Granting Trump total immunity would make America a global outlier

“Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.” – U.S. District Court Judge Tanya S. Chutkan

After leaving office, former President Trump landed himself in a league of his own, as the only former president in United States history to be criminally indicted. At last count, he has been charged with 88 criminal offenses in four different criminal cases. Those include United States of America v. Donald J. Trump, where he is charged with crimes stemming from his actions surrounding the January 6th insurrection, including “fraud against the United States, obstruction of an official proceedings, and denial of the right to vote.” In that case Trump has appealed to the Supreme Court, asking it to rule – for the first time in history – that the president is completely immune from criminal prosecution for “official acts” including once the president has left office.

If the Supreme Court grants Donald Trump’s request for total immunity, that would place him and the United States virtually alone among our democratic peers on the international stage. Indeed, many countries have prosecuted their former heads of state for corruption and other crimes. That is one key element that differentiates presidents from kings, and democracies from autocracies.

Trump is asking for something that no other president has done previously. In fact, as the government points out in its brief to the Supreme Court, our history and tradition demonstrate that all prior presidents – including President Nixon who upon resigning from office accepted a preemptive pardon from President Ford to forestall potential criminal prosecution – have understood that after leaving office, they were subject to potential criminal liability. And yet, Trump is relying heavily on the argument that if this immunity is not granted, it might deter future presidents from doing their job. His appeal raises a fundamental question for our democracy: does granting this request for absolute immunity outweigh our interest as citizens that no one in our democracy, not even the president, is above the law? 

Crucially, presidents in similarly situated governments the world over do not enjoy absolute immunity after leaving office. Other governments like France, Israel, South Korea and Brazil have all investigated and/or prosecuted former heads of state. Furthermore, the United States bans travel to our country by at least 55 foreign government officials for engaging in actions that undermine democratic processes and institutions and other corrupt acts. Countries such as Kazakhstan, Kyrgyzstan and Turkmenistan have presidents who enjoy absolute immunity for any acts committed while in office, with the protection surviving after they leave office. The American approach to presidential immunity should instead mirror other democracies with presidents, like France, Uruguay or Chile where a former president does not have unending immunity from prosecution.

France has a similar form of government to the United States’ democratic republic, with a parliamentary democracy that is led by a president who is directly elected by the people every five years. Similar to the president of the United States, the president of France is protected by immunity from criminal prosecution while in office. Specifically, Article 67 of the French constitution holds that “[t]hroughout his term in office” the president cannot “be the subject of any civil proceedings, nor any preferring of charges, prosecution or investigatory measures.” Once the French president has left office, however, any civil or criminal proceedings may be “reactivated” or commenced “one month after the end” of their term. 

Whereas France’s constitution explicitly lays out the parameters for the president’s immunity in Title IX, Article 67, presidential immunity in the United States has been shaped through decades of case law culminating in Supreme Court decisions stemming from the Nixon and Trump administrations. Most notably, United States v. Nixon held that a sitting president does not have absolute immunity from judicial processes like criminal subpoenas and Trump v. Vance held that a sitting president’s  “constitutionally mandated functions,” is not impaired by a criminal subpoena and no heightened standard is required to issue a sitting president a criminal subpoena.

Jacques Chirac and Trump

Thanks in part to this constitutional provision, France has become known in recent years as one of the world’s leading democracies with a willingness to prosecute former heads of state. For example, Jacques Chirac, France’s president from 1995 to 2007, was put on trial and convicted in 2011 for charges dating back to his time as mayor of Paris, for which he received a two-year suspended sentence. Specifically, the charges stemmed from allegations that he had paid members of his political party for jobs that did not exist. Chirac was also implicated in several other scandals while he was serving as president, including a vote-rigging scandal, the orchestration of kickbacks that lined his party’s pockets with illegal commissions from companies seeking to win big municipal contracts, as well as allegations that he had paid for dozens of luxury trips for himself and his family with possible fraudulent funds. 

While Chirac’s alleged crimes stemmed from his time as a local politician and not president, his case is still instructive and draws several parallels to Trump’s cases. During Chirac’s presidency, several different courts attempted to investigate the plethora of allegations against Chirac, which Chirac appealed, claiming immunity from prosecution while in office. Ultimately, France’s highest court ruled that the only crime for which a sitting president could be investigated or prosecuted was high treason, which put a hold on the various investigations as they pertained to Chirac. 

The ruling, issued by the court in 2001, has several parallels to the current situation in the United States: during his presidency, Trump  was shielded from prosecution despite the findings of the Mueller report, while his alleged co-conspirators were prosecuted. And like Chirac, Trump is now making a first of its kind argument that he should be above the law for virtually any actions taken leading up to and throughout his presidency.  

Practically speaking, the court’s ruling meant that while others in the conspiracy with Chirac were convicted in connection with the case during Chirac’s time as president, he was immune from prosecution, and even investigation or interrogation. As France’s highest court made clear in its ruling, presidential immunity from prosecution and interrogation while in office was a “fundamental pillar” of France’s constitution. But, once Chirac left office, the court held, he was subject to criminal prosecution for the crimes he committed. 

Chirac’s case has a striking application to the immunity arguments that Trump attempted to assert in the 2016 election interference case in New York. In that case, Trump argued the district attorney intends to offer “documents and testimony relating to the period in 2017 when President Trump was in office” and as such, may qualify as “official acts” by a president that would be covered by the purported immunity. Although the trial judge has already denied Trump’s claim of immunity as immaterial — since he is no longer serving as president and the crimes alleged took place before he was president — it is hard to imagine a scenario where Trump doesn’t raise this argument on appeal should he be convicted. The trial judge’s findings in Trump’s case demonstrate an important similarity to the outcome in Chirac’s case in France: while he may have been immune from prosecution while holding office, he loses that immunity once he has left office, particularly for the crimes committed outside the scope of the office of the president. The trials and tribulations of Chirac are a good demonstration of how another democracy – and a peer of the United States’ on the world stage – balances the societal tension of wanting a president to be able to conduct state business free from distraction with the need for accountability for criminal acts.

Nicolas Sarkozy and Trump

Nicolas Sarkozy’s trial and conviction for crimes committed while serving as France’s president is an even more applicable case to the one currently at the U.S. Supreme Court.

The parallels to former President Trump are stark. Sarkozy, who served as France’s president from 2007-2012, had been accused of several criminal schemes stemming from his time in office or his 2007 election campaign for president. The accusations included illegally funding his campaign through foreign actors by accepting money from Libyan dictator Muammar Gaddafi, accepting illegal campaign contributions from French heiress Liliane Bettencourt, and ordering a police investigation into a government official who had allegedly leaked information about Bettencourt’s contributions to a journalist. 

Following his electoral defeat in 2012, Sarkozy was charged and convicted by French prosecutors in two separate corruption trials related to his conduct while in office. In 2021 Sarkozy received a three-year prison sentence after he was convicted on charges of corruption and influence peddling for trying to illegally bribe a judge. Sarkozy was also convicted in a separate case of illegally financing his unsuccessful 2012 re-election campaign as part of the so-called “Bygmalion affair” where he had a public relations and event planning firm issue false invoices to hide the fact that his campaign spent more money than what is permitted under France’s election laws. Finally, he is set to stand trial in 2025 for allegations that he illegally accepted campaign funds from Gaddafi. 

Although Sarkozy’s criminal acts were serious, in some ways his corruption pales in comparison to former President Trump’s “alleged efforts to remain in power despite losing the 2020 election [which] were…an unprecedented assault on the structure of our government.” Crucially, Sarkozy’s nation held him accountable. And yet, depending upon how the United States Supreme Court rules later this year, the outcomes – and these two nations’ standing in the world stage as democracies worth emulating – could be drastically different.

The prosecution of past French presidents who lost their claim to immunity after leaving office is a useful parallel for the court and public as this historic argument happens on April 25, 2024. As U.S. District Court Judge Chutkan said in her decision at the trial court level, “America’s founding generation envisioned a Chief Executive wholly different from the unaccountable, almost omnipotent rulers of other nations at that time.” The Supreme Court should heed her reasoning and follow the example of other countries like France, and rule that once a president has left office, they are no longer immune from criminal prosecution, since the “President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.” The fact of the matter is that absolute immunity for a president in the United States “finds no support in constitutional text, separation-of-powers principles, history, or logic…” and if Trump’s argument were to be accepted by the Supreme Court, “it would upend understandings about Presidential accountability that have prevailed throughout history while undermining democracy and the rule of law.”