the development of the rule of law and the concept that no one is above the law. Article 9 of the Bill of Rights 1688 (Eng) provides that debates or proceedings in parliament ought not to be impeached or questioned in any court or place outside of parliament, therefore providing immunity to politicians.
Article 9 is law in both England and Australia. Politicians are immune from criminal prosecution and civil liability including defamation, albeit limited to proceedings in parliament. Immunities have existed side-by-side with the rule of law for many centuries.
Immunities are important to the proper functioning of our governments. All three arms of government in Australia enjoy some immunities from civil suits, which ordinary citizens do not.
As well as parliamentary privilege, many statutes provide for express civil and criminal immunities. The Competition and Consumer Act 2010 (Cth) provides “Nothing in this Act makes the Crown in right of the commonwealth liable to a pecuniary penalty or to be prosecuted for an offence.”
The Crown includes the prime minister, ministers and members of the public service.
Judges have the benefit of immunities both under the common law and statutory rules. The Law Council of Australia explains: “The common law and statutory rules of judicial immunity in Australia are intrinsically related to the principle of judicial independence, and critically important features of our legal system. Judicial immunity serves an important role in ensuring a judge can exercise his or her functions based on an application of the law, without external influences such as a fear of personal liability after the fact.”
Rather than weakening the rule of law, these immunities ensure the three arms of government operate effectively.
The US president has unique and extensive powers as the commander in chief of the US Armed Forces, in appointing members of his cabinet and justices of the Supreme Court, making treaties, and managing terrorism, trade and immigration. He also has a special legislative role in being able to veto legislation passed by congress.
In the 1982 decision of Nixon v Fitzgerald, the US Supreme Court unanimously held “a functionally mandated incident of [his] unique office” a former president “is entitled to absolute immunity from damages liability predicated on his official acts”.
The court’s “dominant concern” was to avoid “diversion of the president’s attention during the decision-making process”.
The majority in Trump v United States held that “potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort presidential decision-making than the potential payment of civil damages.
“The hesitation to execute the duties of his office fearlessly and fairly that might result when a president is making decisions under ‘a pall of potential prosecution’ … raises ‘unique risks to the executive functioning of the government’.”
A president inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former president’s official acts are routinely subject to scrutiny in criminal prosecutions, “the independence of the executive branch” may be significantly undermined.
If you take the view that we should all be completely equal under the law, then no one is entitled to any form of immunity.
There are positions within three arms of government including politicians, judges and members of the executive that from time to time have to make difficult decisions. It would make it difficult or even impossible to find the best people for these important roles if they have no protections. Those responsible for the development of the rule of law understood that for the three arms of government to operate effectively there had to be immunities.
The US president occupies an important position in the executive and legislative branches of the US government. If Australia’s prime minister is entitled to an immunity from certain civil actions in criminal prosecutions both in his executive and legislative capacity, then so is the president of the US.
Malcolm Stewart is president of the Rule of Law Institute of Australia
