Is the President immune from prosecution? US Supreme Court to decide on Trump case

On Wednesday (February 29), the SCOTUS put the criminal case against Trump on hold until it decides if, and to what extent, the President enjoys immunity from criminal prosecution for conduct involving official acts during their tenure.

Here is what the charges against Trump are, what the law on presidential immunity in the US says, and how it compares to that in India.

Charges against Trump

Following the loss, Trump and his associates denied the results and repeatedly claimed the election was “stolen”. Special Counsel Jack Smith is pursuing conspiracy charges against Trump to defraud the United States, disenfranchise voters, and obstruct the process by which votes are counted and the results are certified by the US Congress on January 6, 2021.

According to the indictment detailing the charges, Trump and his associates claimed that the election was stolen while knowing that their claims were false — claims which directly led to the January 6 attack on Capitol Hill, when the election results were being certified.

Trump and Nixon: parallels and differences

The United States Constitution does not contain any specific provisions regarding presidential immunity from criminal lawsuits. But the SCOTUS has had discussions on the subject, most notably in the case of United States v Nixon during the Watergate Scandal (1972-74), involving President Richard Nixon. Republican Nixon was accused of orchestrating, and later covering up, a break-in into the headquarters of the Democratic National Committee during the 1972 presidential elections.

In 1974, a federal district court ordered Nixon to submit evidence of conversations he had with other officials from his administration, his family members, and White House staff, some of whom had already been indicted for their alleged role in the scandal. Nixon made an appeal to the SCOTUS, arguing that the President was immune from being required to submit evidence in an ongoing criminal prosecution, in order to maintain the independence of the Executive branch.

SCOTUS, however, unanimously held otherwise the very same year. It stated: “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

Notably, in contrast to Trump’s situation, Nixon himself was never indicted during Watergate. Moreover, though the SCOTUS held that the President can be required to testify and produce evidence in criminal proceedings, the question of whether a President can himself be prosecuted and held guilty for crimes committed in office, remains unanswered.

The court also did not answer whether a President could be prosecuted before being impeached from office. While the US constitution says that, following an impeachment, “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” it does not clarify whether a President must be impeached before they can be put to trial. One of the key arguments in Trump’s appeal to the SCOTUS is that he was acquitted by the US Senate in the impeachment hearings against him for allegations “closely related” to the current criminal charges in question.

SCOTUS rulings on civil immunity

In Trump’s appeal to the SCOTUS, he has relied upon another case concerning former President Nixon. In Nixon v Fitzgerald, a civilian analyst with the United States Airforce named Arthur Ernest Fitzgerald claimed that he was fired, with approval from Nixon, for testimony he gave to a congressional committee regarding inefficiencies and cost overruns for a specific model of transport planes in 1968.

The SCOTUS in 1982 held that the US President has “absolute immunity” from liability for civil damages that have arisen while discharging official duties, observing that the President holds a unique position and has responsibilities that require “utmost discretion and sensitivity”, and that civil lawsuits would “raise unique risks to the effective functioning of the government”.

However, the decision also stated that “there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions”,  and distanced itself from making any observations on criminal liability by drawing a line between Nixon v Fitzgerald and United States v Nixon.

Trump’s appeal nonetheless relies on the Fitzgerald decision, arguing that criminal liability should be folded into the principle of “absolute immunity” for actions taken while discharging official responsibilities.

India’s case

Presidents and Governors in India, under Article 361 of the Constitution, enjoy absolute protections from criminal prosecution and arrest during their terms of office, for both discharge of official duties, and beyond. While civil proceedings can be initiated for acts in personal capacity, this can only be done two months after a notice has been delivered to the President or the Governor.

However, the Prime Minister and Chief Ministers of states do not have any express provisions in any statute protecting them from criminal prosecution. Under the law, they are treated as normal citizens, though they are exempted from personally appearing before a court under Section 133 of the Civil Procedure Code, 1908.

Famously, former Tamil Nadu Chief Minister J Jayalalitha and her associates were arrested and convicted for corruption in the purchase of colour TV sets during her tenure from 1991-1996. A special court in Karnataka convicted and sentenced them to four years of imprisonment, and levied a Rs 100 crore fine on Jayalalitha in 2014.

In 2015 the Karnataka High Court overturned this verdict, and Jayalalitha passed away before the Supreme Court overruled the Karnataka HC verdict in February 2017.